GOOD MORNING FROM LONDON

20 MARCH 2024

BEING AN ADVOCATE IN ARBITRATION

EPISODE 2

“So far so good. So how do you prepare? The answer is with care and diligence. You are a professional. A company – in this case ABC Ltd – have done their research and decided you are capable of performing the role of advocate and you need to be informed, aware, open-minded, and conscientious. No last minute rush to prepare. No cutting corners. No reliance on past achievements. With each appointment you are back to square one. You have a responsibility – you have to discharge it.”

Time for some honest questions to ask yourself; Are you up to it? Are you frank with yourself? Is the appointment within your ability? Is the appointment within your work load? Are you dazzled by the fee you will earn? Do you have bills to pay? Does the appointment alleviate financial stress?  These are some of the questions that come into view. There are more.

Is there a whiff of antagonism running through the appointment – a chance to settle scores perhaps – with the other party or with their lawyers or their expert witness? Are you in “bounce back mode” after a couple of cases that did not go in your favour? Are you refreshed or exhausted? Are you up for the battle or worn out from a cross current of issues and conflicts? Are you stale? Are you being professional?

It is always the same questions and for good reason. Advocacy is exhausting, nerve-jangling, mentally challenging. It is also ethically challenging. You have your standards but are you coming under pressure to revise them – downwards? An advocate represents a client. It is the client’s interests that you pursue but we all know that there are lines to be drawn. You are the advocate and not the party and sometimes the lines are blurred. You develop a rapport with the client – you come to know him/her – you want to win the case for the client but we all know there are “buts”. You cannot misrepresent or deceive or fail to disclose something that is relevant. Put more bluntly you cannot lie or say things you know to be untrue. The temptation is there. You are in a contest. You are competitive. You want to win. But those lines are always there. There are No-Go areas. Don’t go there. You may win in the short term but you lose in the long term. Your reputation, your self-respect, your professional standards should keep you on the straight and narrow.

Then there is the Tribunal. The wingers may well be party appointed but are they partial with a temptation to go in favour of their appointing party? It happens. We have all come across it – sometimes, not every time. Do you have ‘history’ with one of the three – or sometimes five – arbitrators? Arbitration is a small world. Memories are long and issues are recalled. Again, you need to be professional and correct and principled. You have a case to win but you also have a reputation to protect.

EPISODE 3  – PREPARATION FOR THE HEARING