Young ICCA Skills Training Workshop: Strategy Considerations in International Arbitration
Post Event Report
by Chadi Azzi [1] & Erik Wachman [2]
Introduction
On 13 November 2013, Young ICCA organized a workshop for young legal practitioners and students interested in arbitration. The topic of the workshop was Strategy Considerations in International Arbitration, and it took placein the offices of Squire Sanders Salkom - International Association in Kyiv, Ukraine. In anticipation of the third annual Kyiv Arbitration Days, Young ICCA constructed a panel featuring many prominent players in the international arbitration community. With a speaker panel composed of practitioners from Ukraine, Russia, Germany, Sweden and Czech Republic, participants were treated to a wide variety of perspectives and insights on strategic tactics in international arbitration.
Prior to the event, the Young ICCA steering committee lead by Olga Troshchenovych, associate at Freshfields Bruckhaus Deringer LLP, Olena Perepelynska, counsel from Sayenko Kharenko, and Mykyta Nota, associate at Avellum Partners, organized an informal drinks & dinner get-together in the heart of the city. This proved to be a great opportunity for participants and speakers alike to meet informally over casual beverages in anticipation of the following day’s event. The workshop was strategically divided into two sessions. After opening remarks by Alexander Monro, associate at Freshfields Bruckhaus Deringer LLP, the panel would first discuss counsel considerations before the hearing and secondly, proceed with an analysis of tactics during the hearing.
I. Strategy Consideration prior to the Hearing
The first session of the workshop focused mainly on strategy considerations prior to the hearing. During the session, the moderator Mykyta Nota introduced the different topics to the panel of speakers, which consisted of Rostislav Pekar, a partner at Squire Sanders, Prague, Czech Republic, and Julia Popelysheva, a Counsel at Clifford Chance CIS Limited, Moscow, Russian Federation.
As Prof. Dr. Richard Kreindler, partner at Clearly Gottlieb Steen & Hamilton and senior figure of the event, stated candidly, one of the first discussions to be held with a client before engaging in any arbitration proceeding must revolve around costs. It is vital, in this preliminary stage, to set clear budget expectations with clients, taking into account their objectives and financial resources. This reverts to the importance of keeping clients “grounded”, which as the panel explained, is one of the most difficult yet crucial aspects to deal with before the arbitration process is engaged.
At the end of the day, no counsel wants to be placed in the difficult situation of suing his or her own client for unpaid fees. This is why the panel placed a particular emphasis on asking the difficult questions regarding costs in the early stages of the process. Such pre-hearing tactics include ensuring that clients either have sufficiently deep pockets to be able to bear the costs of the process or helping clients to seek funding (i.e. in the form of third-party funding). To this extent, the panel also engaged in discussions regarding contingency fees. The speakers established that cultural and legal considerations must be carefully addressed before accepting cases on a purely contingency-fee basis. As explained by the panel, it is important to determine if such an agreement is common practice in the jurisdiction and if the courts will uphold the understanding. Again, one would not want to be placed in the difficult situation of having to confirm the validity of an agreement before receiving compensation for services rendered.
The panel next moved to tactical considerations pertaining to the arbitration itself; the choice of witness. Svetlana Romanova, Chief Legal Officer at Metinvest Holding LLC, posed an insightful question to introduce the topic, “If counsel can ascertain and prove their own facts, why are witnesses needed in an arbitration in the first place?”. The question served to highlight the importance of a factor that can often be overlooked in arbitration proceedings; the human element. The panelists ultimately concurred that witnesses are not necessarily needed to prove certain facts. Rather, they are useful in depicting a meaning to the dispute and illustrating their story before the Tribunal. In order to so do, there are certain characteristics that must be present in a witness. To help practitioners select effective witnesses, the panel set out three criteria that should be considered in the selection process:
· Honesty – Without honesty, there is no credibility. The witness must be able to convey to the deciding party that they have been truthful in the recollection of their events, particularly in the cross-examination phase of the process.
· Emotional resilience – Witnesses will invariably be subject to difficult questions. Before selection, counsel should be confident that witnesses could withstand such a barrage by opposing counsel and keep their composure under pressure.
· Communication skills – Language skills, both of counsel and the arbitral Tribunal are important to consider in selecting a witness. Finding a mutually comprehensible basis is vital. The witness should be able to effectively communicate with the parties (particularly the Tribunal) to ensure their story is understood as intended and not lost in translation.
II. Strategy Considerations at the Hearing
The second session of the workshop focused mainly on strategy considerations at the hearing. During the session, the moderator Olena Perepelynska introduced the different topics to the panel of speakers, which consisted of Markiyan Kliuchkovskyi, a partner at Egorov Puginsky Afanasiev & Partners, Eva Storskrubb, a senior associate at Roschier.
