Young ICCA Skills Training Workshop: Procedural Tactics and Strategies in International Arbitration
Post Event Report
By Amr Arafa, State counsel, Egyptian State Law Suits Authority (ESLA) and Nourhan Ahmed Khaled Ali Student at Faculty of Law – English Section, Ainshams University, Cairo, Egypt
On 11 December 2017, Young ICCA with the support of the Cairo Regional Center for International Commercial Arbitration (“CRCICA”) as the host for the event, sponsored by Zulficar & Partners Law Firm, held a workshop in Cairo, Egypt. The workshop focused on “International Arbitration: procedural tactics and strategies”. It was attended by over 40 attendees ranging from university graduates, to interns, associates and partners. The workshop was organized in two panels, each consisting of three speakers and two moderators.
The workshop started with an introductory speech by Ms. Antonia Birt, Young ICCA event coordinator, concerning Young ICCA and its various activities, followed by welcome remarks by Dr. Ismail Selim, the Director of CRCICA, who highlighted the services of CRCICA as an international arbitration institution. Mr. Michael E. Schneider, a founding partner at LALIVE, Geneva, delivered the keynote speech addressing procedural tactics and strategies in international arbitration. He first explored how to manage cases, handle clients and master the specifics of each case, providing perspectives and sharing anecdotes from his broad experience. He further advised young participants to make written submissions concise and clear, and shared some tips on how to handle weak points in one’s case. A further piece of advice by Michael Schneider was that every case should be organized neatly so as to make it easier for arbitrators to navigate through the case file smoothly.
Panel 1- Tactical considerations for drafting written submissions
The first panel was moderated by Mr. Amr Arafa, State counsel at the Egyptian State Law Suits Authority (ESLA). The discussion started with the first speaker Mr. Amr Omran, Associate at Freshfields, Dubai, who presented on “Differences between claimants and respondents regarding the perspective of written submissions”. Mr. Omran elaborated that each case has a story, and gave insight on how counsel should deliver their case story persuasively. Thereafter, he emphasized that, as the case proceeds, it is normal for counsel to reshape and adapt their case theory. He further highlighted the impact of strategic decisions that counsel make on their client’s behalf on the costs of arbitration.
Second speaker Ms. Salma El Baz, Senior Associate at Rizkana & Partners, Cairo, focused on “Factual witnesses and their role in an arbitration case”. Ms. El-Baz discussed every aspect relevant to witnesses. For instance, she considered credibility, background, and whether using factual witnesses in a certain case was worth the time and effort involved. She highlighted that factual witnesses can be a double-edged weapon. To avoid risks of incorrect information, if a statement is crucial to a party’s case but its veracity is dubious, it may even be worth hiring an investigator to check its authenticity. She concluded her presentation with a discussion of the ethical perspective on witness preparation for the hearing and cross-examination.
Third and final speaker on the first panel was Mr. Mohamed Shelbaya, Partner at Shearman & Sterling, Paris. He presented on “How the identity of the tribunal affects the strategy for written submissions”, discussing how the nationality and the places where the arbitrators practice law affect their decisions. Mr. Shelbaya ascertained that counsel should be mindful of their choice of arbitrators. Then, he explained that their legal background, such as common law or civil law, might affect their perspective. Thus, he emphasized that counsel shall take into consideration the arbitrators’ background while drafting their written submissions.
Panel - 2 Procedural application and other strategic decisions
The second panel was moderated by Ms. SOaad A. Hossam, PhD Candidate, MIDS (Geneva). The first speaker was Dr. Mohamed Abdel Raouf, Partner at Abdel Raouf Law Firm, Cairo. He presented on the topic of “Choosing the right Arbitrator or chair”, reminding the attendees that any arbitrator should render the award based on the facts and supporting evidence presented by the Parties. He discussed whether appointing a chair holding the nationality of the country whose law is applicable to the merits of the dispute would guarantee the quality of the award and whether and to what extent the co-arbitrators should consult the Parties while selecting the chairperson.
Second speaker was Prof. Dr. Mohamed Salah Abdel Wahab, Founding Partner at Zulficar & Partners Law Firm, who presented on “Parallel proceedings, bifurcation and trifurcation”. He discussed various strategies of bifurcation and trifurcation of proceedings as well as the specificities and impact of parallel proceedings. He used his experience either as counsel or arbitrator to illustrate his presentation and addressed the circumstances which may lead to bifurcation and/or trifurcation of proceedings. Finally, he underscored how the choice of arbitrators affects the conduct of the proceedings and any potential award.
Third and final speaker was Ms. Amani Khalifa, Principal at Khalifa Associates, Cairo. Ms. Khalifa focused on “Guerilla tactics”: what are they, and how to prevent them. She illustrated guerilla tactics using creative comparisons between Guerilla tactics and other tactics that counsel use to influence arbitral tribunals in order to obtain a favorable decision.
Each panel’s presentations were followed by dynamic and insightful Q&A sessions.
Following the workshop, all speakers and participants were kindly convened at a cocktail reception offered by the CRCICA. The reception provided a further opportunity for discussions and interactions amongst speakers and participants.