Dispute resolution law: area of practice
International dispute resolution focuses on resolving cross-border disputes between parties in different countries. There are three major advantages to parties resolving their dispute before a neutral arbitral tribunal rather than litigating in the national courts of one of the respective parties:
- Arbitration is generally a confidential process, with the notable exception of investment treaty arbitrations against States (as discussed below).
- Enforcing an arbitration award internationally is easier than enforcing a court judgment.
- The parties usually get to participate in the appointment of the members of the arbitral tribunal.
The types of dispute resolution work
Lawyers generally work on two types of cases:
- Where the contract between two or more parties provides for international arbitration in the case of a dispute. The dispute may be resolved before a tribunal constituted, for example, under the arbitration rules of the LCIA (London Court of International Arbitration) or the International Chamber of Commerce (ICC).
- Investor-state arbitration, which resolves disputes between individuals or companies and governments. These tend to be complex, high-stakes and often political cases. Venezuela’s move to nationalise its mining and oil & gas industry has provoked arbitrations in recent years. The likes of ExxonMobil and ConocoPhillips have started cases against Venezuela for the expropriation of their investments in the country. But these arbitrations can also be commenced by smaller and medium-sized investors, particularly with the availability now of third party funding in the industry. Many of these cases are brought before the International Centre for Settlement of Investment Disputes (ICSID), an institution in Washington DC in the US devoted to resolving disputes between States and foreign investors.
Users of arbitration (and therefore typical clients) include the following industries: mining, oil and gas, energy, construction, transportation, telecommunications, services and manufacturing. Working on teams of five to ten lawyers (including at least one trainee and partner), lawyers typically have three cases on the go at any one time – each lasting between three and five years on average.
Working life as an international dispute resolution solicitor
As the cases are long and follow a strict schedule, you tend to know in advance when your busy periods will be on that case, allowing you to plan ahead and achieve a relatively good work/life balance.
Working hours vary. Lawyers are in a service profession, providing the best service they can for their clients, so you should be prepared to be flexible. You may need to pull an all-nighter when you are preparing submissions or have a hearing (intense periods; you might have three or four of these per year). Once busy deadlines are over, working 9.00 am to 7.00 pm is normal provided you are organised with your time. Technology gives lawyers extra flexibility: working late doesn’t mean working late at the office. I sometimes take calls at home from clients and colleagues in Washington or Canada: late evening for me is the afternoon for them.
As an associate (anything from newly qualified to ten-years qualified), you can expect to travel roughly four times a year whereas partners travel more frequently for business development reasons. Trips are usually predictable and are rarely urgent or unexpected.
The best part about being an international dispute resolution lawyer is the intellectually stimulating, complex, cross-border work in a diverse range of industries. The downside is the sheer number of documents you need to get to grips with on each case due to the complexity of the issues at stake.
What should students be aware of in this area of practice?
There are two areas that are gaining a lot of media attention currently and are worth reading up on for training contract interviews:
- The expense and length of time that it takes to get complex arbitrations resolved.
- The purported lack of diversity among those employed in this field. Recent research put the number of female arbitrators at 16 per cent; there’s a desire to increase that number. Increasing the pool of arbitrators will also help with the current delays within the system.
What impact will Brexit have on international dispute resolution?
Brexit offers an opportunity for this area of practice rather than a negative. With the uncertainty over the enforcement of court judgments across the EU if the current arrangements do not remain in place, businesses may opt for international arbitration over litigation in the English courts if they will need to enforce the award in Europe. In addition, with the likely demise of intra-EU bilateral investment treaties sooner or later, the UK coming out of the EU, may be able to maintain its own network of bilateral investment treaties with countries in Central and Eastern Europe and be viewed as an attractive jurisdiction for structuring investments in those countries.
What skills do dispute resolution solicitors need to be successful?
- Writing skills to tell a compelling story, lawyers tend to draft relatively lengthy but focused briefs.
- Analytical skills enjoy investigating complex factual and legal issues.
- An interest in other countries and cultures.
The types of law practised in international dispute resolution
SYLVIA TONOVA is a partner at JONES DAY. She graduated in law from Georgetown University, Washington DC and has an undergraduate degree in international relations from Bradford College, also in the US.