The first topic touched upon a counsel’s interaction with the members of the Tribunal and opposing counsel. During the course of the discussions, the panel of speakers reiterated the importance of the human aspects of arbitration. Markiyan Kliuchkovskyi pointed to the importance of not overlooking the subtle human elements that play in a dispute such as the body language of all the participants in the arbitration. Counsel should always aim to develop a positive relationship with all the participants in the hearing room, from the translators to the Chair. Furthermore, the panel agreed that it is important for counsel to thoroughly research the arbitrators that will form the Tribunal, as this will allow them to acquire a better understanding of the arbitrators’ reasons and motivations behind their past decisions. Another important remark issued by the panel, serving as a reminder for associates in the arbitration process, is to remember to maintain eye contact with all the arbitrators and not solely the Chair.
The second topic discussed by the panel pertained to the importance of acquainting the Tribunal with the relevant issues and evidence of the file. Briefly, regarding the opening statement, the panel explained that counsel must precisely and efficiently state their case as well as the other parties’ weaknesses.
The third topic presented during the second session of the workshop pertained to witness examination and the importance of paying attention to cultural differences. With regards to examination, several factors are to be considered: the sequence of the questions and arguments; prioritizing the questions in dispute; the importance of always directly addressing the Tribunal’s questions and directing the content of your witnesses during testimonies. With respect to cross-examination, the panellists shared some very insightful information. They explained that cross-examination is not to be a dialogue between counsel and the witness, but rather almost a script; counsel is to know the answer to every question that is presented to the witness. Furthermore, counsel is to avoid unnecessary aggressiveness as well as questions asking “why” as this could open the door to any given answer. The ideal outcome of a cross-examination is: 1) the witness tells your story; or 2) the witness’ credibility is successfully refuted.
Leading the Tribunal to the desired resolution of the dispute will be better achieved if counsel is able to consider all the elements discussed during the course of the workshop. A good Tribunal will always be looking to make the right decision. It is the counsel’s job to make sure that the Tribunal is properly guided to this correct decision.
III. Summary of Take-aways for Young Practitioners
i. Do not be afraid to ask your peers for greater involvement in an arbitration. As Prof. Dr. Kreindler alluded to, senior members of arbitration teams are receptive to ambitious lawyers who are courageous enough to ask for greater responsibility. One way of doing so is to request to cross-examine a witness during a procedure. As explained by the panel, this can be a beneficial exercise for both juniors and seniors in the arbitration group, whereby juniors acquire advocacy experience in the arbitration room and seniors, from a strategic standpoint, can establish goodwill in the proceedings by instilling confidence in their more junior associates.
ii. Do not neglect the human aspects of the case. It is important to remember that there are many other individuals present in the arbitration hearing. Particularly in multi-lingual arbitrations, secretaries and translators are hard-pressed to correctly spell party names, places, etc. One tactic suggested by Markiyan Kliuchkovskyi is to spend time during scheduled breaks to help correct spelling mistakes and overcome difficulties in transcribing. After all, arbitration is a close-knit community. Being respectful and courteous goes a long way, and will bear fruits in the long-run.
iii. If you disagree with a peer on a particular aspect of a case, speak up! In many cases and particularly in early stages of the process, the junior associate of an arbitration team often has the greatest knowledge of the details and important issues in a case. Panelists concurred that they are appreciative when a more junior member has the confidence to disagree with a senior peer on an aspect of a case, as long as there is sound reasoning for this disagreement.
iv. When in doubt, ask. Associates in the early stages of their career are not expected to knowing everything. If you are unsure of anything, seek guidance. Whether it be asking a senior member about their preference in the organization of a document binder for a hearing or simply seeking guidance on a problematic issue in a case, getting it right early is crucial to avoiding unnecessary complications in later stages.
IV. Final Remarks
The workshop concluded with a lunch served at the Squire Sanders Salkom - International Association office in Kyiv, which throughout the day provided for a great venue. All in all, the event was a great success in terms of participation from both experienced professionals and Young ICCA members. The casual, open and relaxed atmosphere facilitated interactions between all the workshop participants. The approachability and openness of the panellists enabled Young ICCA members to ask questions and advice. We would like to conclude by extending many thanks to the organizing committee for their hospitality in assembling a wonderful event in such a great city.
[1] Chadi Azzi is a JD candidate 2014 at the University of Ottawa Law Faculty (Ottawa, Canada). Prior to beginning his studies in law, he completed a Bachelor of Science with Honours in human kinetics at the University of Ottawa. Chadi is currently completing an international exchange at Universität Wien (Vienna, Austria).
[2] Erik Wachman is a student in the Programme de droit Canadien (J.D./LL.L.) at the University of Ottawa. Prior to this, he obtained a Bachelor of Commerce degree from Queen’s University (2011). Erik is currently completing an international exchange in Vienna, Austria at the Juridicum Universität Wien.
Steering Committee
- Mykyta Nota, Associate, Avellum Partners, Kyiv, Ukraine
- Olena Perepelynska, Counsel, Sayenko Kharenko, Kyiv, Ukraine
- Olga Troshchenovych, Associate, Freshfields Bruckhaus Deringer, Frankfurt
Kindly guided by Maria Lokajova, Associate, Squire Sanders, Prague; Co-Chair of Young ICCA and Hussain Khan, Associate, K&L Gates, London; Events Director of Young ICCA.