Young ICCA Skills Training Workshop: The Hearing: Evidence and Argument
Post Event Report
by Nadja Al Kanawati[1]
On 7 October 2014, Young ICCA gathered a group of young practitioners and students in one of the world’s premier arbitration hotspots: Geneva, Switzerland. Over 50 Young ICCA members, local students and practitioners gathered at the offices of LALIVE to learn more about the Hearing, a key phase in arbitral proceedings.
The panelists represented both counsel and arbitrators from various legal backgrounds: Frank Spoorenberg (Tavernier Tschanz), Laurence Burger (Perréard de Boccard) and Reza Mohtashami (Freshfields) spoke on the Hearing framework and oral argument, while Michael E. Schneider (LALIVE), David Roney (Sidley Austin) and Philippe Bärtsch (Schellenberg Wittmer) discussed issues concerning the presentation of evidence during the Hearing.
The discussion was preceded by a cocktail lunch in LALIVE’s historic office building, where participants had a chance to mingle and meet the panelists as well as a Young ICCA events team member, Ms. Perrine Duteil, and the steering committee members. True to Geneva’s international nature, the event’s audience represented both common and civil law jurisdictions and included academics and practitioners.
The workshop was very practical in nature; the panelists gave the participants hands-on tips and tricks on how to prep a witness or what issues to resolve during a pre-hearing conference call. The two panels were each followed by a workshop, where the participants were split into two groups and had a chance to discuss the topics raised by the speakers. This format was much appreciated by the participants, as it allowed for a discussion rich with illustrative anecdotes and a chance to appreciate how an issue may be treated very differently from one legal culture to the next.
Panel I: The Hearing Framework and Oral Argument
The first panel discussion was introduced by Ms. Nina Thommesen (Python Peter) and Mr. Alexandre Mazuranic (Schellenberg Wittmer), who presented the speakers and highlighted the importance of preparing for the Hearing from “Day One” of the arbitral proceedings.
Mr. Frank Spoorenberg (Tavernier Tschanz) presented the issue of “setting the rules for the game”, focusing on the necessity of discussing certain issues already when elaborating Procedural Order No. 1 (“PO 1”). He emphasized that this is especially important when the parties and their counsel come from different legal cultures. It was his submission that one should determine the applicable rules already at the outset of the proceedings, i.e. well before the Hearing begins. Mr. Spoorenberg selected two issues in particular that should be settled at the start of the proceedings: i) Document Production, and ii) Witnesses. Regarding the first issue, he reminded the participants that it is key to a smooth proceeding to establish a clear cut-off date for document production. Regarding his second point, Mr. Spoorenberg’s advice was that it is important that the parties discuss who can be considered a witness, since this question is treated differently in some national legal procedures, as for example in Switzerland, where the parties involved cannot be considered witnesses. He also suggested making sure both parties are familiar with the practice of elaborating a written witness statement, which is common in international arbitration. He also suggested it should be made clear what the scope of direct examination will be in addition to a written witness statement.
The second panelist, Ms. Laurence Burger (Perréard de Boccard), illustrated the importance of a well-organized Hearing and gave the participants a roadmap for what to discuss during the pre-hearing telephone conference. She suggested discussing whether all witnesses need to be called and to set the order in which they are to be examined. Ms. Burger suggested that experts should be examined in a way that opposing experts would directly follow one another. Another important point to settle during the pre-hearing conference call is whether counsel want opening and/or closing statements. Ms. Burger noted that Post Hearing Briefs (PHB) could easily substitute oral closing arguments. It is also important to agree on how to handle exhibits used during the Hearing: the parties can either submit a joint Hearing bundle or each have their separate file. According to Ms. Burger, the second option is far more common and desirable, as counsel then has the opportunity to amend his/her own file during the course of the Hearing. On a more administrative side, it is important to establish a clear daily schedule for the Hearing and decide whether a court reporter (with or without LiveNote) and/or a translator are required.
Then, Mr. Reza Mohtashami (Freshfields) wraps up the first panel by speaking of the importance of opening and closing arguments. He considers the opening as the chance to make a good first impression, because usually this is the first time counsel and the arbitrators actually meet in person. Mr. Mohtashami has a preference for oral opening arguments, as this is counsel’s opportunity to walk the arbitrators through their case. He advises to pick a theme and clearly set out a “roadmap” of a maximum of 10 important points counsel wishes to make in the opening. It is further important to take the time to really explain the key documents one wishes to rely on to the arbitral tribunal. Mr. Mohtashami stresses that presentation skills here are key – no reading your statement! He also believes that closing arguments are a key step in the proceedings and reminds the participants that this is the last thing counsel leaves the arbitral tribunal with and the goal should be to make the drafting of the award easier for the arbitrators. Mr. Mohtashami notes that submitting closing arguments in the form of a PHB can be easier for the arbitral tribunal and should be considered by counsel.
