Advocacy in International Arbitration - WAMR 2013 Vol. 7, No. 1

TOBY LANDAU QC is a barrister at Essex Court Chambers in London, and a member of the New York Bar, specializing in international arbitration. As arbitrator, he has served in over 70 major international cases, including many investment treaty cases (BITs and NAFTA) and international commercial cases (ICC, LCIA, SCC, HKIAC, SIAC, AAA, UNCITRAL amongst many others) in numerous countries worldwide. As counsel, he has appeared in over 270 major international arbitrations, as well as many of the landmark arbitration cases before the English Courts (including the UK Supreme Court) and foreign courts. He is a Director of the LCIA; a Fellow (and previously Trustee) of the Chartered Institute of Arbitrators and Chartered Arbitrator; a UK delegate to the UNCITRAL Working Group on Arbitration (since 2000); a member of the IBA sub-committee responsible for drafting the IBA Rules on Evidence 2010; and one of the draftsmen of the English Arbitration Act 1996; the Pakistan Arbitration Ordinance of 2005; the Mauritius Arbitration Act of 2008; and the LCIA India Rules. He is a Visiting Professor at Kings College London (arbitration law), and a visiting lecturer at the Pakistan College of Law in Lahore. He was the most junior of his year to be made a QC (in 2008). Before this, he received the Chambers & Partners Award for “Junior Barrister of the Year” in international arbitration in both 2005 and 2007 (short-listed also in 2006), and was voted “first” amongst the world’s “45 under 45” in this field.

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Originally from World Arbitration And Mediation Review (WAMR)

It is a test for any advocate to speak to people while they are eating, so I am going to ask you, if you would, to concentrate on the softer, less noisy bits of food on your plate. I will not keep you long, and you can then go back to the more chewy items, which may well be of much more immediate interest.

The legal profession, within each jurisdiction and each legal system, has developed customary methods of presenting cases or approaches to advocacy. Obviously, as an English barrister, I find it most effective to present my cases with an 18th century curled horsehair wig on my head. Although once standard in this jurisdiction as well, I have noticed that it seems to have lost some popularity over here now. However, in most fields, certain practices, or ways of doing things, gain currency and gradually take hold. In the field of international commercial arbitration, one talks increasingly of “convergence.” Even though this is a transnational field, which is practiced across national and cultural divides, certain specific standards, practices, and methods have grown up, and become increasingly entrenched. We are hearing about many of these in the course of the program today. Now the question is: how effective, actually, are these techniques? We may be using them frequently from case to case, but what impact do they really have on the inner minds of the arbitral “Mafia”?

That is the question which I am going to try and address in this short presentation, whilst attempting not to shorten my career. The best way of testing effectiveness in terms of the various elements that comprise “advocacy” is to relocate to the other side of the arbitral table. I did that some years ago and began to sit as an arbitrator, and I had at that moment two dramatic revelations. The first revelation was the realization as to just how irritating counsel can be.