Each year, a group of students about to embark on a course in international arbitration gets the same introductory lecture from one of the tutors.
“This is the White Book,” says the visiting professor - who’s also a partner at a London law firm, holding up a copy of the UK’s court rules of procedure. “It’s two volumes and takes up this amount of space on your shelves.” He measures a breeze block with his hands to underline the point. “It tells you everything that can happen in an High Court case.
“And this is the ICC rules,” he says, holding up a small brochure. “It’s about this thick,” he adds, gesturing its thickness by picking up an imaginary cat in a finger pinch. “But ICC arbitration is no less complex than High Court litigation.”
“The difference between those two thicknesses” - he indicates the pinch and the breeze block again - “is what international arbitration lawyers know. And it’s not written down.”
That word-of-mouth knowledge helps those lawyers who are skilled in international arbitration navigate a process that’s unique within law. A leading textbook on the subject - Redfern & Hunter on International Arbitration - observes that a stranger stumbling upon an international arbitration hearing might not realise that a legal process was underway. They’d see two small groups of lawyers wearing lounge suits, occupying a hotel room or training room. On the other side of the room: a trio of types with a bit more grey hair. There’s no audience, no usher and little hint of pomp or ceremony. It could perhaps be mistaken for a training course, apart from the stenographer. But appearances can be deceiving. Every industry apart from banking now relies on the arbitral process to settle disputes in large international contracts. The events in those hotel rooms - or nowadays bespoke hearing centres - decide the fates of millions upon millions of shareholder value. At least two regional telecoms businesses have changed ownership completely as a result of recent international arbitrations.
For the advocates who represent the two sides on those occasions, it’s not like being in a national court. For a start, the case probably won’t settle on the courtroom steps; international arbitrations tend not to, for reasons that so far aren’t well understood. The advocate will also have to navigate a host of legal cultural issues in the run-up to the hearing, ranging from the mindset of his opposite number to the applicable law. A well-publicised ICC case gives a flavour of a typical scenario. One side was a Middle Eastern government and the other was consisted of two international oil companies. The arbitrators were French, Belgian and English, and the counsel English and American. Although the hearings physically took place in a European capital city, the law was from somewhere else and the backdrop to the case was the Islamic tradition of spare documentation. One side had to work without sending its client the standard written memorandums on unfolding issues, conveying their advice orally instead. Oh, and $10 billion or so was at stake.
Similarly, if you are an advocate in international arbitration, one of the clients or your opposing counsel is more likely to be a handful. The clients who require international arbitration help are not always nice, listed-companies who document things well, and are commercially utterly rationale. Quite a few arbitrations have their roots in the cut-throat politics of resource-rich states. You may find yourself having to subtly do your opposing counsel’s job for them, if only so you can rebut the argument they are (sort of) making.
It’s not everybody’s cup of tea. Recently, a young UK litigator told a GAR reporter who was attending a non-arbitration related event that he’d disliked his (brief) foray into the arbitration world a few years ago - because of the rough-house tactics he’d seen used. He said that some of those would be regarded as unethical - and sanctioned - if attempted in court. He isn’t alone. Quite a few younger lawyers who step across from litigation find international arbitration’s lack of rules and regulations leaves them almost queasy. They’re disorientated to be in a world where case-procedure is confected from scratch.
As a result of these unique aspects, the big commercial law operations have come to treat international arbitration as separate area of knowledge. This movement began in the early 1990s when a handful of firms - among others Freshfields, Clifford Chance and Shearman & Sterling - decided to centralise the work. Others took more time. A London lawyer at another well-known firm tells how at his shop a leading partner made himself a thorn in the side of the management, with continued calls for it to separate litigation from international arbitration and allow some of the partners to focus full-time. “No dabblers,” was his mantra. The penny finally dropped when the firm’s senior partner attended a client care meeting with a leading international energy firm. The client was in a good mood, goes the anecdote, because the law firm had recently triumphed on its behalf in a major UK court case. The senior partner took the opportunity to ask if they could expect future instructions. “Yes,” said the client, “you’re the best firm for litigation”. And what about arbitration, the senior partner enquired - thinking of his latest run-in with the difficult colleague. “Oh, then we’d go to Freshfields,” the client said. “You’re brilliant for litigation but Freshfields is a specialist arbitration firm.”
But, 20 years on, a lot of law firms can boast a practitioner or two who’s spent their entire career immersed in international arbitration and little else.
When the international arbitration specialist takes on the lay-person, the results aren’t necessarily pretty.
There are comical stories about US plaintiffs’ lawyers calling the chair of an arbitral panel, “Your Excellency” and “Your Holiness”. More subtly, an advocate from a court-room tradition may misgauge how hard to attach a witnesses - “you see some people who come out of the blocks at 100 miles per hour against an elderly Swiss professor,” as one source put it. Such bombast, which may be appropriate in a courtroom, will play badly in front of arbitrators, especially if they are also Swiss professors. Another mistake is to prick the curiosity of an arbitrator by suggesting something is off limits, forgetting about the flexibility they have to determine the boundaries of their inquiry. Some have difficulty treating lawyers from other traditions as their equal.
In the extreme, inexperience can lose the case. Matthew Weiniger - the professor-cum-practioner whose students get the breeze block and the pinch visual - recalls one case in which an opponent’s naïvité gifted him tremendous scope for mischief.
