Advocacy in International Arbitration - Chapter 17
Mark Baker is a Senior Partner in the Houston office of Fulbright & Jaworski, where he practices in the areas of complex commercial arbitrations, business litigation, and alternative dispute resolution (ADR). He is co-head both of Fulbright’s International Department and of the firm’s Arbitration and ADR Practice Group. Mr. Baker has advised the United States delegation to UNCITRAL on the United Nations’ revisions to both the Arbitration Rules and Model Arbitration Law (2006). He is Vice Chairman of the International Bar Association (IBA) Committe on International Arbitration, a Member of the International Advisory Committee of the American Arbitration Association, and a Member of the LCIA Arbitration Court.
The importance of advocacy is not a recent development. Well before the days of the New York Convention, good advocacy was the cornerstone of persuasion and dispute resolution throughout the world. The great orators of the Roman Empire used oral advocacy to advance their political agendas in the Roman Senate and to resolve legal disputes before the Roman courts. The eloquent barristers of early England argued before lay juries to advance their clients’ interests, as did the first great American jury trial lawyers. Even the Prophet Mohammed, far away from the legal traditions of the Americas and Europe, used his charisma and command of language to arbitrate disputes among Arabic tribes. All of these individuals, from different backgrounds, appreciated that good advocacy skills were a key part of successful dispute resolution.
In today’s world of high-stakes international controversies, the importance of advocacy has never been greater. Large sums of money and the interests of major organizations and governments regularly ride on the outcome of an international arbitration. In addition, highly complex legal theories are often advanced along with comprehensive prayers for relief that would have been unthinkable only a few years ago. This Chapter is designed to show that in international arbitration, good advocacy begins not with the oral presentations at the final merits hearing, but at the outset of the dispute and continues through each aspect of the matter through the final award or settlement.
In the modern international arbitration era, the concept of effective advocacy encompasses many sets of skills – oral skills, analytical skills, written skills, negotiation skills, interpersonal skills, and organizational skills. Achieving a command of these disparate advocacy skills requires natural talents, the right opportunities, tireless practice, and consistent experience. Add to this the myriad cultures, customs, traditions, languages, and rules that interact regularly in the international arbitration context, and the result is that complete advocacy at a high level is something that comes to a legal practitioner over time, not overnight.