In-House Lawyer's Role in International Arbitration - ARIA - Vol. 20, No. 3, 2009
Originally from American Review of International Arbitration - ARIA
I. IN-HOUSE ARBITRATION COUNSEL’S “JOB DESCRIPTION”
The job of in-house arbitration counsel in international commercial and investment disputes can be best described in its simplest terms as two-fold. On the transactional side, the company’s arbitration specialist should be able to draft, negotiate, and advise concerning contractual dispute resolution provisions. In most cases, the job of drafting a workable and enforceable dispute resolution agreement is not difficult, unless the parties needlessly make it so. Part of the job of in-house arbitration counsel should be to ensure that the company’s commercial representatives keep things simple and avoid common drafting mistakes. The company’s in-house international arbitration counsel should also be directly involved in formulation of the company’s dispute protocol, or at least be fully familiar with it. This protocol constitutes an important resource for in-house counsel, covering guidelines for drafting dispute resolution provisions and key tasks relating to management of the dispute’s process, particularly at the early intake stage.
On the disputes side, he or she manages disputes, overseeing their progression through the dispute resolution process from initial intake to arbitral award or settlement. At each stage of this process, company counsel performs a multifaceted role frequently crucial to the successful conclusion of the dispute, a role that ranges from selection, engagement, and supervision of outside arbitration counsel to the more substantive, significant, and collaborative responsibilities as part of the trial team. In order to perform this part of the job effectively, he or she must be knowledgeable concerning the legal framework in which arbitration occurs, the applicable arbitration agreement and arbitral rules, and the arbitration process, as well as be familiar with the client, its business, and the industry in which it operates. Throughout this entire process, the in-house arbitration lawyer performs the oftentimes difficult job of managing client expectations. To achieve a successful result in arbitration, in-house counsel should practice, just as outside counsel must, the art of anticipation. If he or she can do all these things, and more, the in-house lawyer deserves to be recognized as the company’s international arbitration expert.