As we rapidly evolve into a more global economy, a greater percentage of inter-business disputes will find their resolution through non-jurisdiction specific arbitration. For example, you may have a company in a civil law jurisdiction such as Spain arbitrating a business dispute with an American company. Both company's legal counsel may have different perspectives about discovery, about timing and about what is even at issue. Thus, with an international arbitration there are multiple variables not otherwise present in a domestic arbitration that require consideration, management and incorporation into your trial plan and presentation.
Much has been written about arbitration clauses and their terms, what language to include and the ramifications flowing from same. Nevertheless, not enough attention has been paid to what a client and its counsel needs to do upon being presented with an arbitral dispute to manage the variables to your advantage.
The strategies and tactics you must employ include the following: 1. Understand the issues or matters in dispute and neutralize the language differences or ambiguities. 2. Know the rules you are operating under - particularly the timing deadlines. 3. Know your arbitrators, particularly their background and the legal system with which they are familiar. 4. Plan your case to fit within the timing parameters - consider delaying the invocation of the arbitration demand to plan and more fully investigate your case. 5. Tailor your presentation to the type of presentation with which the arbitrators are familiar. 6. Understand the limitations of arbitration and work within those limitations - i.e., do not expect to make your case through discovery, where the international arbitration rules allow for only limited discovery.
Because of the timing, limited discovery, relaxed procedural rules and differing jurisdictional traditions, very often an international arbitration will be more akin to an improvised "street fight" than a proper "boxing match." For that reason, it is important to have counsel that can match wits with the witnesses on the business areas in dispute, think on his or her feet and generally have the trial skills necessary to improvise and persuade where the ability to prepare effectively is diminished.
