Persuading the Arbitrator

I was honoured to give a talk to a leading international arbitration practice last week on “Persuading the Arbitrator”. Not only was it very thought provoking preparing for the talk, but I gained some great insights into how arbitral tribunals are perceived, so I came away with lots of ideas about what we as arbitrators can do better.

In my talk I focused on two areas: how to persuade in writing and how to not alienate in person.

My son is currently sitting his GCSEs and as part of his English language exam he has to do a ‘persuasive writing’ question. I took a look in one of his text books and it defined persuasive writing as “careful word choice, the development of logical arguments, and a cohesive summary”.  How hard can it be? The answer, in arbitration is quite hard actually. It is quite hard mainly because you never really know your audience, in that arbitral tribunals can have a significant level of diversity in terms of culture and legal background which can make it difficult to predict which arguments are likely to chime with the tribunal and which may not. I venture that there are, however, some points that will chime with everyone and I set them out below.

To give yourself the best chance of persuading the arbitrators, bear the following in mind:

• Don’t squander the opportunity to educate your tribunal

• Organize your writing

• Don’t over do the case theory

• Brevity, please think about brevity

• Bad facts are unavoidable, weak arguments less so

• Saying something twice doesn’t make it twice as true

• Think context, not background

• Don’t irritate your tribunal

• Think “visual aid” not powerpoint

• Be courteous at all times.