Young ICCA Skills Training Workshop: Working with intersecting cultures in international arbitration
Post Event Report
by Nhu-Hoàng Tran Thang and Muhammed Elemenler 1
Introduction
On 29 September 2014, a group of 20 Young ICCA members travelled from over 12 different countries to Turkey, to attend the first Young ICCA event in Istanbul, a venue which has recently become more and more prominent in international arbitration, and a city that perfectly echoes the subject of the workshop: intersecting cultures. The Young ICCA participants were joined by 15 young local practitioners and academics in the field to engage in an interactive discussion on the impact that the differences in culture can have on the practice of international arbitration. This highly interesting subject was introduced and commented upon by Professor Bernard Hanotiau (Hanotiau & van den Berg). He was accompanied by two panels of speakers of varied levels of experience, gender and of course, of diverse cultural backgrounds, namely Mr. Okan Demirkan (Kolcuo?lu Demirkan Koçakl? Attorneys at Law), Ms. Simel Sar?alio?lu (YükselKark?nKüçük Attorney Partnership), Dr. Jodok Wicki (CMS von Erlach Poncet), Jennifer Morrison (Curtis, Mallet-Prevost, Colt & Mosle LLP), Utku Co?ar (Co?ar Avukatl?k Bürosu) and Yal?n Akmenek (Akol Avukatl?k Bürosu).
Professor Hanotiau introduced the subject, starting with the definition of the concept of culture, referring to the UNESCO Mexico City Declaration on Cultural Policies of 1982 and drawing a distinction between culture simpliciter and legal culture. As to the former, Professor Hanotiau shared some of his most telling anecdotes, ranging from the way people address or refer to others in certain cultures, to the manner in which arbitrators are to make witnesses swear on the Coran in Muslim jurisdictions. The specific anecdotes told by Professor Hanotiau and other senior speakers were the highlight of the workshop, and a true demonstration that intersecting cultures in international arbitration can be challenging, but that they are also what makes international arbitration so interesting.
Professor Hanotiau then turned to the differences in legal cultures, including expectations with regard to arbitral proceedings and the issues arising therefrom in the conduct of an arbitration. However, he noted that a process of cross fertilization in international arbitration has helped narrowing the gap between civil and common law, giving rise to a “global arbitration culture” reflected by a “uniform approach to international arbitration proceedings”, which combines features of both systems. Of course, this general acceptance of how an international arbitration has to take place is not absolute, but the advantage of an international arbitration is that it is an “à la carte” procedure which can be adapted to the particulars of the case, including any peculiar cultural dimension thereof.
I. In general
Okan Demirkan followed up on Professor Hanotiau’s keynote address with his no less amusing anecdotes. Mr. Demirkan emphasized the standpoint of counsel, underlining that the “clashes of culture” often happen between Counsel and client. Mr. Demirkan even mentioned situations in which Counsel and client of the same country can encounter cultural differences, sometimes because of a divergence in how to envisage the “internationality” of the arbitration. Another common scene of these “cultural clashes” is the hearing room. Certain witnesses, for cultural reasons, will react in a manner that could surprise you as Counsel. Being aware of the different cultures present in an international arbitration proceeding is thus essential for international arbitration lawyers. They must know in advance how to address people, how to manage humor and so on, in particular in their relations with the client, but also with the arbitrators, opposite Counsel and all others participants to the process. This golden rule is actually applicable to all players in international arbitration. Should one disregard it, he or she might appear as impolite or even biased.
Simel Sarialioglu went on to present further cultural challenges faced by Counsel, with particular emphasis on the role of local Co-Counsel. As put forth by Ms. Sarialioglu, “[t]here are always two sides of the story in an arbitration”. This explains why, when the case requires it, Turkish clients prefer to instruct both a Turkish Counsel and a Co-Counsel from a common law jurisdiction. Here a new type of cultural clash can take place, this time between the two teams of lawyers that may have completely different approaches to international arbitration and their work as Counsel. By way of example, Ms. Sarialioglu explained that civil and common lawyers have completely different habits in terms of hearing schedules. Ms. Sarialioglu also described the particular role that local Counsel play in “managing” the client in a case that implicates a Co-Counsel from a common law jurisdiction. The local Counsel is better placed to understand the client’s reactions and needs, and to explain to him why, for instance, he will have to disclose personal documents, or why he should hire an expensive barrister to plead his case.
Jodok Wicki concluded the first session of the workshop with an enlightening insight on the relevance of culture when selecting arbitrators. Once Counsel have identified the key issues of a case, they will generally look at potential candidates for appointment taking into consideration a number of criteria, including their local and/or regional experience and their cultural background. Counsel will also have regard to the candidate’s overall reputation. Dr. Wicki explained that the role that the parties expect a co-arbitrator to play varies greatly depending on the cultural background of the party and/or of the arbitrator. Finally, Dr. Wicki mentioned the fact that arbitral institutions, when called upon to appoint arbitrators, tend to move away from the cultures of the parties involved, and to appoint arbitrators from a so-called “neutral culture”.
