Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this challenging area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This chapter helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and arbitrators research, present and consider legal arguments in international commercial arbitration. The discussion, which is useful for practitioners and arbitrators at all levels and in all countries, also distinguishes mistakes typically made by lawyers trained in common law countries from those made by lawyers trained in civil law jurisdictions.

§ 10.01 Introduction

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.1 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.2 Given the central role that advocacy plays in arbitral success, it is ironic how little practical issues are discussed in legal scholarship.3 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.4 While it is true that some pieces exist on best practices in advocacy, they appear most frequently in practitioneroriented books or periodicals, rather than in the more rigorous academic journals, and tend to focus nearly exclusively on oral skills.5 Discussions concerning advocacy in international commercial arbitration, particularly regarding research and writing, are particularly sparse.6

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.7