Success in arbitration is about more than legal provisions

You present your case most strongly in an arbitration by having firm control and a clear structure from the outset. It is about keeping the focus on the goal and prioritizing the issues you want to highlight – and how much weight each of them should carry relative to the others.

Following a strictly chronological approach is not always an advantage. Avoid falling into the trap of giving lengthy accounts of every issue the other party chooses to raise – especially where these are less relevant matters and details that take up unnecessary space and, at worst, overshadow the key points of the case, with the result that the case and your position do not come across sharply enough.

That is the advice of Solveig Samsø Heide Jørgensen, an attorney who has been part of the team at MOWE advising clients on arbitration cases since 2019:

“In arbitration cases, it is important to define the playing field right from the start and to choose your battles carefully. Little is gained by writing long sections about less relevant issues that the other party may have raised to pull the case in an unhelpful direction – or to blur the picture you are painting altogether. The focus must always be on what will win the case.”

In addition, little is gained by contesting every procedural step in a long arbitration, which will usually stretch over several years. It is worth considering whether there is anything on which you can accommodate the other party, so that you gain several advantages – including saving time and effort – and reduce the risk of the arbitrators regarding you as difficult before the main hearing has even begun.

To win an arbitration case, you must control the narrative from the outset and make it easy for the reader to put themselves in your position. Give examples that support your views. Through examples, you can create images and bring emotions into play that build real understanding of your side of the case.

“Present your case as simply and compellingly as possible, and use carefully chosen examples to visualize your side of the case. In some cases, this can make the other party realize that its position may not be so convincing after all – and that can lead to a reconsideration of any settlement discussions,”

Solveig recommends, adding:

“Even though it will often take more preparatory work to gain the necessary insight into the many details of the case, it is time well spent, so that the case can be presented as sharply and unambiguously as possible from the start.”

Short, clear messages and good examples are not only powerful tools when you need to convince the other party. They also work when the arbitrators have to be convinced during the main hearing itself.

It is important to sense what the arbitrators immediately seem to respond to and ask questions about. Solveig explains:

“There is a lot to gain from listening to what the arbitrators say and leave unsaid: What would they like to hear more about? And what does their body language show that they have already understood and therefore do not need explained further? During the main hearing, it is important to be attentive and adaptable, so you can put your focus where there is something to be gained for the outcome of the case.”