Young ICCA Skills Training Workshop: How to Produce a Memorial in International Arbitration

The workshop was hosted at the Washington DC offices of Squire Sanders LLP.  It dealt  with practical issues associated with how to produce memorials in international arbitration and provided tips for effective drafting and delivery of memorials.

Workshop Faculty:

• Mark Kantor – International Arbitrator
• Meg Kinnear – Secretary-General, ICSID; ICCA Governing Board Member
• David Bigge – U.S. Department of State, International Disputes
• Juan Felipe Merizalde - Dechert LLP
• Mallory Silberman – Arnold & Porter LLM (Moderator)

Post Event Report

by Meagan Foley

Students and professionals gathered at the offices of Squire Sanders LLP in Washington, DC this November to discuss best writing practices for international arbitrations. Helmed by lively international arbitrator, Mark Kantor, and moderated by Arnold & Porter LLP’s Mallory Silberman, the discussion guided attendees on an exploration through key aspects of an international arbitral memorial including conception and approach, outlining and planning, researching and drafting, and the impact of written witness evidence. ICSID Secretary-General Meg Kinnear, US Department of State international disputes attorney David Bigge, and Dechert LLP’s Juan Felipe Merizalde also spoke, imparting tips and advice on each topic from their robust experience in the field.

Mr. Bigge chimed in with insight on developing a strong core theory of the case. He recommended the use of a more direct, instructive tone rather than one that is dramatic and over-emotional.

Mr. Merizalde and Ms. Kinnear provided perspectives on organization from the giving and receiving ends of the process. Mr. Merizalde focused on timing and deadlines, emphasizing the importance of budgeting time for printing, copying, translation services, and last-minute emergencies. While Ms. Kinnear targeted consistency and ease, specifically explaining the relief practitioners afford to institutions and arbitral tribunals when the Respondent’s memorial corresponds structurally to the Claimant’s memorial.

The workshop was followed by a networking lunch at The Palm, sponsored by Arnold & Porter LLP and Dechert LLP. In the afternoon, participants toured ICSID and the World Bank facilities, and attended an inter-generational panel discussion on international arbitration. The panel professed a general consensus that international arbitration has experienced rapid growth over the past decade and looks to continue to do so. However, with rapid growth comes rapid interest, and those pursuing a career in the field must work to distinguish themselves from others. Professor Albert Jan van den Berg suggested one way to do this: ask not what the employer can do for you, but for what you can do for the employer (telling an anecdote about a student who caught his attention by emailing him with corrections to one of his publications).

After a networking cocktail at the World Bank facilities, the day eventually concluded, but the advancement of international arbitration did not. Attendees left armed with practical tips on writing and career-building, and with new professional relationships in the field to foster along the way. 

Workshop Outline

How to Produce a Memorial

I.           Memorials:  form and function

A.                  Stage of the case and how memorials differ for various stages (Claim, Defense, Reply,  Rejoinder).

B.                  Purpose of each memorial (from the standpoint of the institution, the arbitrator, and the practitioner)

C.                  Differing approaches in writing style

D.                  Impact of forum on writing style: commercial cases vs. investor state cases

II.           The Importance of Planning

A.                  Crafting an outline

B.                  Assigning tasks

C.                  Setting and maintaining deadlines

D.                  Communication throughout the process

E.                  Keeping an eye on the smaller picture: vendors, paralegal support, etc.

III.         Researching and Drafting

A.                  Research tips and sources

B.                  Impact of document production

IV.          Expert Reports and Witness Statements

A.                  Importance of experts and witnesses in arbitration

B.                  Various types of experts

V.            Tips for Success

A.                  Know your partner(s): how to meet and exceed expectations

B.                  Know your team:  how to delegate and supervise

C.                  Know your opposing counsel: importance of civility

D.                  Know your arbitrator(s): familiarity with prior decisions and publications

E.                  Know your community:  importance of keeping abreast of developments in the international arbitration community

VI.          Practical materials and handouts

A.                  Research resources

B.                  Advocacy checklist

C.                  Filing checklist

D.                  The Basics (UNCTAD Series)

E.                  Effective writing — tips and exercises

F.                  Resource guide for young practitioners

G.                 Management for mid-level associates — tips and exercises