Advocacy in International Commercial Arbitration: ASA Special Series No. 36 - Advocacy Training for International Commercial and Investment Arbitration
Jeff Waincymer is a Professor of international trade law at the faculty of law, Monash University in Melbourne, Australia. He teaches in the fields of arbitration, various international trade subjects, taxation and advocacy through the Vis Moot commercial arbitration competition. He has taught for over 25 years to undergraduates, post-graduates and also to Australian and foreign government officials. He is regularly invited to conduct training programs run through government and aid agencies.
He is a Qualified Legal Practitioner and Accredited Mediator, practicing solely in the fields of international trade, customs, arbitration and ADR. He is also an Australian Government Nominee as a panellist for the WTO and has acted as a panellist. He is also an Australian government nominated ICSID panellist and has been an ICC and SIAC appointed arbitrator. He has also been a consultant to the Australian Law Reform Commission, the Administrative Review Council, the Victorian Government and a number of Federal Departments and agencies.
His research is primarily in the fields of international trade law, arbitration and taxation. He is the author of WTO Litigation: Procedural Aspects of Formal Dispute Settlement, and Australian Income Tax: Principles and Policy, Second Edition, and a joint author of A Practical Guide to International Commercial Arbitration and also International Trade Law: Commentary and Materials, Second Edition. He is the Co-Convenor of the International Trade and Business Law Focus Group of the International Law Section of the Law Council of Australia (the peak Bar Council).
A paper dealing with advocacy training for international arbitration should seek to resolve some conceptual tensions before it can set out any meaningful practical blueprint. These tensions involve a consideration of the essential nature of advocacy, which in turn may be affected by differences in procedural and evidentiary approaches to adjudication between key legal families. These differences have led to differences in legal education, both in terms of curriculum and pedagogy, and hence the way graduates approach contentious cases.
At the extreme, to some civilian scholars and practitioners, advocacy as a legal skill is seen as more relevant to the common law oral tradition and its bifurcated profession, where contentious legal work is divided between solicitors and barristers. Even within the common law world, advocacy is too often seen as the exclusive preserve of the barrister class, best learnt on the job via pupilage and experience. Conversely, a civilian lawyer’s key role might be suggested as being to understand the scientific theory underlying the relevant law, muster the appropriate evidence and assist an inquisitory adjudicator who would frame the process as best as possible within a broad discretion.
This article seeks to argue against these extremes. It argues that neither extreme view gives appropriate deference to the essential nature of advocacy as persuasion; neither is relevant for modern adjudication in any legal system; and both are certainly inappropriate for international arbitral practice.
The article first looks at the nature of advocacy; differences among legal families as to evidence and procedure that may impact on advocacy skills; then considers the key elements of advocacy; considers teaching options and finishes with a practical training blueprint, outlining the key elements of a training model for law firm and university training.