Arbitration is not the same as litigation. Arbitration has developed a discrete and specialized body of rules, procedures and substantive law. Litigation procedures are not part of this body of law and have little relevance to it. Being successful in arbitration requires intimate knowledge of, and extensive experience with, arbitral rules and the arbitral process — from the filing of the arbitration demand to deliberations and award. Success in any arbitration depends on understanding the uniqueness of the arbitration process and taking advantage of the opportunities it offers to creatively present the strongest possible case for a client. Our 90%-plus success rate in arbitrations attests to mastering of the arbitration process.
Arbitration differs from litigation in multiple ways. For example, arbitration rules are intentionally skeletal and are intended to be supplemented by the parties with their own customized procedures to fit the needs of a particular case. Arbitration hearings are also conducted in an informal atmosphere, where the parties are expected to make presentations in a highly professional manner that is less adversarial than litigation advocacy. Additionally, the arbitrators who adjudicate major arbitrations are often both highly knowledgeable about the arbitral process and have specialized knowledge related to the subject matter of the dispute, and there is very limited legal precedent that binds them in forming their opinions.
Our lawyers have over 25 years of experience in arbitrating complex international and domestic cases in virtually every area of business endeavor and under virtually all institutional rules that apply to domestic and international arbitration. Furthermore, our lawyers regularly serve as arbitrators in major arbitration proceedings, both international and domestic, and some occupy key positions with major arbitral institutions.
Our lawyers also have expansive experience in drafting arbitration clauses. Because we recognize that the arbitration clause is the controlling document for key parameters in any arbitration, we offer the alternative of creating customized arbitration clauses designed to maximize our client’s advantage in arbitration. We carefully analyze factors such as the rules, venue, methods of choosing the arbitrators, and discovery procedures, and where appropriate, we clearly define limits on an arbitrator’s jurisdiction.
We approach every arbitration on behalf of the client recognizing the unique characteristics of arbitration. For example, we focus on choosing the appropriate arbitrator for the needs of the case because this choice is crucial to success in arbitration. We use an in-house database of intelligence on arbitrators, continuously updated through the high number of arbitrations we handle, that provides insight on the approach and procedures that an arbitrator is likely to take in our case and to inform our choice in selecting an arbitrator. We also strive to take advantage of the procedural flexibility of arbitration, where the rules provide only general guidance on procedures to follow in arbitration, and the detailed procedures are left to the discretion of the arbitrator: we propose comprehensive pre-arbitration procedures, including a customized discovery program, and pre-arbitration and arbitration hearing schedules, at the first preliminary conference. Additionally, using our experience as arbitrators, we perform an “arbitrator assessment” of every case to determine the significant issues and procedures from the arbitrator’s perspective, and we test the strengths and weaknesses of the case before the hearing in our unique in-house mock arbitration program.