Globalisation of business has been a fact for several decades now, bringing with it vast economic opportunities. Operating a business across borders creates obstacles on multiple levels; linguistic, cultural and logistical issues are likely to arise, even in successful endeavours.
In this environment, lawyers have had to evolve and adapt their services and skills to enable their business clients to accomplish their aims. Lawyers with knowledge and experience of managing cross-border transactions are highly valued by their clients for helping to clear the path and get sophisticated and complex deals closed.
But often, when matters do not go as planned, businesses have to contend with a raft of new challenges. Aside from traditional litigation, arbitration has been increasingly adopted as an effective means of resolving international commercial disputes.
As a result, opportunities for international arbitration lawyers are on the rise.
In this post, we analyse the growth in arbitration for cross-border commercial disputes, discuss the factors that companies consider when selecting arbitration lawyers, and identify a strategy that could help you build a successful international arbitration practice.
If you are interested in developing your legal career and forging a specialism that is increasingly in demand, recession-proof, and transferrable across continents, jurisdictions and industry sectors, you should consider learning more about international arbitration.
As the most popular choice of law for cross-border commercial agreements, knowledge and experience of English law is a key component of establishing yourself as an international arbitration lawyer. We will review the SQE programme, which unlocks the opportunity for lawyers just like you to become an English solicitor in just a few months through a fast-track route for qualification, without undergoing an internship, traditional training contract or fulfilling any experience requirement.
Whether you are newly qualified as a lawyer or a senior partner in your country of residence, whether you plan to live in London or remain in your home jurisdiction, or wherever you are qualified as a lawyer – be it in the U.S, Spain, Spain, Brazil, Russia, China or elsewhere – becoming a dual-qualified English solicitor via the SQE will provide you with many of the key tools for building a career as an international arbitration lawyer.
Although many national economies suffered significantly during the recession years of 2008-2012, the inexorable momentum of business towards globalisation is an irrefutable fact. According to ‘Global Flows in a Digital Age’, a 2014 report produced by McKinsey Global Institute, international trade of goods, services and finance in 2012 constituted 36% of global GDP, and it is predicted that the levels of global flows could triple over the next decade.
Indeed, ongoing bilateral and multilateral trade talks are a testament to the commitment of governments and captains of industry to enhancing global cooperation and trade development. But the statistics show that it is not just the multinational corporations that stand to benefit. International trade contributes significantly towards overall GDP growth; countries with a larger number of connections in the global trade network tend to experience more than 40% higher GDP growth than less connected countries do.
Lawyers and law firms have been no less a part of this, with the world’s leading law firms running offices across all continents, and handling matters for clients in every corner of the globe.
As a lawyer, you understand that your working practices need to adapt to the demands of your clients. To survive in the new legal order, the new breed of “global lawyers” must provide sophisticated and specialised legal services to individuals and corporate clients of all sizes anywhere in the world.
A study conducted by Syracuse University, ‘International Legal Careers: Paths and Directions’, found that globalisation is leading to an increase in the demand for international lawyers with language skills, cultural awareness and overseas experience.
While still few in number, the new breed of lawyers are at the forefront of a movement that is fundamentally changing the legal profession, and demand for their skills and services is rising.
Globalised commerce does not, of course, always work out well. Whether it is a retail business in Europe sourcing supplies in China, or a Middle Eastern petroleum company exporting to other parts of the world, even the best of intentions and the most robust contract drafting cannot prevent the risk of a dispute between the parties.
In such scenarios, the wronged party seeks to rely on a mechanism for resolving the dispute effectively. However, conscious of the cost, delay and publicity that often come with traditional litigation, commercial parties are increasingly turning to arbitration in order to settle their disputes.
In 2013, Queen Mary University of London, in conjunction with PwC, conducted its International Arbitration survey – ‘Corporate Choices in International Arbitration’ – and the results were startling: commercial entities display a strong preference for arbitration of disputes over any other method of dispute resolution.
One of the key factors cited in the survey was the perception of fairness in the arbitration process, a factor which is placed above all other considerations in dispute resolution. Whether participating in the process as a claimant or respondent, interviewees reflected that arbitration provides a sense of neutrality and fairness that cannot always be relied upon in foreign courts.
Of particular interest is the spread of arbitration across the world. In ‘Dispute Resolution in the Global Economy’, a study conducted by FTI Consulting, it was revealed that companies based in the Middle and Far East increasingly look towards arbitration as the best option for resolving international disputes.
Commercial entities recognise the major advantages offered by arbitration of cross-border disputes, and there is a growing trend towards inserting arbitration clauses into commercial agreements from the outset.
