Author: S. I. Strong*
Published: July 2010
International commercial arbitration is an advocacy-oriented endeavor, with parties engaging particular lawyers precisely because the parties believe that their chance of success increases proportionally with the skill and experience of their advocates. Clients are not alone in this perception of expertise – arbitrators and lawyers have also indicated that a good advocate makes a material difference in the outcome of a dispute.
Given the central role that advocacy plays in arbitral success, it is ironic how little practical issues are discussed in legal scholarship. Instead, journals and texts are filled with doctrinal research, with other forms of inquiry, such as theoretical analysis and empirical studies, appearing to a lesser extent. While it is true that some pieces exist on best practices in advocacy, they appear most frequently in practitioner-oriented books or periodicals, rather than in the more rigorous academic journals, and tend to focus nearly exclusively on oral skills. Discussions concerning advocacy in international commercial arbitration, particularly regarding research and writing, are particularly sparse.
Some may say there is little need for scholarly work regarding written advocacy because lawyers obtain the necessary skills through other means, such as law school, continuing legal education and mentorship. While this may be true of domestic litigation skills, it is not the case with respect to international commercial arbitration, where traditional methods of practical training are minimal at best and non-existent at worst.
*Associate Professor of Law, University of Missouri; Senior Fellow, Center for the Study of Dispute Resolution. Ph.D. (law), University of Cambridge; D.Phil., University of Oxford; J.D., Duke University; M.P.W., University of Southern California; B.A., University of California, Davis. Attorney (New York and Illinois), Solicitor (England and Wales).