Advocacy From the Perspective of the Civil Law Arbitrator - Chapter 24 - The Art of Advocacy in International Arbitration - 2nd Edition

Bernardo M. Cremades is a Senior Partner of the Spanish law firm B. Cremades y Asociados and Catedrático at the university in Madrid. His practice focuses on international commercial arbitration and transnational investment disputes. He has acted as counsel, party-appointed arbitrator and president of arbitral tribunals in more than 300 arbitrations.

Ignacio Madalena is an Attorney with B. Cremades y Asociados in Madrid. His practice is entirely focused on arbitration. He acts as adviser and advocate in institutional and ad hoc arbitrations under all the major arbitration rules, including proceedings between States and investors under the Washington Convention on the Settlement of Investment Disputes.

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

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I. Introduction

The purpose of this chapter is to analyze various issues related to advocacy in arbitration from the perspective and experience of a Spanish arbitrator. This chapter does not endeavor to cover every element of arbitration. It provides an insight to the functioning of arbitration in practice, discussing the main functions of arbitration practitioners and the advocacy skills required at each stage of the proceedings.

Within the broad mandatory limits of the seat, parties and arbitrators enjoy a high degree of freedom and discretion in designing the proceeding. This makes arbitration a less predictable dispute resolution mechanism, in comparison with ordinary law courts and requires a thorough specialization from counsel and arbitrator. Most arbitration rules include a written and an oral phase with a hearing. In the preparation of the different written submissions, counsel is free to adapt the structure of the pleadings and modes of presenting the factual and legal issues to the nature of the case. The oral phase is also flexible in comparison to an ordinary courtroom. The arbitration hearing is free from the technicalities of litigation. However, this informality still requires specific advocacy skills from counsel –to persuade the arbitral tribunal in the presentation of the case– and also special skills from the arbitrator –to conduct the proceedings efficiently and to render a well-reasoned award.