Breaking into International Arbitration: A Primer

Remember 1L
Handling authority and managing precedent are usually among the first things that we learn how to do in law school. To a large degree, your first year of law school is almost entirely dedicated to that task. Just think about it: Why start the discussion of the Commerce Clause in Constitutional Law with Gibbons v. Ogden if not to illustrate the evolution of the doctrine? Handling precedent in international litigation, though, is a uniquely difficult task. One quick lesson I learned early in my first year working with international arbitration was that vast doctrinal changes occur often and in an instant. Additionally, there are often large gaps in the case law. While this might make for interesting law-review articles, it does not make the task of constructing well-supported legal arguments easy; but, such cases do present the thrill of participating in possibly the next big precedent-setting case. The grim reality though is that there is not always a “case on point.” Instead, we often are left to argue by analogy: distinguishing those cases we seek to avoid and highlighting those we wish courts would apply. Although all practitioners face such legal reality, it is especially true in the field of international litigation where the facts often simply fall in the gaps between cases.

What You Did Not Learn in Law School
Many law schools have identified the increasing need to provide international law experience and have sought to increase the availability of such instruction, such as introducing a mandatory first-year course in international law. For most new lawyers, the first few months of practice in this relatively strange area can be a flood of unfamiliar names and concepts. For a good overview of some of these substantive challenges, see Justin L. Heather’s article “An Introduction to International Arbitration.”

However, it does not take long before new practitioners begin to understand the basics of international arbitration. As an arbitration practitioner, you will become familiar with the New York Convention pretty quickly. How, though, does one apply it? What are the primary sources? This is not as easy as searching for “Federal Cases, All” in an online legal-research system. Although lawyers are generally taught that secondary sources are just that—secondary—they can be critically important to international litigation practice. International law has benefited greatly from a tradition of active scholarship. An early challenge in international arbitration is the identification of those secondary sources in the United States and abroad. Even though these materials can be expensive for practitioners to obtain, they often are crucial to helping understand challenging, new issues. To help reduce cost, always check availability of such sources in nearby law libraries.

Beyond the flood of secondary sources available, new international arbitration practitioners also will be confronted with an array of international and transnational authority. Though the principle of stare decisis—where previous rulings are binding on later panels—does not always apply in international law (for example, in International Centre for Settlement of Investment Disputes (ICSID) and World Trade Organization (WTO) dispute resolution), citing to authority from previous panel decisions often can be quite persuasive in international arbitration. Consequently, if your practice involves these types of cases, becoming familiar with those vast bodies of precedent is absolutely critical. Like secondary sources, such precedents are often not as “searchable” as U.S. case law and require different, more proactive strategies. International arbitration practitioners should commit to staying up to date with new developments. To this end, there are countless blogs and other online news sources, including the ABA’s various sections and committees, dedicated to international dispute resolution.

No Man Is an Island
Finally, new international arbitration practitioners will be quite surprised to discover the variety of organizations available that are dedicated to our practice; some even cater to our regional concentrations or subspecialties. This wealth of resources also can be extremely confusing. The challenge is effectively matching organizations with our interests. Taking a strategic and methodical approach to finding such organizations is important and can reap many rewards. The ABA’s offerings in this area are remarkably diverse and accessible, including frequent training activities and programs tailored for young practitioners.

Beyond the ABA, there is a broad universe of organizations that have developed programs or organizations dedicated to new international-arbitration practitioners. Generally, these groups can be divided into several broad categories: general organizations of international practitioners not geared toward any specialty or group; organizations focused on a specific subspecialty, such as arbitration; and organizations specifically oriented toward a particular region.

Parting Thoughts
At times, learning about and working in international arbitration can seem like too much to absorb at once. Taking a long-term view of development is important. Maybe the most important piece of advice, though, is to ask someone with more experience. Sometimes it helps to know that others are juggling or have dealt with similar challenges. Experience only comes with time unless you take the wiser approach and ask.

Harout Jack Samra is an associate with DLA Piper in Miami, Florida.