Learning the arbitration art

International arbitration provides a wealth of challenges and opportunities for the junior barrister, writes Josephine Higgs

International arbitration forms a substantial part of the workload of most junior barristers practising at the commercial Bar; for some, perhaps many, it represents the bulk of their practice. 

Arbitration is well-established as the dispute resolution mechanism of choice for many parties (including state entities) to international transactions, principally because of its comparative flexibility, the potential for more expeditious and cost-effective determinations, and its confidential nature. Some of those apparent advantages over litigation are, in my view, more perceived than real. However, the ability to shield disputes, and thus underlying commercial practices and malpractices, from public scrutiny remains a real and arguably increasing attraction of arbitration.

Some of the purported advantages for junior counsel are perhaps also more perceived than real. Opportunities for oral advocacy for the commercial junior in arbitration are nowadays possibly no more plentiful than those found in commercial litigation. However, international arbitration does present a wealth of other opportunities and challenges for the junior barrister, drawing upon and complementing, but also hopefully enhancing, their skills and experience gained in litigation. In any international arbitration of significant value, leading counsel will generally be instructed for the substantive hearing but will almost invariably require the assistance of a junior. On the more complex and substantial disputes, which can be very high value indeed (eg involving hundreds of millions of US dollars), a team of junior counsel might be instructed, often each dealing with a different element of the case. In my experience counsel are frequently (usefully) engaged at a very early stage and work closely with the other lawyers and usually experts in directing the course and shape of the arbitration from the outset.

The learning curve

One of the most interesting, and occasionally difficult, features of international arbitration is working with and against lawyers qualified and practising in different jurisdictions, and getting to grips with substantive and/or procedural foreign law, as well as commercial practice and cultures in different countries. International arbitration offers a junior barrister exposure to disputes emanating from a very wide range of industries and areas, including (in no particular order) energy and natural resources, aviation, international trade, shipping and commodities, ship sale and ship building, construction, pharmaceuticals, telecommunications, banking and finance, and insurance/reinsurance. Having acted in arbitrations in all those fields, I can vouch that each case involved a steep learning curve in order to engage properly with highly complex technological, engineering, scientific, medical or financial expert issues. Many arbitrations are conducted under the auspices or rules of an arbitral institution or trade association such as the ICC (International Chamber of Commerce), LCIA (London Court of International Arbitration), ARIAS (The Insurance and Reinsurance Arbitration Society), LMAA (London Maritime Arbitrators Association), SIAC (Singapore International Arbitration Centre), UNCITRAL (United Nations Commission on International Trade Law), GAFTA (Grain and Free Trade Association) and FOSFA (Federation of Oils, Seeds and Fats Associations). Some of these institutions/associations and their respective rules are more user-friendly, practical and indeed sensible than others, which in itself presents procedural challenges and headaches – usually the domain of the junior barrister. English counsel are frequently instructed to appear in hearings taking place in locations other than London, particularly Paris, Dubai, Singapore, Kuala Lumpur, Hong Kong, Bahamas, Bermuda and Cayman, giving the opportunity to travel. It is still the case that English law is frequently the substantive applicable law governing international commercial disputes such that English barristers continue to be required.

Arbitration’s fertile ground

My core areas of work include insurance and reinsurance, very often involving foreign re/insurers, re/insureds or risks situated abroad, energy and natural resources, professional negligence and civil fraud. Any major disaster, man-made or natural, will usually give rise to a host of international arbitrations (usually ICC, LCIA or ARIAS) to determine the re/insurance position, as well as a range of other disputes. A cynic asked to identify an upside to the global climate crisis would point to work for the insurance lawyers arising from the plethora of serious natural disasters in recent years. From an equally cynical perspective, the Iraq War and the Arab Spring continue to give rise to some very interesting legal work, particularly for junior barristers specialising in re/insurance. The legal gravy train set in motion by the 2008 financial crisis has not, in my view, reached the end of its tracks: disputes arising out of the failure of various commercial ventures and entities, including professional negligence claims for financial misselling and civil fraud claims, still provide a significant source of work.

The ‘Bermuda Form’ continues to provide a steady source of arbitration work. The Bermuda Form Policy is an insurance policy providing catastrophe liability cover. The insurance is governed by New York substantive law, but (typically) the seat of the arbitration is in London, and the arbitration is subject to the Arbitration Act 1996. As a result, English solicitors are often jointly instructed with US lawyers, and English counsel are instructed to act as advocates. The sums involved are usually substantial (almost invariably in excess of US$25m and sometimes upwards of US$100m), and so the main advocate at the substantive hearing is usually a Silk, but junior counsel might undertake some cross-examination of more minor witnesses or appear as an advocate in interlocutory hearings. Bermuda Form arbitrations are a notoriously fertile ground for disputes about disclosure (eg should standard disclosure be ordered, or should the IBA Rules for the Taking of Evidence be applied, does English or New York law govern issues of privilege?), and other interim procedural issues. The arbitrations generally take place in London, but occasionally the substantive hearing is held in Bermuda so junior counsel could theoretically get some summer sunshine, although it has never proved the case for me.

Cutting one’s teeth

The fields of international trade, shipping and commodities, and ship sale and ship building have traditionally provided the best opportunities for juniors to cut their teeth as advocates in arbitrations. The work for the very junior end of the Bar in these areas is perhaps less plentiful than it was when I started practice. Some of my more junior colleagues report that they get more advocacy experience in the Commercial and Admiralty Court than in LMAA arbitrations, but these areas generally remain a good source of work for junior barristers. It is not uncommon for junior barristers to be instructed as sole advocates in lower value shipping disputes, and for those disputes to run to a final hearing. These arbitrations therefore afford junior barristers the chance to hone advocacy skills and gain practical experience of running cases. String contracts on back-to-back terms (charterparties, sale of goods, etc) are often litigated in concurrent arbitrations, so a ‘baby’ junior can turn up for the middle party, sit between two Silks, and pass arguments up and down the line. While shipping is thought of as a specialist area, and to some extent it is, the practical experience gained in such arbitrations is highly transferable to the wider international arbitration arena.The same procedural issues arise and the same flexible and pragmatic approach is required in order to navigate the inevitable complications in relation to submissions, evidence and hearings.

Given that opportunities for oral advocacy remain relatively elusive for the junior barrister, it is critical to take them whenever possible, even if that involves venturing beyond one’s comfort zone. I regret the chances not taken more keenly than those less than perfectly exploited. Mistakes, hopefully minor and inconsequential, can be made in a less public arena than the full glare of court, and an arbitrator or panel of arbitrators will often prove a more sympathetic audience than an irritable commercial court judge (unless of course the arbitrator is a member of chambers).

At the more senior end of the junior commercial Bar, there is also scope for appointment as an arbitrator, rather than as counsel, in international arbitrations. I don’t regard myself as sufficiently knowledgeable or expert to take this path yet. However, the experience of sitting as an arbitrator, and thus being on the receiving end of counsel’s submissions, apparently hugely improves the quality of one’s own written and oral advocacy, which is why I should step up to the challenge as soon as possible. 

Contributor Josephine Higgs, 7 King’s Bench Walk

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Josephine Higgs

Josephine is a barrister at 7 King’s Bench Walk specialising in all areas of commercial law with a particular emphasis on insurance and reinsurance, professional negligence, conflict of laws and jurisdiction, international arbitration, and energy and natural resources.