International Arbitration - Unfinished Business - Part 5 Chapter 19 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
International arbitration has, as a matter of reality, grown significantly over the past several years. Whereas there were, in the past, probably no more than ten lawyers specializing in international arbitration in New York City, there are now probably more than one hundred lawyers who spend a significant amount of their practice on international arbitration. An indication of the extent of this growth could be seen recently in the winter luncheon meeting of the United States Council for International Business, where there were some fifty lawyers, many from out of state, in attendance for a presentation given by the Secretary General of the International Court of Arbitration of the International Chamber of Commerce (ICC). This increasing use of arbitration for the resolution of international commercial disputes is probably the result of a combination of factors: growth in international investment and other transactions, distrust of the vagaries of, and delays in, the courts of many countries and increased awareness and understanding of the process of international arbitration.
This growth in the use of arbitration for the resolution of international disputes has brought with it improvements in the nature and quality of lawyering in those proceedings. As an institution, however, international arbitration is still confronted with challenges that must be dealt with for the process to have more widespread acceptance.
The growth of international arbitration has been accompanied by developments that have given rise to concern in some quarters as to the ways in which arbitration proceedings are conducted. A significant development is what has been called the "judicialization" or "Americanization" of international arbitration. That is, certain practices followed in United States courts, especially the pre-hearing production of documents to adversaries, are becoming more widely used, even in cases presided over by arbitrators from cultures, such as that of Continental Europe, where discovery is anathema. The participation in international arbitration of more American arbitrators and the greater involvement in those proceedings of American lawyers - who feel naked going into a hearing without discovery from the other side - may be wearing down the resistance of the Europeans and leading to this increased use of discovery. It is also possible that arbitrators perceive that the advantages in efficiency of providing for document production outweigh any concerns about its obtrusive and burdensome characteristics. Despite the trend toward American-style document production, however, there is a significant level of unpredictability in a given arbitration proceeding as to whether it will or will not be conducted in this "Americanized" fashion.
It is probably also fair to say — although it may be regarded as chauvinistic to do so — that, with the increasing involvement of American lawyers, the quality of advocacy in international arbitration has improved. Lawyers practicing in the United States are particularly skilled in preparing detailed briefs of the types used in international arbitration. Continental European lawyers, at least those not specializing in arbitration or trained in the United States, are, as a result, becoming increasingly disadvantaged in contending with American lawyers as adversaries in international arbitration.