October 2019 - John Townsend and Jim Boykin are co-authors of a chapter in Global Arbitration Review's Guide to Advocacy - Fourth Edition. The chapter is entitled "Advocacy Against an Absent Adversary."
The guide, published in October, covers everything from case strategy to written advocacy and cross-examination. Townsend, writing as an arbitrator, also contributed "comment boxes" to several of the other chapters.
Townsend and Boykin's chapter focuses on the challenge of managing a case in which the opponents refuse to appear. The authors write from experience. They lead the firm's representation of Ukrainian investors in multiple arbitrations against Russia for nationalizing Ukrainian-owned assets following its annexation of the Crimean peninsula in 2014. Russia refused to participate in the arbitrations, initiated in 2014, until this past summer.
"Every move of an active opponent can be countered and every argument actually articulated by the other side can be refuted, but to convince a tribunal to find in a client's favor and against an absent opponent requires the advocate to rebut unvoiced objections and to overcome unseen obstacles," they write.
They add that this also requires the advocate to keep the tribunal convinced it is providing due process to the absent party, without burdening the participating party with costs and delays that can result from the arbitrators' lack of confidence.
The authors go on to reason that, by recognizing, not resisting, arbitrators' need for a case to be fairly presented and diligently questioned, "a skillful advocate can steer the participating party through the turbulent waters of unopposed arbitration."
An extract from the fourth edition of GAR’s The Guide to Advocacy, first published in October 2019, is available here. The whole publication is available here.