II. Practical implications
After a short break, Jennifer Morrison addressed the matter of language in international arbitration. She stressed that the translations work in multi-lingual arbitrations should not be underestimated. It may appear excessive to have the translations done by associates, but translation agencies may not always address the legal terminology of documents in an appropriate manner. For the outcome of a case, it is more expedient to introduce translations which convey the spirit and meaning of the presented document than a literal translation of the same. She further highlighted the aspect of language in the context of expert witnesses. It yields certain advantages to have an expert who speaks the language of the arbitration. In ‘hot-tubbing’, such an expert can be more responsive and engage in discussions with the arbitrators. Moreover, an expert speaking the language of the arbitration, but testifying in his native language, has more time to think, when questions are asked; in such situations the expert may be assisted by an associate, too. Finally, she hinted at the “human dimension” of arbitral proceedings. Arbitrators who know the languages involved in the arbitration may have a better impression of the case, when listening to a testimony in different languages. If this is not the case, Counsel should make sure that testimonies come across correctly; this can be achieved e.g. by keeping eye-contact with the arbitrators, simultaneous translations or by addressing other needs of arbitrators to make sure that they understand one’s case. In this context, Professor Hanotiau mentioned the possibility of bi-lingual arbitrations, as sometimes parties have issues to express themselves e.g. in English.
Utku Cosar continued with the different attitudes concerning the sensitive topic of witness preparation. While it may violate ethical rules to prepare the witness in some jurisdictions, in others Counsel would be subject to the professional duty to prepare witnesses for the hearing. In any case, the client should not be penalized by such regulations and Counsel should address this topic as early as possible during the arbitral proceedings in order to have everyone on the same page. While rejecting the outright coaching and training of witnesses, Ms. Co?ar elaborated that there is not only one approach to prepare witnesses. Counsel should, however, aim to endow witnesses with confidence for the situation in the hearing and make them responsive for interaction with the tribunal, instead of trying to control them. The tribunal will recognize if, for example, a witness is hesitant to raise certain points or issues, which will have an impact on the credibility of the same. This point led Ms. Co?ar to the preparation of witness statements. She remarked that witness statements are almost always drafted by Counsel, a fact which should not be treated as a secret. Therefore, Counsel should pay attention to ensure the statements use easily-accessible language; the statement should be on point, stringent and thoroughly double-checked with the witness and the rest of the documents. Professor Hanotiau strongly agreed with her and emphasized the importance of a focused and truthful presentation of a case.
Yalsn Akmenek looked at document production in international arbitration. In contrast to what is widely perceived, he pointed out that for many parties, the document production procedures and especially those that are used in common law tradition, is not always an integral part of international arbitration. Whereas clients, who are used to the common law tradition want to receive more documents than the agreed rules may allow, parties from civil law countries may be reluctant to produce documents, and may feel very uneasy with the concept of producing unfavorable documents. In his view, one should stick to the agreed rules even if it means producing a negative document. Being as frank as possible evades embarrassing situation, as such negative information regularly comes up anyway. In order to tackle such issues, a culturally balanced approach is reflected in the IBA Rules on the Taking of Evidence in International Arbitration which address all accepted reasons not to produce a document. Even if these rules are not agreed on, tribunals might seek guidance in these rules. Professor Hanotiau added that, in his experience, there was nearly no document production in international arbitration before the year of 2000. It is a useful tool; nevertheless, he indicated that document production should not be too burdensome and produce too many costs.
Professor Hanotiau concluded the session by giving an overview of the cultural developments in international arbitration. In the early years, there was a reluctance to accept arbitration in some parts of the world due to the perception of partiality. But arbitration has spread all over the world nowadays. So too, a general awareness of cultural differences and how they affect international arbitration has arisen, in areas ranging from the ethical rules of Counsel to different concepts of impartiality of arbitrators. He reminded the participants that cultural aspects always play a role and one has to be sensitive to these aspects, even if attitudes are at times hard to understand, for example, if Russian parties prefer English law or Dubai parties hire English barristers. But in the end, Professor Hanotiau said, the most important aspect is to meet the parties’ expectations and to make their proceedings “à la carte”.
Conclusion
The workshop ended with a lunch at the offices of CMS, and was followed by a boat cruise on the enchanting Bosphorus. As pointed out by Professor Hanotiau in his introduction of the workshop, the topic of intersecting cultures in international arbitration is not very often discussed in international arbitration conferences and lectures. The complexity, rarity and somewhat broad scope of the subject made the success of the Istanbul workshop all the more significant. Thanks to the speakers, who managed to focus on the most relevant implications of the “clash of cultures” that can sometimes take place in international arbitration proceedings. The discussion was rich and clear, and the participants learned a myriad of useful tips and tricks to address differences in cultures in a professional manner. This “international” skill that arbitration lawyers need comes with experience. Learning about the speakers’ anecdotes and advice was thus a tremendous opportunity for all participants, who left Istanbul more conscious of the truly international state of mind required to practice international arbitration.
1 Nhu-Hoàng Tran Thang is an associate at the office of independent arbitrator Pierre Tercier. Muhammed Elemenler is an associate at the law firm ESCHER Rechtsanwälte.