On that occasion, the other side consisted of a reasonable UK corporate firm (“you’d immediately know them”) and a QC (“who was brilliant but doing his first arbitration”). Weiniger, in contrast, has spent his professional life appearing before international arbitrators. Early on in the case in question, his opponents misconstrued a key order. It led them to hand over more documents than the arbitrator had ordered. “The good and bad documents - everything, including internal client memos,” he remembers. As a result, Weiniger - who handed over only his “good” documents, went into the cross-examination phase better prepared. His client won the case. The arbitrator’s order, it so happened, was a fairly standard formulation.
Does Weiniger get gifts of that type often? “I’m used to it,” he says. “Usually there are more subtle things.”
In other words, international arbitration comes down a familiar adage: know your judge; and even more importantly: make sure your judge knows you. The longer an advocate spends in the presence of a group of adjudicators, the better his or her chances of being persuasive in front of them. The advantage arises for two reasons: improved intuition and the fact that the advocate in question should start to arrive in court or arbitration with a pre-established respect.
“QCs, in the High Court, are brilliant because they know those panels inside out and that style of advocacy,” according to a lawyer with a similar type of practice to Weiniger, who asked to speak on condition of anonymity so he could be fully frank.
“Laurence Rabinowitz QC [editor’s note: a well-known UK advocate for commercial cases from One Essex Court] can appear before any judge and they know him. ‘Ah, Mr Rabinowitz - very interesting and nice to see you!’ The same thing applies in international arbitration. For example, I’ve got a case right now in front of [names a leading international arbitrator]. Every time I go to a conference, he’s there. We read each other’s books. My opponent in the case on the case… he hasn’t got a clue.
“Between all the partners in our group,” the lawyer continues, “we’ve appeared before every single arbitrator worth knowing… not just once but multiple times in the past few years and we have the inside knowledge as a result of that. If I pick up the phone to [names several leading arbitrators] because I want to appoint them, I know they’re going to phone back.
“QCs in the high court are brilliant, because what they have is ring-craft. But when it comes to international arbitration I have the ring-craft.”
Another specialist says he wishes more of his opponents could come from the ranks of the specialist international arbitration bar, because it would save time and aggravation. “I would love to do more cases against Freshfields,” he says. “I tell clients, if this were against Freshfields, I’d get you a deal in two days. It would be over. But because we’ve got these idiots we’re probably going to have to fight for years.”
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Sophisticated clients, to give them their due, appear aware of this dynamic. A survey* published in 2006 found three-quarters of in-house counsel interviewees would seek a lawyer they regarded as an international arbitration advocate rather than a litigator. They defined specialisation as a mix of reputation, amount of work undertaken and experience. In the interim, more law firms have caught religion and created their own international arbitration groups.
Nowadays, the challenge for clients and students alike is not so much to find a specialist arbitration group as to distinguish between the many now in existence.
The book you are holding may help. Four years ago, Global Arbitration Review created GAR 100 as an opportunity to identify at least 100 firms it would be safe to consider “approved” for expertise in this discipline. To qualify, firms had to open their books to researchers and allow them to audit its recent work and previous experience.
With this edition - our fourth - the number of approved firms has grown to 149 firms, representing 28 countries. Three firms from Asia make their debut. We’ve also admitted some smaller practices, including a couple of one-person boutiques where the person in question is a recognised leader in the field. The composition of the 100 will continue to change but it’s underlying ethos won’t. It will always exist to point you towards dependable counsel around the world who are versed in international arbitration.
To ensure that, firms have to accept being vetted by our researchers for the various components that make up “specialisation” (reputation, volume of work and experience). In most cases, this “audit” means responding in detail to a questionnaire that itemises its experience through to how many merits hearings it’s participated in and before whom as arbitrator.
This information is then triangulated against responses from other firms, external sources (on-line and print) and proprietary internal GAR information. To give the book a broad coverage, where information is harder to extract, other forms of vetting have been used - including word of mouth and strong personal recommendations from existing 100 firms.
As well as adding new firms, the descriptions of charter members of the 100 continues to expand. Many now include extra sections outlining the history of the practice - especially (where information could be obtained) its connection with key figures of the past - and also how the practice is viewed in different ranking surveys.
A number of descriptions now also include the novelty of a segment called “big wins”. As the introduction to our ranking section - GAR 30 - makes clear, the editorial team sets little store by wins considered out of context. Even so, it’s fair to expect that over time every arbitration group worth its salt should have one or two impressive outcomes to its name. Those wins have been identified using publicly available sources. If any practice should feel that one of its greatest “hits” has been omitted, we’d be delighted if they would contact us with details.
The research period for all data in the book is 1 August 2008 to 1 August 2010. All the other information is correct as of 1 January this year.
The editorial team is enormously grateful to the firms who responded to this year’s request for current information. We’re also grateful to various colleagues within Law Business Research - particularly Tom Barnes and Marcelle Teycheney from the International Who’s Who series - for their contribution. On a personal note, I’d like to thank the many international arbitration lawyers - young and old alike - who’ve taken time over the years to explain the nuances of their craft, and the whole of the GAR desk for helping to carry the burden. Sebastian Perry and Tom Toulson, in particular, deserve special credit. They co-produced this edition.
*International Arbitration: a study into corporate attitudes, by PricewaterhouseCoopers and the School of International Arbitration, London