Young ICCA Skills Training Workshop: The Organisation of Arbitral Hearings
Post Event Report
by Sean McCarthy[1]
The Dublin Dispute Resolution Centre, located in the city's legal heartland, played host to a very animated and thorough discussion on the considerations in "The Organisation of Arbitral Hearings". Taking place on the eve of the Dublin International Arbitration Day, it was the perfect starting point with which to promote Ireland's burgeoning potential as a major arbitration centre. This Young ICCA workshop, as always, brought together a panel with the very best credentials and a wealth of experience from every perspective of the commercial and interstate field.
Louise Reilly, in her role as moderator, very eloquently introduced the speakers and set out the various topics that would be discussed, welcoming intervention and comment from both the other panelists and the audience. It was clear from the outset that this workshop would be grounded in candour and in pragmatism related to the organisation and procedure of an arbitral hearing.
Audley Sheppard, as one of the most experienced and well regarded individuals in commercial arbitration practice today, opened the proceedings with a brief exposition of the more practical considerations involved in the choice of a hearing venue, as well as some of the tactical advantages that can be gained through mindfulness of the physical layout of the hearing room. The watchwords were preparedness and attention to detail, and the need to remember simpler factors like printer access and the close proximity of war rooms, accommodation etc.
Next to be presented was the comparatively specialised call for transparency of proceedings in the interstate context, by Brian McGarry. As legal counsel of the Permanent Court of Arbitration in The Hague, he described the realities of truly public hearings under its auspices and how rare they still are in practice. Mr. Sheppard perfectly contrasted the commercial arbitration view of confidentiality, with it being the cornerstone of its popularity. This is in spite of some problems in less arbitration-friendly countries, where the use of hearing transcripts in subsequent national criminal proceedings is not unusual.
David Casserly, a well known practitioner in the Court of Arbitration for Sport and Swiss arbitration in general, talked candidly about the provision of costs of a hearing and used the analogy of Ryanair, where one problem can ‘snowball’ and completely derail the journey. Overestimation of arbitration fees and prompt payment is key to preventing parties from losing the right to argue their claim due to technicalities. Mr. Casserly then took on the wide topic of the structure of a hearing on the merits of the case, choosing some of the more important practical issues that come up in daily practice.
He related some his wide experience, from the pitfalls of an overlong opening statement to the need to choose expert witnesses who can handle the pressures of joint examination. He also set out some ground rules for those clients who suddenly want a lot of attention during the hearing phase and the need to focus on preparing their case in the best way possible, rather than ensuring they participate closely.
Aimee Sweeney, an associate in Hanotiau & van den Berg and tribunal secretary in many ICC arbitrations highlighted the procedural peculiarities that aid an effective hearing, especially, in her view, the compilation of joint chronological hearing bundles. While a somewhat convoluted name, it is the most effective standardisation of the all the documents in the proceedings. This aids the efficiency of the tribunal in finding certain facts or exhibits, without having to pore over hundreds of pages. The consequences of non-attendance of witnesses and the statistical realities on how often a tribunal will draw subsequent adverse inferences were also presented. Disappointingly, this power seems to be very rarely wielded and an open question was addressed to the floor on why this happens. An answer was put forward by Mr. Sheppard in the fact that it may be given much less weight by the arbitrators in a discretionary manner, rather than resorting to more formal declarations.
David Lewis, QC in 20 Essex Street Chambers outlined very well the peculiarities in the introduction of new evidence and his own tactics in the examination of witnesses from both an English and Singaporean commercial arbitration perspective. He shared some of the insights he has gained in practice, especially with regard to cross-examining witnesses in the most effective way. He did sum up the difficult nature of preparing properly before encountering witnesses on the day, citing Dwight D. Eisenhower’s words: “In preparing for battle I have always found that plans are useless, but planning is indispensable.”
From the point of view of an arbitrator, Mr. Sheppard emphasised how necessary a pre-hearing conference call is within two weeks, so as to ‘crack the whip’ on certain issues and keep the procedural arguments to a minimum. Timetables for document production are especially relevant in this context.
Sequestration of witnesses was briefly touched on by Mr. McGarry. He gave the example of the recent Guyana v. Suriname proceedings before the PCA. Then he briefly raised the question of allowing experts to be present for the duration of the hearing rather than being sequestered. The panel discussed the topic from the commercial perspective and highlighted the jurisdictional-specific differences around the world. Prior knowledge of the relevant arbitration statute was again raised as a general way to ensure that there are no procedural surprises come ‘Day One’ of the hearing.
Post hearing briefs are the preferred method of closing the hearing process according to Mr. Sheppard, even in place of closing arguments. This is because it allows each counsel to summarise their remaining issues more concisely, in turn giving the tribunal time to reflect and address the problems one by one. The more each party feels they have at least been understood in the rationale of their position, the less likely they will be to seek annulment.
The final issue discussed was the hiring of a court reporter. Mr. McGarry regards a proficient one as being indispensable to the case as a whole even though the best may cost the parties a relatively large amount. The difference between a good court reporter and a bad one cannot be overstated in his opinion.
Anecdotal evidence was shared freely by all of the panelists during the workshop, and was very much appreciated by the audience because it so clearly illustrated the myriad non-legal factors that can easily derail the presentation of a well-prepared brief. The maxim of ‘know your arbitrators and adapt to their values’ was the underlying lesson of the day. To finish, the participants were then invited to adjourn to the Sheds Bar for much needed refreshment and further enjoyable discussion.
[1] Sean McCarthy is an Irish law graduate who holds a BCL (Law with French Law) degree from University College Dublin and is currently undertaking a Masters in International Dispute Settlement (MIDS) in the Graduate Institute of Geneva.