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Arbitration area of practice: barristers

Arbitration: area of practice (barristers)

Alexander Milner from Fountain Court explains how private advocacy and dispute resolution can take place away from courtrooms and judges.
London is a popular venue for arbitration but there are a number of institutions around the world, each with their own rules.

Arbitration is a process whereby parties agree to have a dispute determined by a privately appointed tribunal rather than a judge in court. In principle, this process offers a lot of flexibility for parties to have disputes decided in an efficient way, using agreed rules. The tribunal appointed to resolve the dispute could be a single individual, or it could be a panel of three lawyers or industry experts, depending on the value and complexity of the dispute.

Where do arbitration barristers work?

Arbitration clients are normally international commercial parties who have included a dispute resolution clause when they first agreed a contract. They can be corporate entities or wealthy individuals, but clients can also be state entities or governments.

There is a network of treaties between countries that agree to protect their citizens’ investments that has given rise to a whole field of investment arbitration. Normally the first step is for a claimant to file a request with the institution appointed to administer the arbitration. London is a popular venue for arbitration but there are a number of institutions around the world, each with their own rules. The rules provide a certain timeframe and other procedural requirements and can be used as a template for disputes, although they can be varied by agreement or by the tribunal.

In a typical case there are one or two rounds of exchanges of pleadings, evidence and expert evidence. There will ultimately be a hearing that could last from a day to several weeks depending on the scale of the case.

What is the work like as an arbitrator?

A barrister may have a dozen arbitration cases on the go at the same time, although some will be more active than others, and cases vary in size and complexity. Few barristers have an exclusive arbitration practice: most combine it with litigation work. On average a case might last a year from start to finish. Most of the work will take place in chambers reading and drafting documents.

There are certainly opportunities for travel but the bulk of arbitration work for UK-based lawyers is inevitably in London. As clients are likely to be international, there may be a need to travel abroad for hearings or meetings. Working hours are steady but flexible and it’s possible to plan with a reasonable degree of accuracy, but as with any area of law weekends and evenings are by no means sacrosanct.

Students should be aware of the potential of the Transatlantic Trade and Investment Partnership (TTIP) proposal, which will allow US companies to bring arbitrations against European governments (and vice versa). It would also be useful to know of the developing situation regarding anti-suit injunctions and arbitration within the EU.

Is arbitration work at the Bar recession-proof?

Disputes lawyers tend to do well during recessions. People are keen to recover whatever they can from wherever they can and will bring claims to get what they’re owed. On the other hand, commercial clients often have less money to spend on expensive legal cases. These two trends probably balance each other out so practice remains steady.

How can you get into arbitration as a pupil?

Pupils might express an interest in arbitration and be given that work, but not formally or exclusively. Working hours tend to be a fairly regular 9.00 am to 6.00 pm, but pupils may also be in chambers the odd evening or weekend. Each set is different, but pupils normally shadow their supervisor initially, before working for a variety of other members of chambers. They are assessed on tasks and are expected to undertake drafting of pleadings, drafting of skeleton arguments and research on difficult points of law. Juniors seeking to work in arbitration should express an interest in the area when they join chambers.

Types of law practised by arbitrators

  • Contract.
  • Property.
  • Investment.
  • International.

ALEXANDER MILNER is a barrister at FOUNTAIN COURT CHAMBERS and works in commercial litigation and arbitration. He studied modern and medieval languages at the University of Cambridge and was called to the Bar in 2006.