“Here’s the dilemma. You need 15 more minutes of argument past the time allotted for the arbitration. You’ve heard thru the grapevine that the arbitrator has tickets to the opera (La Scala) and is not going to stay late. What’s your argument?”
That was one of the questions posed at the ICCA conference in Miami, Florida, I recently attended. (The answer is to bring up due process).
While the words “international arbitration” may not make everyone’s heart flutter, it is the method of choice for many big dollar international business disputes. For me, there is a technical proficiency necessary that is very attractive. As one of the presenters mentioned, it’s more Ronaldo than Messi (more hard work than talent, although both are necessary). Besides that, what’s not to like about traveling to Mauritius, Dubai or Paris and sorting thru muli-million dollar disputes?
The attraction to business is that domesticating and enforcing a judgment from a foreign nation can get long, messy and expensive. Conversely, enforcing an arbitration award is pretty straightforward. Thanks to the New York Convention of 1958, the process consists merely of filing a petition to confirm in the appropriate federal district, with English translation. Once confirmed, the award is entered as a federal district court judgment and is enforceable in the same way.
The Miami meeting came after the main ICCA conference and consisted of about 40 participants from all over the world.
Here are just a few fascinating things I pondered/learned:
How to get a decision maker to think he came up with your answer himself: Sydney Kentridge (who Mandela said was the world’s best lawyer) in making his final argument to the judge, would say he had 7 points. He would then go thru 6 points and say, from these 6 points, the 7 is pretty obvious. Then he sat down and let the judges divine the 7th point. Very gutsy, but it worked for him.
In India, evidently the court system is so back-logged that it would take 300 years to clear out the current cases. It is also evident that Indian attorneys are tired of hearing this statistic. Nonetheless, an Indian advocate has a very short time to make a very earnest plea to a court to even get her client’s matter heard. Because of this, demonstrative movement and impassioned speech becomes necessary and expected.
With advocates from such varied parts of the world coming together, what is the appropriate dress (Brooks Brothers for men; for women, you got me)? How do you address the tribunal (“Mr. __ or Professor __” as opposed to “your honor”)? What do your briefs look like (inter alia, executive summaries are very important, be mindful of being so “complete” that you dilute your arguments)?
Also, how arguments are made to the tribunal becomes a dilemma. American ways tend to creep into everything and an American style cross examination can become more of a show than a substantive effort to discover information. Many tribunals do not like this. Some of the participants mentioned Americans’ tendency to use terms like “fraud” which are an egregious sin in most places, but might be considered puffery coming from an American attorney.
Practicing international arbitration is purely aspirational to me at this point. But there’s no doubt that it is inspiring and motivating to be so consumed with new, big ideas and to hang around with bright people from all over the world. As I came back to the real world, which often seems to be fighting over pots and pans (very important to those involved, mind you) I remember how exciting and diverse the practice of law can be.