Advocacy in Practice: The Use of Parallel Proceedings - Chapter 7 - The Art of Advocacy in International Arbitration - 2nd Edition
Emmanuel Gaillard has represented corporations, States and State-owned entities in international arbitration matters for over 25 years. He has also acted as sole arbitrator, party-appointed arbitrator or chairman under most international arbitration rules, and is frequently called upon to appear as expert witness on arbitration law issues in international arbitration proceedings or enforcement actions before domestic courts.
Philippe Pinsolle is a Partner at Shearman & Sterling LLP in Paris, and specializes in international arbitration. He has been involved, as counsel or arbitrator, in more than a hundred and twenty international arbitrations, both institutional (ICC, ICSID, LCIA, SCC, AFA, Swiss Rules, etc.) and ad hoc, concerning such activities as investment, oil and gas, energy, telecom or defense industry.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
In the first edition of this book, we had taken the view that, in international arbitration, advocacy was not limited to the oral performance of counsel. In our view, advocacy encompassed all the aspects of the dispute and all the strategic decisions to be made in the case. Strategy in arbitration is multidimensional. Unlike court proceedings, arbitration leaves open a wide range of possibilities for the litigants and it is for their advocate to make the best possible use of these possibilities. The role of the advocate should thus not be limited to delivering the best oral performance, but should also extend to any important strategic decision to be made. Some authors have expressed doubt as to the accuracy of this far-reaching definition of advocacy. The reasons are understandable. However, it seems that limiting advocacy to the oral argument of the advocate or indeed to the examination of witnesses does not do justice to this concept. We believe that the role of the advocate in an international arbitration is much wider than that and that the input of a good advocate can make the difference by choosing the right option from the very beginning of a case.
Against this background, we have described in the first edition of this book various scenarios where a choice had to be made in an attempt to identify what was the best choice for the good advocate. In this new edition, we propose to focus on a very intricate issue for advocates: parallel proceedings. With the proliferation of complex deals and the corresponding proliferation of a related contracts and agreements drafted in a different manner, there is room for playing with parallel proceedings that can really make a difference on the outcome of the case. Moreover, depending on the national legislations which may come into play in the arbitration, it will be more or less easy to have recourse to parallel proceedings. The first part of this contribution will be devoted to the study of actual situations where the parties have had recourse to parallel proceedings for obviously tactical purposes. This analysis is based on reported case law which came into the public domain. The second part of this contribution will be devoted to the analysis of the conditions which permit recourse to parallel proceedings as well as the possible limits of other tactical use. This chapter is not intended to provide a road map for derailing an arbitration, but rather to identify the fundamental issues underlying the very notion of parallel proceedings.