S.I Strong, Associate Professor of Law at the University of Missouri and contributor to this blog, wrote recently the interesting article International Commercial Arbitration: Special Skills, Special Sources, American Review of International Arbitration, Vol. 20, No. 2, 2010. Professor Strong discusses practical issues confronting young attorneys in international commercial arbitration.
Here is an excerpt:
International commercial arbitration is an advocacy-oriented endeavor, with parties engaging particular lawyers precisely because the parties believe that their chance of success increases proportionally with the skill and experience of their advocates. Clients are not alone in this perception of expertise – arbitrators and lawyers have also indicated that a good advocate makes a material difference in the outcome of a dispute.
Given the central role that advocacy plays in arbitral success, it is ironic how little practical issues are discussed in legal scholarship. Instead, journals and texts are filled with doctrinal research, with other forms of inquiry, such as theoretical analysis and empirical studies, appearing to a lesser extent. While it is true that some pieces exist on best practices in advocacy, they appear most frequently in practitioner-oriented books or periodicals, rather than in the more rigorous academic journals, and tend to focus nearly exclusively on oral skills. Discussions concerning advocacy in international commercial arbitration, particularly regarding research and writing, are particularly sparse.
Some may say there is little need for scholarly work regarding written advocacy because lawyers obtain the necessary skills through other means, such as law school, continuing legal education and mentorship. While this may be true of domestic litigation skills, it is not the case with respect to international commercial arbitration, where traditional methods of practical training are minimal at best and non-existent at worst.
The situation is particularly dire with respect to matters concerning research sources and methodologies. This is highly problematic, since the legal authorities used in international commercial arbitration are unique, and newcomers to the field often do not know that certain materials exist or how to find them. This puts inexperienced lawyers at a distinct disadvantage, since one cannot build a solid legal argument without the underlying authorities.
Furthermore, the best written submissions in this area of law adopt a purposeful blend of common-law and civil-law techniques. Any advocate who is unaware of how lawyers from different systems view legal authority will be unable to craft arguments that demonstrate the kind of sophistication and complexity that are the hallmarks of a good international practitioner. Again, this puts newcomers to the field at a comparative disadvantage.
Fortunately, it is relatively easy to remedy these problems by increasing the cross-cultural dialogue about the different strategies that can be used to produce exemplary written submissions in international commercial arbitration. Doing so will help preserve the distinctive aspects of this area of law and ensure that the process remains as straightforward and cost-effective as possible by avoiding inappropriate legalism based on national court practices.
This article attempts to fill this gap in the literature by proceeding as follows. First, section II defines the scope of the problem, beginning with the likely reasons behind the dichotomy between doctrinal and practical education and scholarship. This portion of the article also explains why it is important that experts in international commercial arbitration provide guidance on best practices in legal research. Section III provides the first step toward increasing access to the necessary authorities and developing the necessary practical skills by describing how experienced advocates and arbitrators research and present legal arguments in international commercial arbitrations. Section IV concludes the article by identifying a number of areas regarding research and written advocacy that could benefit from increased attention from academics and scholar-practitioners in the international arbitral community.