Originally from:
Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition - Hardcover
Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition - Electronic
Preview Page
Chapter I.10
Research in International Commercial Arbitration:
A World of Difference*
S.I. Strong
Experts agree that international commercial arbitration relies far more heavily
on written advocacy than litigation does, yet very few practitioners and
arbitrators have ever received any specialized training in how to research and
present written arguments in this challenging area of law. Newcomers to the
field are particularly disadvantaged, since the legal authorities used in
international commercial arbitration are unique and novices often do not know
how to find certain materials, if they are even aware that these items exist. This
chapter helps deepen the understanding of the practice of international
commercial arbitration by describing how experienced international advocates
and arbitrators research, present and consider legal arguments in international
commercial arbitration. The discussion, which is useful for practitioners and
arbitrators at all levels and in all countries, also distinguishes mistakes typically
made by lawyers trained in common law countries from those made by lawyers
trained in civil law jurisdictions.
§ 10.01 Introduction
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.1 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.2
Given the central role that advocacy plays in arbitral success, it is
ironic how little practical issues are discussed in legal scholarship.3
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.4 While it is true that some pieces exist on
best practices in advocacy, they appear most frequently in practitioneroriented
books or periodicals, rather than in the more rigorous academic
journals, and tend to focus nearly exclusively on oral skills.5 Discussions
concerning advocacy in international commercial arbitration, particularly
regarding research and writing, are particularly sparse.6
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.7
Chapter I.10
Research in International Commercial Arbitration:
A World of Difference*
S.I. Strong
SYNOPSIS
§ 10.01 Introduction
§ 10.02 The Central Importance of Research and Written
Advocacy in International Commercial Arbitration
[1] The Marginalization of Scholarship on Research
Methods and Materials
[2] The Unique Challenges Regarding Research in
International Commercial Arbitration
§ 10.03 How It’s Done--Research Sources and Strategies in
International Commercial Arbitration
[1] International Conventions and Treaties
[2] National Laws
[3] Arbitral Rules
[4] Law of the Dispute (Procedural Orders and Agreements
between the Parties)
[5] Arbitral Awards
[6] Case Law
[7] Scholarly Works (Treatises, Monographs and Articles)
§ 10.04 Going Forward
S.I. Strong is Associate Professor of Law at the University of Missouri
and Senior Fellow at the Center for the Study of Dispute Resolution,
having previously taught law at the University of Cambridge and the
University of Oxford in the United Kingdom. Prior to joining the faculty
at Missouri, Professor Strong was Counsel at Baker & McKenzie LLP
and an international disputes specialist in the New York and London
offices of Weil, Gotshal & Manges LLP. She has acted as an advocate in
arbitral proceedings under a wide range of institutional rules and is listed
as a neutral on various national and international rosters. Professor
Strong has written numerous books and articles on international
commercial arbitration and transnational litigation, with a particular
emphasis on advocacy, enforcement and multiparty disputes. Professor
Strong, who is qualified as a lawyer in New York and Illinois and a
solicitor in England and Wales, holds a Ph.D. in law from the University
of Cambridge, a D.Phil. from the University of Oxford, a J.D. from Duke
University, an M.P.W. from the University of Southern California and a
B.A. from the University of California.
