The British Perspective and Practice of Advocacy - Chapter 20 - The Art of Advocacy in International Arbitration - 2nd Edition

Peter Leaver was called to the Bar by Lincoln’s Inn in July 1967, and was appointed Queen’s Counsel in April 1987. He has practised at the Commercial Bar in England, and has also acted in commercial cases in other jurisdictions. In the last few years he has spent most of his time sitting as an arbitrator in international commercial cases under the rules of many institutions, including the ICC, the LCIA and SIAC. In addition, he is a member of ACICA and the Chartered Institute of Arbitrators, and was for many years an arbitrator at the Court of Arbitration for Sport. He is currently the Chairman of the Board of Directors of the London Court of International Arbitration.

Henry Forbes Smith is a Barrister practising international commercial litigation and arbitration at One Essex Court in London. He is a member of the bars of England, New York and New Zealand. He has a LLB (Hons) from the University of Otago, a BCL from the University of Oxford, where he was a Vinerian Scholar and a Domus & Harmsworth Senior Scholar, and a PhD in the conflict of laws from the University of Cambridge, where he was a WM Tapp Student. Before joining the English bar, he practised U.S. law with Davis Polk & Wardwell. He originally trained as a New Zealand lawyer with Chapman Tripp.

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

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I. Introduction

This chapter outlines best practices in the advocacy and resolution in England of international commercial disputes. It compares English litigation and arbitration, and highlights features which may make England distinctive from other jurisdictions.

The art of advocacy is the art of persuading another person to decide or act in accordance with one’s wishes. In international commercial dispute resolution in England, the art of advocacy is influenced by two central features.

The first feature is the object of persuasion. Whether in litigation or arbitration, this will usually be a court or tribunal comprising one or more middle-aged lawyers who will know little or nothing of the facts, may know little or nothing of the law relevant to the issues they have to decide, and may have no assistance other than the advocates appearing before them. The court or tribunal is likely to be motivated, above all, to decide the case in a manner: (1) which accords with legal principle and due process; (2) which it personally believes is just, fair and reasonable; and (3) which it hopes will be respected by the parties, appellate courts, and enforcing courts.

The second feature is the inherent complexity of the exercise. The parties will disagree about what happened, why it happened, and what is the right outcome. The facts may be extensive, and expert assistance may be required. The law is simple in essence, but complicated in detail.