The Future Practice of Law
Edited by William van Caenegem and Mary Hiscock
Chapter 15: Advocacy before an international arbitral tribunal
Litigation in domestic courts involves people, on both the bench and bar, who are trained in the same schools, have practised in the same legal regime for years and are therefore more familiar with the same legal culture, its specific practices and norms. Often the players will know or are familiar with each other. The same could not be said for the players in international arbitration. There, lawyers often deal with others from a totally different legal system, practice culture and working language, and whose values and understanding of legal principles are quite alien from theirs. The adjudicators, members of the arbitral tribunal, are the fact finders and the final arbiter of the rights of the parties. They (or at least the majority in a three-member tribunal, namely, the other party’s nominated arbitrator and the chair of the tribunal) often come from the leading ranks of the legal profession from another jurisdiction, different from those of the parties and counsel in the arbitration. It is not uncommon in international arbitration for the law of the arbitration agreement, the law of the arbitration (determined primarily by the seat of the arbitration), and the substantive law of the contract, to have little or no link at all with each other. Sometimes the arbitrators may have no familiarity or practical knowledge of any of them. Often where these different laws conflict with each other, the persuasive ability of counsel can make the crucial difference in the eventual outcome of the arbitration.
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