Beyond First Principles in Arbitration Practice
For many lawyers, barristers and solicitors, and corporate clients, commercial arbitration may seem like a parallel or alternate universe. Not quite there. Maybe not quite legal. Certainly difficult to get past the initial ‘Take me to your leader’ moment with the denizens of the other world. As a club of senior practitioners, the arbitral practice has some of the hallmarks of commercial litigation circa 1950. It need not be that way.
The truth about commercial arbitration is that, for the most part, we make it up as we go along. New lawyers are probably better suited to navigate the various domestic and international codes which sanction arbitration. Read them (eg., the Arbitration Act) and you’ll actually see that they are meant to set basic ground rules only. Tailor the rules to suit your dispute, and that’s when you start gaining an advantage for your client. Once you’re past the entry gate, advocacy starts with good imagination, more than anything else. Rules are meant to be rewritten. Evidence and fact-finding to be streamlined. You want to agree that the arbitrator will take judicial notice of facts on Wikipedia? Why not, if you are confident about the key facts and want to save tens of thousands in client dollars otherwise spent on expert witnesses? In my paper, Front End Advocacy in Commercial Arbitration (link to paper) I lead you into this alternate universe. Once you take the leap, you will realize that advocacy, like playing chess, starts from the opening move.
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