Young ICCA Skills Training Workshop: Written and Oral Advocacy in International Arbitration

Post Event Report

By Ridhish Rajvanshi, TRAIL+ Candidate (LL.M. in International Trade and Investment Law with Diploma of Advance Studies in International and Economic Law) at the World Trade Institute, Bern, Switzerland

 

The scenic and beautiful city of Copenhagen (Denmark) welcomed us during a sunny day for the Young ICCA Skills Training Workshop on “Oral and Written Advocacy Skills in International Arbitration” held on April 05, 2019. The law firm Gorrissen Federspiel kindly hosted the event at their offices, which offers a 360-degree view of the city, and other sponsors of the event were Kromann Reumert, Lassen Ricard and Plesner. The workshop was organised by the Steering Committee composed of Nadia Smahi (Bär & Karrer, Geneva), Luise Salmuth Lassen (Gorrissen Federspiel, Copenhagen), Marion Paris (Lévy Kaufmann-Kohler, Geneva), Johan Tufte-Kristensen (University of Copenhagen, Copenhagen), Fabricio Fortese (University of Stockholm, Stockholm) and Morten Dybro (Kromann Reumert, Aarhus) and kindly guided by Young ICCA Co-Chair Panagiotis Chalkias (White & Case, Geneva) and Young ICCA Events Coordinator Ana Coimbra Trigo (PLMJ Advogados, Lisbon).

 

The conference commenced with registration procedures and introductory remarks.

 

Ana Coimbra Trigo welcomed all 55 participants coming from more than 21 countries across Europe, America and Asia, comprised of practising lawyers and law students. She gave a brief overview about ICCA and Young ICCA, and encouraged the participants, who were not yet members of Young ICCA, to apply for membership and follow Young ICCA on social media.

 

After the introductory remarks, Nadia Smahi welcomed the distinguished faculty and introduced the Keynote Speaker, José Rosell (International Arbitrator, Copenhagen). Mr. Rosell’s speech focused on the distinction between the common law and civil law systems and how it may affect the arbitration proceedings. He mentioned that oral advocacy is given more importance in common law jurisdictions, whereas written advocacy is more important in civil law jurisdictions. He shared his experience on how written advocacy has grown in importance and that even though there may be no clear mandate in international arbitration, which combines both worlds, arbitrators refer to written documents, including transcripts of oral proceedings during deliberations, which usually happen the week after oral proceedings. Further, he emphasised that good preparation of the case is a must, along with consistency, and that this could determine the credibility of any lawyer before a tribunal. Additionally, it is important to have the client on board with the legal theory being put forward.

 

Before concluding, Mr. Rosell mentioned that counsel should also consider the legal consequences of the legal theory being put forward. A brilliant argument is wasted if it does not achieve its aim. He discussed the role of oral proceedings, concluding that it should viewed as a complement to the written proceedings. Therefore, during the oral proceedings, counsel should only direct the tribunal’s attention to the strong points and not to all of the points in the written submissions.

 

After the opening remarks and keynote speech, the conference moved on to the first panel discussion moderated by Andrea Roth (Bär & Karrer, Zurich) on the topic: "Written Advocacy in International Arbitration" discussed by Mathias Steinø (Hafnia Law Firm, Copenhagen), Jacob Skude Rasmussen (Gorrissen Federspiel, Copenhagen), and Åsa Waller (Mannheimer Swartling, Stockholm). The panel gave tips on drafting of written submissions and discussed what could be the ideal skeleton for written submissions, as it may differ from arbitration to arbitration. The panel stated that it was important to research and prepare as much possible before the initial proceedings, including all possible evidence and preparation of legal theories. The panel emphasised the importance of consistency for written and oral proceedings. Further, the speakers elaborated that it was also important to understand for whom the submissions are being written in order to ensure that the client is aware of the arguments presented. Most importantly, the speakers highlighted the “art of reduction”, in other words providing the facts and legal analysis in as few words as possible. The panel gave several tips when drafting a written submission:

 

• Know your reader (this includes the tribunal as well as opposing parties) and draft accordingly;
• Never prepare your written submission in haste;
• Be clear and ensure overall consistency (example: references, same names etc.)
• Be aware of who is the party and the answers to why, where, when, what;
• Be clear in what you want from who, why and when;
• Have headings for each of your written submission sections, defining issues and sub-issues;
• Get rid of beyond doubt; let facts speaks for themselves;
• Do not mix facts and law [too much].

The panel also stressed that you can be too close to the case and thus you should be realistic about your own case by preparing counter-arguments to what the opposing parties may raise, by having relevant key facts organised and by thoroughly knowing the strong and weak points of your case. The panel gave certain practical tips, highlighting the importance in verifying all the documents and references cited in the written submission, as well as having witness testimony supporting your facts and documents, and giving context to your exhibits submitted with the written submission.

