Arbitration is a form of dispute resolution that is heard and determined by specialist tribunals in a private, confidential setting rather than by a judge in court. Commercial parties often agree to use the process as a matter of contract.
The process is consensual: the parties can agree on the type of tribunal or arbitrator that will determine their disputes (eg industry specialists or expert lawyers) and, to a large extent, the procedure that will be followed.
Typically, international parties agree to arbitration seated (or situated) in major business or financial centres such as London, Dubai, New York or Singapore. These can be governed by recognised sets of rules promulgated by trade bodies, or by a bespoke set of ‘ad hoc’ rules drafted by the parties themselves.
What is arbitration at the Bar?
A typical arbitration will look a lot like court litigation. Statements of case, witness statements and expert reports are prepared, usually followed by an oral hearing. Some cases (particularly low-value or straightforward cases) might be determined ‘on paper’ without a hearing. Typical arbitration clients are international businesses and multinational companies, often undertaking transactions across borders and continents.
The life cycle of an arbitral reference (proceedings) can be anything from a few months (eg for a simple matter of contractual interpretation) to years (eg for a heavy infrastructure arbitration with many witnesses and technical experts). An arbitration will generally begin with intense stages of paper-based work (eg preparation of statements of case), which can be interrupted with procedural hearings, followed by a hearing that can last anything from a few days to few weeks or more.
The number of cases that a barrister will undertake at any one time will vary based on the size and complexity of the case, as well as the size of the team involved. For example, a single, very large case may take up more than half of your available time over two years, while at other times, it is perfectly possible to be instructed and to work concurrently on a number of smaller arbitrations.
Where will you travel as an arbitration barrister?
As with any commercial area of law, maintaining an arbitration practice is demanding. Cases can be technically and legally complex, and often require digestion of a large volume of documentation. However, because the process is consensual and in some respects less formal, it may be easier to plan and manage deadlines – a well-managed case should not require too many late nights!
One of the great draws of arbitration work is the international element: clients, arbitrators and opponents can be drawn from a diverse range of jurisdictions. In any given year, you might be in conference with experts in Norway, defending a claim in Dubai and meeting clients in Singapore. Cases might concern the effects of piracy off the coast of West Africa, the construction of a World Cup stadium or a breach of bilateral investment treaties.
Arbitration awards are by their nature confidential. Therefore unlike court cases the decisions are not published, meaning that (aside from the occasional appeal) there is limited opportunity to contribute to the development of commercial law.
The arbitration community is and remains committed, on an equal opportunity basis, to increasing the number of women appointed as arbitrators with the ultimate goal of full parity. This initiative, set up in 2015, is known as ‘the pledge’, which you can learn more about at www.arbitrationpledge.com.
Is arbitration at the Bar recession-proof?
London-based commercial barristers and solicitors are sought by commercial parties from all over the world and by a diverse range of industries. International arbitration work tends to be well insulated from recessions in particular jurisdictions or within particular industries. It is unlikely to be negatively affected by Brexit (although its consequences may provide some fertile ground for future disputes).
What will you do in arbitration as a pupil barrister?
Pupils typically work from 9.00 am to 6.00 pm, but some late nights and work on weekends may be required. One of the most rewarding experiences during pupillage is working late with a supervisor and a team, preparing for urgent applications or hearings.
Work during pupillage is similar to that expected of a junior barrister: legal research and drafting opinions on particular aspects of the case; producing first drafts of statements of case, or opening submissions. Pupils can be given a good deal of responsibility, commensurate with their level of experience.
Types of law practised by arbitrators
- Conflicts of laws
- International arbitration
ED JONES is a barrister specialising in commercial litigation and arbitration at 4 PUMP COURT. He studied history at the University of Oxford and was called to the Bar in 2012.
Skills and attributes sought in arbitration barristers
- The ability to grasp technical concepts
- Analytical rigour
- Determination and discipline