Strategic Considerations in Developing an International Arbitration Case - Chapter 6 - The Art of Advocacy in International Arbitration - 2nd Edition

David W. Rivkin is a Litigation Partner in Debevoise & Plimpton’s New York and London offices, has broad experience in the areas of international litigation and arbitration. He has handled international arbitrations throughout the world and before virtually every major arbitration institution, including the ICC, AAA, LCIA, ICSID, IACAC and the Stockholm Chamber of Commerce.

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

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I. Introduction

The original meaning of strategy hails from the military sphere. In Greek history, the strategos was the commander-in-chief or chief magistrate in Athens, and the strategia was his command or office. Strategy later took on its present meaning of “the art of projecting and directing the larger military movements and operations of a campaign.” In warfare, strategy is distinguished from tactics, which designates the handling of forces in deployment. Strategy determines the way in which the overall war should be fought, while tactics focus on the means of fighting the individual battles. As the famous strategian Sun Tzu famously said, “All men can see these tactics whereby I conquer, but what none can see is the strategy out of which victory is evolved.”

Similarly, in arbitration developing the strategy of a case for arbitration should go beyond notions of offense and defense in individual battles. The advocate and his or her client should at all times focus on the goals that they hope to achieve. At the beginning of the case, they must develop a clear, consistent strategy that will move them in a straight line to that goal. A reactive strategy, developed as the case proceeds, places the client at a tactical disadvantage and risks undermining the overall case.

In doing so, the advocate and client need to keep in mind the differences between international arbitration and state court litigation. Arbitration affords enormous flexibility to tailor the resolution process to the wider context of the dispute, and any arbitration strategy should take that context fully into account. It also provides opportunities to create an efficient procedure that focuses the evidence on the issues that need to be decided. Developing this strategy requires an appreciation of the priorities of the parties and the sensibilities of the tribunal, a candid evaluation of the factual and legal issues in dispute, and a long-term view of what the arbitration can achieve.