In this edition of the newsletter, we discuss the power of language in arbitration, inspired by Benjamin Wells’ presentation at English Law Day in Belgrade.
Arbitration has long been acclaimed as a more efficient and flexible alternative to traditional litigation, allowing parties to resolve disputes outside the formal court system. However, the nuances of language can profoundly impact the arbitration process and its ultimate outcomes. As parties from diverse linguistic and cultural backgrounds increasingly turn to arbitration, a deeper understanding of the hidden power of language is crucial.
One of the fundamental elements in any arbitration is drafting the arbitration clause itself. This clause, which is typically embedded within a larger commercial contract, outlines the key parameters of the arbitration process - from the governing rules and procedures to the location of the proceedings and the language to be used.
Careful and precise drafting of this clause is essential, as any ambiguities or oversights can lead to significant challenges. Parties must ensure that the language used in the clause clearly articulates their intentions and addresses potential points of contention - before the dispute even arises.
Beyond the clause, Counsel's advocacy style and strategy can be a powerful tool in shaping the arbitral proceedings. Skilled advocates adept at leveraging language to their advantage can substantially impact the arbitrator's understanding and decision-making. This includes the choice of words, rhetorical techniques and the strategic use of body language in advocacy.
Body language in advocacy can convey confidence, authority and trustworthiness or undermine an argument if it is incongruent with the spoken message which is being conveyed. Arbitrators, who are tasked with carefully evaluating the evidence and arguments are highly attuned to advocates' nonverbal cues. By mastering the art of body language, counsel can amplify the persuasive power of their language and ensure that their client's position is effectively communicated.
The language proficiency of the participants involved in the arbitration process is of paramount importance. Arbitration frequently involves parties from diverse linguistic backgrounds. Ensuring effective communication is critical to a fair and equitable process.
The use of professional interpreters and translators can be invaluable in bridging language barriers and facilitating mutual understanding. Additionally, the selection of arbitrators with strong language skills and cross-cultural awareness can greatly enhance their ability to navigate the nuances of communication and better grasp the perspectives of all involved.
The language used throughout the arbitration itself also plays a pivotal role. From the presentation of evidence and the examination of witnesses to the final arbitral award, the choice of terminology, tone and contextual framing can significantly influence the arbitrator's comprehension and decision-making.
Moreover, the language of the final arbitral award is critical. This document outlines the arbitrator's findings and decisions and must be crafted with the utmost care and precision. Ambiguous or imprecise language in the award can lead to post-arbitration challenges, delays, and even the potential for the award to be set aside by the courts.
In today's globalised business landscape, where parties from diverse linguistic and cultural backgrounds increasingly turn to arbitration to resolve their disputes, the hidden power of language cannot be overstated. By carefully considering language-related factors throughout the arbitration process - from the drafting of the clause to the final award by leveraging the strategic use of advocacy style and body language, parties can help ensure that their conflicts are resolved fairly, efficiently, and satisfactorily. At Belgravia Law we have a team of multi-lingual lawyers who are well averse to the intricacies of putting our clients’ arguments forward in the best possible light, to great effect.
