Advocacy from the Arbitrator's Perspective - Chapter 25 - The Art of Advocacy in International Arbitration - 2nd Edition

Stephen L. Drymer is a graduate of Yale University and the Faculty of Law of McGill University where he earned degrees in Common and Civil Law, Stephen is Co-Chair of Ogilvy Renault LLP's International Arbitration team. His practice focuses on domestic and international arbitration and alternative dispute resolution.

L. Yves Fortier is Chairman Emeritus of the firm and is recognized as one of the top arbitrators in the world. Mr. Fortier has served as Chairman or party-appointed arbitrator on more than 100 arbitral tribunals, either ad hoc or constituted by different arbitral institutions, including the International Court of Arbitration of the International Chamber of Commerce (Paris), the London Court of International Arbitration (LCIA), the Hong Kong International Arbitration Court (HKIAC), the Singapore International Arbitration Centre (SIAC), the China International Economic and Trade Arbitration Commission (CITAC), the American Arbitration Association, the Court of Arbitration for Sport, the Zurich Chamber of Commerce, the International Centre for Settlement of Investment Disputes (ICSID), the Canadian Commercial Arbitration Centre, the British Columbia International Commercial Arbitration Centre and the ADR Chambers International Panel.

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Originally from The Art of Advocacy in International Arbitration - 2nd Edition

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I. Introduction

Plutarch wrote that “the good have no need of an advocate.” Would that that were always the case. As many good yet poorly represented parties have learnt, in arbitral proceedings it is not enough to be right, let alone good; it is essential that the rightness of one’s case be apparent to the person or people invested with the authority to determine the dispute. Therein lays the advocate’s challenge. Ask any arbitrator what he or she really wants from an advocate. The answer, if truthful, is likely to be along the lines of “simply, everything”. Arbitrators want it all. And why not? If our role is to determine the outcome of a dispute, the role of the advocate is to persuade us to determine the matter one way or another and ideally to show us not only why but exactly how to do so.

It is often said that the best advocates do the arbitrators’ work for them. At the very least, they simplify the arbitrators’ job enormously. As Doak Bishop wrote in the first edition of this book: “The advocate should think through the case from the standpoint of the arbitrator – putting himself in the arbitrator’s position – defining the issues to be decided and considering what is necessary to prove those issues.” In doing so, the best advocate lays the groundwork for a decision or award that, from the standpoint of the arbitrator, effectively writes itself.

This comes as no surprise to the seasoned lawyer. Oliver Wendell Holmes famously declared that “Judges are apt to be naïf, simple-minded men, and they need something of Mephistopheles. We too need education in the obvious.” Many parties and counsel may well recognise any number of arbitrators in this description. And many arbitrators may well recognise themselves, if they are frank. For as compared to the parties themselves and their representatives, at the outset of an arbitration the arbitrator – if not quite simple-minded, one hopes – is certainly relatively unsophisticated. Compared to the parties and their advocates, the arbitrator possesses at best an unrefined knowledge of the issues in dispute and the multiple ways in which those issues may be construed and ultimately determined. As did Faust, the arbitrator requires a guide.