Advocacy in International Arbitration and Representation in International ADR
International arbitration and ADR procedures demand specialist skill of the advocate. In international arbitration, in addition to knowledge of the relevant arbitration law, the process requires a familiarity with accepted practice and the governing procedural rules, if any.
Drafting of the Terms of Reference, the Statement of Case and the Statement of Defence and Counterclaim must be done in the context of a process that is unique in many ways. Accepted practice borrows from both the common law and the civil law traditions and parties expectations may be influenced by other legal systems particularly the Sharia.
The advocate must be conscious of the cultural expectations of the parties, their representatives and the tribunal. Depending on the law governing the process and the legal culture of there may be widely differing views on matters such as the application of the rules of evidence to questions such as the extent of legal professional privilege, the treatment of witnesses, the extent of disclosure of documents (discovery) and the lenght and form of the Oral Hearing.
In ADR, parties are encouraged to engage directly in the negotiations with the active participation of senior executives with decision making powers. The party representative engages in an advisory rather than advocacy role. This should not be underestimated however as the parties will require guidance in the selection of the mediator and in making preparation for the mediation meeting.
As in all things there is a direct relationship between proper preparation and achieving success. During the mediated negotiations the legal advisor will discuss developments and provide advice. Finally the hoped for outcome of a successful mediation is the amicable resolutionj of all or at least some of the issues in dispute. The legal advisor has a role in advising on the agreed terms and in drafting the agreement.
Links to the major international documents and materials for international commercial dispute resolution together with details of the principal institutions engaged in international dispute resolution in Europe can be found HERE.
The rules and guidlines proposed for international arbitration and ADR procedures by the institutions can be found HERE.