For a greater understanding of the role played by international arbitration lawyers in international business, it is helpful to view arbitration through the lens of specific global industries.
The 2013 International Arbitration Survey examined the attitudes of general counsel in large companies within three key global business sectors: Construction, Financial Services, and Energy. Arbitration is renowned for being the preferred mechanism for resolving disputes in the Construction and Energy industries, and the survey results strongly support this view.
Interestingly, the survey also uncovered the significant role played by arbitration in resolving disputes within the Financial Services industry. Although Financial Services disputes are sometimes considered ‘too legal’ to be suitable for arbitration, it nonetheless ranked as the most preferred alternative to litigation.
Respondents to the survey across all three sectors emphasised the neutrality and expertise of the decision-maker as being the key advantages in arbitration. Within Financial Services, the decision-maker’s expertise is considered to be of paramount importance, owing to the highly technical nature of the disputes. In addition, the speed of the arbitral process was found to be an advantage for disputes in which time is of the essence, when compared to litigation.
These three industries are all helping propel forward the role of arbitration in resolving international commercial and investment disputes, especially those of a high value.
But arbitration’s impact goes a long way beyond these three mega-industries; statistics released by the London Centre for International Arbitration (LCIA) for 2013 show that arbitration is frequently used to resolve disputes relating to partnerships, employment arrangements, joint ventures, shareholders’ agreements, agreements for sales of goods and supply of services, and many other areas, across all commercial sectors.
The ICC International Court of Arbitration (ICC) also revealed that during 2013, in 22% of its cases the amount in dispute was less than $1 million, while more than 11% of the participants in ICC arbitration hearings are state entities.
There is a well-known saying that a man who is his own lawyer has a fool for a client. What is true in court, however, is not necessarily applicable to arbitration. Gary Born, one of the world’s leading international arbitration lawyers, explains that some parties opt to represent themselves in arbitration proceedings, particularly in disputes involving primarily technical issues, such as commodities disputes.
However, in the vast majority of international commercial arbitration proceedings, parties do retain external counsel, especially those with particular expertise in arbitration. Such parties benefit from their experience and expertise in dealing with the complex procedural and judicial issues which typically arise in the context of an international dispute – especially as the opportunity to appeal may not be available.
Arbitration centres around the world publish annual statistics on their caseload, and the numbers paint a clear picture: the demand for arbitration as a method of dispute resolution is growing globally.
One of the most popular centres for international arbitration – LCIA – reported 10% growth in its 2013 caseload compared to the previous year, while at another leading institution, the ICC, the caseload has grown by 15% since 2008.
The international flavour of their work is also readily apparent, with only 18% of the LCIA’s cases emanating from within the UK, while ICC arbitration proceedings were conducted in 63 countries around the world during 2013.
This consistent and significant growth means one thing: there are genuine opportunities for dispute resolution lawyers with experience and expertise in arbitration proceedings, that can offer an international dimension to their clients, and who display sound commercial understanding.
Source: LCIA Registrar’s Report, 2013
Although most large companies employ in-house legal teams, when they are involved in arbitration they will most often instruct external counsel. There is, however, a trend towards retaining some of the legal work in-house. The 2013 International Arbitration survey revealed that some companies are hiring dispute resolution lawyers to bolster their ability to handle arbitration cases internally and reduce expenditure on external counsel. Nonetheless, the growth in arbitration activity clearly presents opportunities both for international arbitration lawyers operating as external counsel and those interested in in-house roles.
The survey also showed that the most important element considered when a company instructs external counsel is the lawyer’s expertise in the arbitral process. However, businesses are also careful to select external counsel with an understanding of the commercial reality in a given industry.
Certain other factors can also play a significant role in how clients choose arbitration counsel in a cross-border dispute. As one would expect, clients prefer international arbitration lawyers located in the same jurisdiction as the law governing the contract of the dispute.
This was found to be of greater importance than being located in the jurisdiction of the seat of arbitration, or the location of the client. Fundamentally, clients want assurance that their external counsel has the requisite understanding of the law governing the contract, whatever their geographic location.
When two parties agree to arbitrate their dispute, the important issues of choice of law and forum are often determined by an arbitration clause that was included in the contract that is the substance of the dispute.
The 2010 survey ‘Choices in International Arbitration’ conducted by the Queen Mary University of London in conjunction with White & Case LLP examined arbitration choices made by corporate counsel, with particular focus on the choice of law and forum.
