Part IV Arbitral Procedure and Procedural Misdemeanour, 11 Is International Arbitration Becoming Too Confrontational and Counter-Intuitive? And Some Guidelines as to How Not to Irritate a Tribunal!

Subject(s):

Jurisdiction — Arbitral tribunals — Arbitrators — Claims — International courts and tribunals, procedure

International arbitration is becoming increasingly fractious, ill-tempered, and combative, as each side deploys tactics to argue its case. All too frequently, lawyers lose sight of the fact that it is the tribunal whom they need to win over to their cause. Aggravating a tribunal, whether by aggressive and combative advocacy or by an ill-presented case, is counter-productive. This chapter addresses the causes of this growing tendency and how to deal with it from the perspective of both oral and written advocacy and presentation. It suggests that the real problem is a developing culture of using the arena of arbitration as a stage to play out the parties’ anger against each other, using their lawyers as the means to do so. As a response, tribunals, in the first procedural order for the hearing, or appended to it, need to lay down some basic rules.