 

The panel cautioned to never expose your witness to any risk which could endanger the case during or after the cross-examination. Therefore, prior identification and evaluation of the relevant witnesses is important, as to finding out which witness will not be considered credible during the cross-examination. The panel expressed that, for the reasons above, it is necessary to provide background on the witnesses, explain their stories freely and to refrain from influencing them. Counsel should prepare many notes during the meetings with the witnesses. Afterwards, it should rectify these, remove unnecessary statements and send it to the respective witness for review. The panel stated that the involvement of lawyers in drafting witness statements should be limited. Counsel should listen carefully to witnesses, take notes not pressure them and suggest alternative drafting for things they say which are not easily comprehensible. Lastly, they advised to never replicate lines from written submissions and insert them as such into witness statements.

 

For most of the participants, it was new to learn about the skeleton for written proceedings, a common practice in Denmark, which comprises a summary and conclusion of the case, specifying the relevant facts and legal provisions being relied upon. It should be brief, preferably have short and concise issue headings and refer to documents, authorities and witness statements (if any).

 

After the coffee break, the conference moved to the second panel discussion moderated by Emily Hay (Hanotiau & van den Berg, Brussels) on the topic “Oral Advocacy in International Arbitration”. The topic was discussed by Steffen Pihlblad (Danish Institute of Arbitration, Copenhagen), Hanna Roos (Quinn Emanuel Urquhart & Sullivan LLP, London) and Jimmy Skjold Hansen (Plesner, Copenhagen). The speakers gave tips on opening and closing statements as well as direct, cross and re-direct examination.

 

The panel pointed out that there is no norm for opening statements around the world and that these were based on what was agreed by parties in arbitration and, in absence of such agreements, on what guidelines were given by the tribunal. Oral submissions are more context-dependent, thus counsel should consider the situation (seat, tribunal) and decide. The purpose of oral submissions is to guide the tribunal through your pleadings and evidence. The panel reiterated that it is important to focus on the body language of the tribunal members, as we are in the “business of persuasion”.

 

While discussing the second topic on direct and re-direct examination, the panel suggested the purpose of these exercises was to support documents, fill in the gaps and provide the context of the documents by a witness. The selection of the right witness is imperative: he/she should preferably not be talkative or stubborn but be direct, short spoken and someone that can handle pressure. Regarding direct examination, the panel highlighted that counsel should ask open-ended questions and let the witness describe the context and events, narrating the story. The panel cautioned that re-direct examination was only necessary in case of damage control as a result of the cross-examination of the witness, thereby allowing the witness to clarify the context. The panel also elaborated on experiences with expert witnesses.

 

The panel moved to the last sub-topic, cross-examination, i.e. the formal interrogation of a witness called by the other party to challenge testimony already given. The panel provided tips for cross-examination, including:

 

• Be versatile, flexible and cover all points;
• Be prepared: have a road map, and reverse engineer your cross-questions to get to your end goal;
• Know your Tribunal and witness;
• Stay in control, and predict as much as possible what answers you will elicit during the cross-examination;
• React quickly, think on your feet;
• Listen carefully;
• Know the weakness of the witness and plan questions to expose those.
  
   

The panel concluded by answering questions on experiences with video conferences and by explaining how young professionals could get an opportunity to practice oral advocacy. The panel suggested that young professionals take up small or isolated cases first, thereby getting experience. But most importantly, the panel mentioned the relevance of trusting one’s own abilities.

 

After lunch, the participants were divided into four groups of 6-8 participants. Each group selected a maximum of 4 speakers to make opening statements before a tribunal of three members, generally composed of morning panellists. At the end of the session, the tribunal provided tips and feedback to the participants. Some of these were:

 

• Keep eye contact; have a moderate tone as well pace of your speech, and be humble;
• Know the facts by heart and the key allegations;
• Provide a storyline in your opening statement;
• Be brief and point what you will prove and present during your course of oral pleadings;
• Know the audience, tribunal body language, interaction and line of questions;
• Do not speculate and prepare response for possible arguments of opposite parties.
  
   

After the coffee break, a demonstration of cross-examination was conducted by Hanna Roos and Andrea Roth. Some tips that were shared during the session were:

 

• Maintain a respectful tone throughout;
• Do not ramble;
• Get the names, title and gender of your witness and Tribunal members right;
• Do not shout, interrupt, control, argue with the witness;
• Look out for and assist vulnerable witnesses;
• Always listen to the witness to avoid missing key information;
• Keep the questions simple and avoid too many questions in one sentence;
• Keep it classy – do not blame others (such as your team for missing exhibits; the buck stops with you...);
• Focus on closed-ended questions to which the possible answers are yes or no;
• Consider carefully whether to ask questions to which you do not know the answer ;
• Assist the Tribunal at all times, for example by checking that they know which exhibit you are talking about.
  
   

After the session, Luise Salmuth Lassen gave closing remarks, thanking the sponsorsas well as the panellists and the participants.

 

The participants then went on to attend a beautiful post-event cocktail reception in a trendy Copenhagen venue.

 

Much was learnt, shared and discussed on the topic of written and oral advocacy skills in International Arbitration. The personal experiences shared by the panellists throughout their discussions were some of the cherished points participants took home with them after this long and fruitful day of skills training.