Moderated by Professor Velimir Zivkovic (University of Warwick), this session of our International Arbitration Forum reframed the oral hearing as something more fundamental than a ceremony, the moment where credibility is tested, doubts are surfaced, and cases truly crystallise. The question was not whether hearings are traditional, but when they are necessary, and how best to design them.
Redefining the Hearing
Our panel of experts drew a simple line: documents-only can decide narrow, low-value disputes; complex matters—especially those turning on witness credibility or competing expert models—benefit from a hearing. The hearing is not a theatre; it is a structured environment for clarification. Tribunals probe; counsel adapt; clients see the process at work. In some specialist fora (e.g., certain sports matters), the record can be sufficiently self-contained to dispense with a hearing, but value and complexity are distinct variables; complexity usually tips the balance.
Preparation Over Performance
The prevailing ethic was unapologetically practical: over-prepare, then prepare again. Counsel should map the issues tree, read the record more than once, rehearse examinations, and draft closings before day one. Each night, the transcript should be mined and the closing arguments refined. Preparation is not about omniscience; it is about options. When the unexpected occurs, an unhelpful answer, a cultural nuance, or an emergent theme, prepared teams adjust without losing the thread.
Truth-Testing: The Cross-Examination
Whilst openings summarise, the cross-examination tests. That was the consensus from the group who emphasised that controlled, purposeful questioning to expose gaps, stress-test assumptions and, where apt, surface concessions (including the provenance and reliability of written statements) is best. Tribunals weigh credibility heavily; a coherent, clipped cross can be decisive. Performance is a distraction; precision is the point.
Closings vs Post-Hearing Briefs
Practice diverges by legal culture and seat. Some tribunals prefer live closings; others rely on post-hearing briefs with focused questions. The panel’s middle path: use closings to dispel doubts in the room, but avoid exhaustion-driven oratory at 6 p.m. on day five. Consider a short, later closing (even virtual) or phase-based summations (after fact witnesses, after experts). Where briefs are ordered, set timelines, page caps, and question lists that promote clarity, not repetition.
Proportionality and Cost
Hearings are expensive: the venue, travel, teams, witness logistics, and expert hot-tubs all cost a lot of money. Proportionality is not austerity; it is design. Reserve full hearings for disputes where live testing adds measurable value. For smaller matters, lean on the record, targeted written questions, or constrained mini-hearings. The metric is not “hours spent” but “risk resolved”.
Culture and Context
Hearing design is coloured by legal tradition. Document-led systems may resist expansive oral advocacy; common-law traditions may expect it. Expert conferencing (“hot-tubbing”) suits some tribunals more than others. Effective counsel calibrate advocacy style, witness handling, and evidential sequencing to the tribunal’s mixed backgrounds civil, common, technical, and to the dispute’s industry context.
A Practitioner’s Practical Framework
1) Diagnose the case. What truly decides it: law, facts, credibility, models? If credibility or expert clash is central, plan for a hearing.
2) Design the format. Full hearing, mini-hearing, or documents-only. Choose deliberately. Lock scope, witness lists, time allocations, and whether experts will confer.
3) Prepare with intent. Build an issues map; script and stress-test examinations; pre-draft closings; organise demonstratives that mirror the transcript’s structure.
4) Run the room. Invite tribunal questions; adapt sequencing to emerging themes; keep clients briefed and aligned to avoid off-the-cuff interventions.
5) Close the loop. If live closings are used, keep them focused on resolving doubt; if briefs follow, propose targeted questions and strict constraints that drive precision.
From Ritual to Results
The hearing is not an artefact of tradition but a tool for decision-quality. Used sparingly yet confidently designed around clarity, credibility and proportionality it converts a static record into tested evidence and a tribunal’s uncertainty into answers. In complex cases, that is rarely optional; it is how justice gets done.