The survey findings reveal that the governing law of the contract is predominantly the first issue to be agreed upon between the parties, often influencing the selection of seats of arbitration and choice of arbitration rules.
Greater emphasis is placed on the choice of law, as it helps the parties understand how a contractual relationship is to work. Concern for resolving disputes is relegated to a secondary consideration.
In cases of parties from different jurisdictions, the parties’ relative bargaining power can sometimes affect the choice of law for a contract, but of greater importance is concern that the choice of law is appropriate for the nature of the contract. In cases where the parties do not agree on applying either of their home legal systems, there is a strong preference for English law; 40% of corporations use English law as the governing law for their cross-border transactions. This is followed by 17% who opt for New York law.
English law is singled out for its predictability, certainty, well-developed jurisprudence and international acceptance. The international prevalence of the English language and the impact of the legal system in the Commonwealth and elsewhere also contribute to the overwhelming preference for English law in cross-border agreements.
As has been discussed, English law is the most popular choice of law for international commercial agreements, and a corollary of that is the popularity of London as a forum for resolving subsequent disputes.
Respondents to the 2010 International Arbitration Survey identified the most important factors for the selection of seat for resolving contractual disputes as being: proximity, availability of quality arbitrators and expert legal advice, national arbitration law, neutrality, reliability, track record and stability. On account of these factors, London was singled out as the most preferred seat, used by 30% of respondents, some way ahead of the next most preferred, being Geneva at 9%.
Among the reasons given for London’s leadership in arbitration are its reputation as a neutral and impartial jurisdiction, the law governing the substance of the dispute, and the established specialist international arbitration lawyers available in close proximity.
The two leading arbitration centres globally, by caseload and preference, are LCIA and ICC, based in London and Paris, respectively. But even where the arbitration does not take place in London or Paris, parties often import the procedural rules of either of these two arbitration centres to govern their proceedings.
The lesson for ambitious international arbitration lawyers is clear: London leads the world in arbitration work.
With recent developments and globalisation trends in the legal profession, lawyers are no longer confined to the jurisdiction in which they were educated and qualified. Ambitious lawyers now work and live in various countries throughout the world, becoming qualified in a second jurisdiction to increase their knowledge and experience, sharpen their competitive edge, and better meet the expectations of sophisticated clients.
Dual-qualified lawyers admitted as English solicitors carry a unique advantage in arbitration work. As has been discussed, commercial parties have a preference for using either their domestic laws, where possible, or English law, as the choice of law for their agreements.
As a result, international arbitration lawyers with expertise in both their domestic jurisdiction and the English legal system are well placed to offer clients a one-stop-shop for arbitration work. Indeed, although clients often opt to use London as the seat of arbitration, they may equally elect to use the LCIA’s rules but hold the proceedings more locally.
Thus, dual-qualified lawyers, whether based in the UK or in their home jurisdiction, have a unique advantage in their offering to clients; they can represent their clients in arbitration proceedings both in cases involving their domestic legal system and in cases involving English law; both locally and in London, the world’s capital of arbitration and one of the command centres of the global economy.
By now, you probably recognise that the natural step for legal practitioners with a keen interest in becoming international arbitration lawyers is to gain qualification in English law. The key to unlocking this opportunity is the Solicitors Qualifying Examination (SQE), which replaced the Qualified Lawyers Transfer Scheme (QLTS), which was the fast-track route for international lawyers to re-qualify as English solicitors. The SQE is administered by the Solicitors Regulation Authority (SRA), the independent regulatory body of the Law Society of England and Wales.
Interestingly enough, the majority of lawyers seeking to become dual-qualified English solicitors through the SQE or QLTS do not intend to practise in London, preferring instead to stay in their home jurisdiction and utilise the skills, qualifications and knowledge they have gained by qualifying as English solicitors.
But whether you choose to work in a leading law firm in London or remain in your home jurisdiction and develop your arbitration practice and expertise locally, holding dual-qualification in English law will create many opportunities for career advancement within international arbitration.
We started off discussing the way that the increasingly globalised nature of business is affecting dispute resolution trends, with an ever-growing demand for arbitration.
International arbitration is seen as a critical tool for maintaining confidence in cross-border transactions, and international arbitration lawyers have a vital role to play in this. Demand for international arbitration lawyers with deep commercial and industry knowledge is strong within both law firms and in-house positions.
As the leading choice of law for international business agreements, knowledge of English law is essential for developing a career in international arbitration, while London’s pre-eminence as the centre for arbitration, means that lawyers looking to stand out from the crowd and meet the expectations of sophisticated clients should consider dual-qualifying as an English lawyer through the SQE.