The first part was followed by a workshop where the participants, under the lead of either the panelist from the first or second panel, discussed some of the issues raised during this first session. The discussion was lively and many participants had questions and anecdotal remarks to share.
Panel II: The Evidence
The second panel was introduced by Ms. Marion Paris (Lévy Kaufmann-Kohler) and Ms. Dorothee Schramm (Sidley Austin), who introduced the panelists and touched upon the presentation skills counsel needs during the Hearing.
Mr. Michael E. Schneider (LALIVE) discussed witness examination, warning that his opinion may not represent the “mainstream” ideas and that the second panelist, Mr. David Roney, would most likely disagree with him. He contended that the Arbitral Tribunal should take over more of the questioning and take a more dominant role in the Hearings. This requires the arbitrators to be very familiar with the file and well prepared. Mr. Schneider believes that questioning by the arbitral tribunal rather than by a potentially hostile counsel puts the witness at ease and makes it easier to find the truth, avoiding that the witness shuts down when faced with an intense cross-examination. Yet, recognizing that cross-examination is one of the most exciting parts of a Hearing, Mr. Schneider shared some advice on examination techniques, including dispelling the myth that one should only ask questions to which one already knows the answer; open-ended questions are much more interesting but counsel needs to have a good sense on the scope of the possible answers.
The next panelist, Mr. David Roney (Sidley Austin), focused his presentation on witness conferencing, a practice some people refer to as “hot tubbing” – Mr. Roney, however, appealed to the participants to stop using that term. Quickly defining the notion of witness conferencing as the examination of multiple witnesses from both parties at the same time, Mr. Roney then focused his presentation on the conferencing of expert witnesses, as it is less common with fact witnesses. Although fact witnesses with special technical knowledge should be conferenced along with the experts. Mr. Roney advocated for a combination of examination methods, where the conferencing is preceded by a regular direct- and cross-examination. He believes that this is important for two reasons: i) conferencing is more efficient when the issues are already on the table; and ii) it is important for each party to have the feeling that they were able to present their case in the way they had intended. As a practical tip Mr. Roney advised that it would be a no-go for counsel to try to re-open issues that the experts have settled during conferencing and that it is, therefore, important to have the transcript reflect all agreements and disagreements of the conferencing.
The afternoon’s final panelist, Mr. Philippe Bärtsch (Schellenberg Wittmer), spoke to the use of demonstrative exhibits and technology. He stressed that while demonstrative exhibits can be useful, it is important not to overdo it, lest the arbitrators think counsel is putting on a huge show to cover up a weak case. All demonstrative exhibits must, therefore, be a truthful representation of the evidence they present. Depending on the arbitrators’ legal backgrounds they may have a different reaction to demonstrative exhibits. The key thing in a hearing, according to Mr. Bärtsch, is to master the exhibits submitted and be able to walk a witness through the relevant documents. He also stresses the importance of establishing a context and/or chronology for the relevant documents. As a good example of a powerful demonstrative exhibit Mr. Bärtsch had once used a so-called “Pinocchio-Chart” in a hearing to illustrate the difference between the witness’ testimony and documents concerning the same facts.
After another discussion round in the small groups, Ms. Noradèle Radjaj (LALIVE) delivered the closing remarks: While the topic of the workshop was the hearing, what was evident from the discussions of the afternoon was that good hearing preparation starts from the very first day, by using every opportunity to tailor the process to the client’s case and by devising and planning a strategy throughout the proceedings to optimize the presentation of the case. However, a balance needs to be struck at all levels, balance being a resounding theme of many of the presentations: The balance between the use of technology to present evidence and overwhelming the arbitrators with a show, the balance between preparing and coaching a witness and finally the balance between anticipating problems and over-regulation of issues that may not even arise.
Conclusion
Young practitioners and students learned from experienced professionals and were able to exchange their ideas and views in dynamic workshops. The workshop was thus successful in truly living up to Young ICCA’s motto: opening the doors of international arbitration. A substantial number of participants continued on to attend the annual LALIVE lecture, this year delivered by Mr. Gary Born (Wilmer Cutler Pickering and Dorr), discussing “A New Generation of International Adjudication: Reflections on Developments in International Law”: a perfect way of ending a great afternoon full of arbitration wisdom.
[1] Nadja Al Kanawati graduated from the University of Fribourg, where she interned for independent arbitrator Prof. Pierre Tercier. She is about to start her traineeship with Baker & McKenzie in Zurich.