Advocacy in Commercial Arbitration

• Author: John AM Judge
• Pages: 243-289

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chapter nine

Advocacy in Commercial Arbitration

John A m JudGE

A. INTRODUCTION: LETTING GO OF THE LITIGATION

MINDSET

Advocacy is the ability to persuade. Although it is frequently re-

ferred to as an art, not a science, the skills of a good advocate can

be and are learned. In the past, young lawyers learned by working

closely with senior members of the bar. Today, there are a wide var-

iety of advocacy programs available to young lawyers that teach

fundamental advocacy skills intended to be honed at a trial in

court. However, the dispute landscape has changed signicant-

ly in recent years. With the growth of arbitration, particularly in

commercial disputes, Canadian litigators bring their litigation

strategies, skills, and practices into the arbitral forum, thinking

that it is just like a court but private. That is a mistake. While some

litigation skills can be translated into the arbitration environment,

many cannot. However, the necessary skills for arbitration can be

learned.

Good arbitral advocacy requires a sound understanding of

arbitral practices and procedures. One of Canada’s leading coun-

sel in his day, the late John Sopinka J always said that a good ad-

vocate can argue any case in any forum provided that she masters

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three basics for the case: (1) the procedural rules and practices

of the particular forum, (2) the applicable rules of evidence to

shape the story, and (3) the narrow issue of substantive law on

which the case will turn. Many Canadian litigation counsel as-

sume incorrectly that what works in court will always work in

an arbitral forum. They fail to appreciate both fundamental and

nuanced dierences in arbitration. A good advocate must aban-

don the litigation mindset and learn the primary arbitral practi-

ces to successfully adapt important advocacy skills to the arbitral

forum. The intention of this chapter is to assist in that objective

and highlight the opportunities for good advocacy in a commer-

cial arbitration, whether domestic or international.

B. THE NATURE OF ARBITRATION

Arbitration is a consensual process intended to provide exped-

itious, ecient, and cost-eective resolutions of disputes. Parties

must agree to arbitrate. This stands in stark contrast to litigation

in the courts, which are an integral part of the state-run judicial

system. The courts have statutory and inherent jurisdiction. They

exercise coercive powers over the parties, the witnesses, and, in-

deed, counsel appearing before them. Furthermore, the procedural

rules of a court are intended to apply to all nature of disputes, from

the simplest to the most complex. They are designed to achieve a

certain ideal of justice. Moreover, experience has shown that the

court rules can be readily used to delay the litigation process, frus-

trating the timely hearing of a dispute on the merits and rendering

the court process oppressively expensive for the parties, quite apart

from the delay and costs inherent in the appeal process. Cases set-

tle under the sheer weight of costs in the face of delay. By contrast,

arbitration depends on the agreement of the parties that have opt-

ed out of this court process in favour of a more ecient and private

process. The Supreme Court of Canada has repeatedly recognized

that arbitration stands outside of the state’s judicial system.

The principle of party autonomy is the foundation of arbitra-

tion. In simple terms, this means that the parties have by their

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245

agreement to arbitrate taken control of their dispute and sub-

mitted it for resolution by a nongovernmental, private decision

maker selected by or for the parties, using an impartial adjudica-

tory process that aords each party an opportunity to present its

case before a binding decision is made. As will be discussed below,

exibility of procedure is one of the hallmarks of arbitration. The

parties, by committing to arbitrate, can shape the adjudicatory

process and procedures for the particular dispute. Therefore, coun-

sel should remain cognizant that when their clients have chosen

arbitration, they have rejected the court process and chosen a dif-

ferent, preferred dispute process that aords signicant oppor-

tunities for and exibility in the conduct of that dispute process.

Both the fact of the agreement to arbitrate and the content of

that agreement have a signicant impact on the advocacy appro-

priate for the particular dispute. Therefore, the wholesale adop-

tion of the court rules of civil procedure for use in an arbitration,

which is frequently suggested by litigation counsel, not only runs

counter to the agreement of the parties but is also an abdication

of responsibility and a failure to take advantage of the exibility

oered by arbitration to develop a more expeditious and ecient

process within which to advance the clients’ case and determine

their dispute.

C. THE ARBITRATION CLAUSE

The arbitration clause is often overlooked as being the rst oppor-

tunity for good arbitral advocacy to shape the process and the

presentation of a case. The agreement of the parties to arbitrate

is normally set out in an arbitration clause contained in a more

comprehensive commercial or transactional agreement. Dur-

ing the negotiation of such an agreement, the parties and their

commercial lawyers usually focus on getting the deal done rather

than on the specic dispute resolution procedure. Litigation or

dispute counsel rarely have any signicant input into the arbi-

tration agreement, but they should. Parties are anticipating dis-

putes merely by agreeing to arbitration. Putting careful thought