Young ICCA Skills Training Workshop: Written Advocacy in International Arbitration

Post Event Report

by Syed Ahmad Omer Akif & Fatima Wahla, Students, Shiekh Ahmad Hassan School of Law, Lahore University of Management Sciences 

On 29 April 2017, Young ICCA with the support of the School of Law of the Lahore University of Management Sciences (LUMS), the Center of International Investment and Commercial Arbitration (CIICA), and Clyde & Co, held a Skills Training Workshop in Lahore, Pakistan. The workshop was hosted by the Shaikh Ahmad Hassan School of Law of LUMS at the Asifa Irfran Moot Court Room and was attended by a diverse crowd of over 40 participants.

The topic of the workshop was ‘Written Advocacy in International Arbitration’. The workshop was conducted by ten speakers over two panels moderated by Mr Rana Sajjad, President CIICA and Mr Umer Akram Chaudhry, Adjunct Faculty member at LUMS.

PANEL 1 – HOW TO PREPARE PERSUASIVE WRITTEN PLEADINGS

The first speaker of the workshop, Mr Toby Landau QC, Barrister, Essex Court Chambers, London, spoke in detail about ‘Prevalent practices of written pleadings and how your tribunal is likely to react’. Mr Landau remarked that the adversarial nature of arbitration necessitates that counsel of both parties play a vital role in assisting and educating the tribunal. The preferred method of achieving such a result is to place yourself in the arbitrator’s position, analyze her thought process, and then draft pleadings to communicate the case most effectively. Mr Landau suggested that the point of this exercise is to realize that arbitrators are also humans who are likely to employ mental effort and techniques to simplify the task of understanding complex submissions of the parties. Persuasive submissions can be prepared with the employment of two common heuristics: anchoring and confirmation bias. Anchoring provides arbitrators with points of references – like beacons in a sea – to reach a conclusion. Good lawyers anchor thoughts of the arbitrator towards the direction of the desired result. Similarly, arbitrators are subject to confirmation bias which makes them more receptive to information reaffirming certain preconceived notions. Smart lawyers draft their pleadings in a manner that appeals to the mental maps and principles already in the arbitrator’s mind.

Mr Waleed Khalid, Partner at Cornelius, Lane & Mufti, Lahore, presented on “Fact-finding process and the importance of storytelling”. Drawing from his experience, Mr Khalid laid down a number of essential guidelines for undertaking the fact-finding process and presenting a convincing case: (a) fact-finding process should not be limited to strictly legal aspects but should involve a cross-disciplinary approach that best caters to the client’s interests; (b) lawyers thinking from the perspective of their client should present a compelling story that harmonizes well with the desired relief; (c) counsel should clearly highlight major issues to the tribunal so that the latter does not get lost in unnecessary matters not helpful to the case; (d) immersing in the intricacies of the dispute is required, and one cannot solely rely on the information provided by the client; and (e) story presented should be kept clear, concise and simple.

Mr Zafar Kalanauri, Adjunct Faculty member at LUMS, presented on ‘How to best articulate legal arguments’. Beginning with the quote “know thy judge, know thy facts, know thy law”, Mr Kalanauri stated that lawyers are script writers whose job is to frame questions and answer them. He proceeded to give useful tips for constructing solid arguments: (a) lawyers should write short sentences and paragraphs with topic; (b) use names of parties instead of procedural descriptions (claimant and respondent, etc.); (c) personal sentiments should strictly be avoided both in pleadings and oral advocacy; (d) draft pleadings from the perspective of the reader to bring clarity; (e) do not play devil’s advocate by making opposing arguments; and (f) language of the pleadings should be kept simple without referring to superlatives.

Ms Saadia Bhatty, Associate at Clyde & Co, London, spoke on ‘Post-hearing briefs: whether and how to wrap up a hearing with a brief’. Ms Bhatty, remarked that the long duration of some arbitration proceedings makes it essential to make the best use of post-hearing briefs to bring forth the most important aspects of the case to tribunal’s attention. She stated that, more often than not, a good closing submission decides the tilt of the arbitral award. Ms Bhatty stressed the importance of not repeating initial submissions but reiterating only the most important issues while anticipating opposing party’s moves. She concluded that post-hearing briefs being a last opportunity to make written submissions are supposed to help the arbitrator by clearly stating what relief is sought.

PANEL 2 - PREPARING EFFECTIVE WITNESS STATEMENTS AND EXPERT WITNESS REPORTS

The first speaker of the second panel, Mr Francis Xavier SC, Partner at Rajah & Tann, presented on ‘Drafting factual witness statements and reply witness statements’. Mr Xavier remarked that the claimant’s lawyer has to be clear about burden of proof as it is the key feature for initiating a case. He has to be well-versed in the case theory supported by affidavits. He then provided few guidelines about structuring written statements: (a) story should be told in a chronological manner; (b) story should be told in simple language avoiding legal jargon; (c) describe events in witness’s own words in active voice; (d) the statement should proceed from issue to issue; and (f) lawyers should refer to key documents in witness statements to address complex facts.

Professor Dr Martin Lau, Dean of Shaikh Ahmad Hassan School of Law of LUMS and Barrister at Essex Court Chambers, London, then gave a highly captivating presentation on ‘Drafting expert reports and reply expert reports’ by reliving his experiences as an expert witness. He shared important lessons on employing creative thinking to present evidence by adopting out of the box ideas. He further stressed that an expert witness should have done his homework, while lawyers should anticipate possible outcomes of an expert report. And often it is a good idea to ask the expert on foreign law who is familiar with the legal culture and practice of the foreign jurisdiction to go through the evidence of the case. He also remarked that expert opinions should be specific to the dispute at hand and not stated generally.

Mr Mansoor Khan, Partner at Khan & Associates, Lahore, then presented on ‘IBA’s Rules on the Taking of Evidence’. He provided the definition and scope of witness statement as given in the IBA rules. He guided that lawyers should not submit false evidence and witness statements, and should encourage the witness to speak the truth. He further stated that the IBA Rules do not prohibit seeking lawyer’s assistance and advice in preparing witness statements.

Mr Samar Abbas, Barrister, 39 Essex Chambers, London was the last speaker of the panel. He presented on ‘Including written testimony in the pleadings’. Mr Abbas pointed out that submissions often form the basis of the kind of evidence that follows. He suggested that if there are gaps in the written testimony then chances are that the decision will go the other way. He advised that if a lawyer is making a point then the same should be presented, if possible, with a document as evidence. Due to burden of pleadings, the tribunal cannot go into each and every detail. Therefore, the lawyers should facilitate it by providing schedules, diagrams, and tables, etc. The schedules, diagrams, and tables can be the anchoring devices to direct and focus the tribunal’s attention to a particular set of facts.

Each panel ended with a dynamic and insightful Q&A session.

Following the workshop, all speakers and participants were hosted at a lunch at Executive Dining Hall at LUMS. The lunch provided a further opportunity for discussions and interactions amongst speakers and participants.