Originally from European International Arbitration Review (EIAR)

It is a truth never acknowledged that the perennial discussions of reducing time and costs in conferences, arbitration journals and around any coffee pot where two practitioners meet, always have (at least) two things in common. Firstly, the discussion always begins with a story about what some other ill-willed advocate did, motivated by some bad-faith client, unimpeded by some ineffectual arbitrator(s) and under-supervised by some (or no) arbitral institution. Secondly (and relatedly), it was always the responsibility of someone other than the speaker to “do something” about it. There follow the usual laments about the “Americanisation” of arbitration practice, paeans to the mythical arbitrator who will devise a panacea to make the parties behave within the confines of what we collectively understand to be the unarticulated norms of what is “acceptable” in international arbitration practice. Better yet, perhaps the latest change to the rules of arbitration or the practices of an administering institution will put an end to the encroachment of litigious hooliganism on “our way of doing things.” Perhaps, on the other hand, the paragraph above made no sense to anyone practising exclusively in the pure essence of international arbitration. Indeed, according to this view, there is “acceptable” and “unacceptable”, and even “right” and “wrong”. Thus, maybe it only strikes as curious, those who practice a broad spectrum of litigation, including-butmost-definitely-not-limited-to arbitration.

For those readers who have the privilege (or the misfortune!) to practice exclusively in the area of arbitration, I will let you in on a secret: outside of the arbitration world, the lament described above can be nearly the opposite. Short nods to “professional courtesy” aside, there are those who (in smaller circles) take crowing pride in dilatory manoeuvring, tactical (ab)use of procedural rules and every attempt to frustrate and impede an opponent’s presentation of his or her case on the merits. Practitioners even have a nice-sounding code name for such practices when they are proudly discussed in litigation conferences: “zealous advocacy”. Among friends and in private, it is just called “Boo-YAH!”2