Young ICCA Webinars: Getting Savvy about Arbitration Research & Advocacy Writing – Diving into Your First Cases

Download the slide deck from the webinar

Download Kiran Nasir Gore's International Arbitration Advocacy Writing Checklist

Post Event Report

Written by Valentina Coli

On 11 May 2023, Young ICCA and Kluwer Arbitration held a webinar entitled “Getting Savvy about Arbitration Research & Advocacy Writing – Diving into Your First Cases” to address the main challenges faced by young arbitration practitioners as they begin drafting submissions in actual arbitrations, in contrast from the assignments they have encountered in their legal studies, and to provide them with useful tips and insights, including how to leverage Kluwer Arbitration’s practice tools to assist with this process.

Young ICCA Events Co-Director Paul Kleist opened the webinar by welcoming the speakers:  Kiran Nasir Gore, an arbitrator, dispute resolution consultant, and counsel, who currently also teaches at the George Washington University Law School and New York University's Global Study Center in Washington, DC; and Yael Hollander de Groot, a seasoned corporate lawyer and Senior Product Manager for Kluwer Arbitration.

From a student or young practitioner’s perspective, joining the arbitration practice of a law firm can be exciting and daunting at the same time. Once there, young practitioners soon come to realise that this field can be quite challenging and they may need some guidance. To help them navigate the transition from learning about arbitration, to practicing it, Ms. Gore and Ms. Hollander de Groot prepared this interactive webinar and explained Kluwer Arbitration’s key research and advocacy writing tools, including the following:

• “Profile Navigator & Relationship Indicator”: two data-driven tools that include a repository of arbitrator profiles and help uncover potential conflicts of interest related to arbitrators and mitigate the risk of arbitrator challenges;
• “Practical Insights”: guidance on over 40 arbitration-related topics, including in-depth comparative jurisdictional and institutional notes as well as suggested reading;
• “Quick Answers”: as suggested by its name, this function gives over 400 short and crisp answers to the most common questions in the arbitration process divided into 5 main categories: appointment and challenge; drafting arbitration agreements; privacy and confidentiality; sovereign immunity and arbitral institutions;
• “Document Guides and Examples”: this is an extensive collection of document templates that can be downloaded and used for any step in the arbitration proceeding, from a Request for Arbitration to the Final Award.

Defining the contours of your case

During the first part of the webinar, the speakers discussed the relevance of the Terms of Reference. In cases where Terms of Reference are established, this document constitutes the framework of the entire arbitration and sets the boundaries for both the parties and the arbitrators. As there is no one-size-fits-all approach in this regard, the Terms of Reference may either be drafted by the arbitrators themselves or, more frequently, by young practitioners because the tribunal has requested that the parties submit drafts of the full document and/or certain sections for consideration.

So, Ms. Gore and Ms. Hollander de Groot showed the tools available on Kluwer Arbitration to help junior lawyers in understanding what the Terms of Reference may contain and the drafting process. In particular, they suggested to use the “Quick Answers” tool to clarify any doubt pertaining to the structure of the Terms of Reference under different institutional rules, the “Document Guides and Examples” tool for document samples of different arbitral institutions and the “Practical Insights” tool to gain information on how to approach this task for the first time. Additional guidance may also be found in Kluwer Arbitration generally, where users can search for “Commentaries” and other sources that may help to explain the function of the Terms of Reference and how it can be effectively drafted and then used to guide an arbitration. In instances where younger practitioners are encountering Terms of Reference for the first time, these tools may be invaluable.

Ms. Gore also highlighted the importance of mapping the case at hand, drawing upon a method that Lucy Reed had explained to her. In this approach, the following categories are the main features of arbitration advocacy: (1) Jurisdiction, (2) Arbitration Agreement, (3) Breach and Liability, (4) Defences and Counterclaims, and (5) Damages. All of these elements likely would appear in the Terms of Reference so this may be a good starting place to understand the case. It follows that all elements of a legal submission must fit into and support one of these categories. If it does not, then even if it is interesting information, it does not effectively support the advocacy process.

Drafting key legal submissions: Statements of Claim and Defence and Witness Statements

In the second part of the webinar, the speakers focused on advocacy writing, using Statements of Claim and Defence and Witness Statements as the focus of the discussion. As the ultimate goal is to persuade the arbitrator(s) to agree with the conclusions in favour of one’s own client, they identified the two key requirements to achieve this aim: (1) perspective and (2) knowledge of the audience.

To start off the discussion on Statements of Claim and Defence, Ms. Gore suggested every young practitioner to use the CREAC Method, a well-established formula that is often taught in law schools and which involves structuring the small-scale (i.e., each individual argument) of legal advocacy in the following order: Conclusion, Rule and Explanation, Analysis and Conclusion. Each of these elements was discussed in detail with key drafting tips provided along the way. Those drafting tips were also summarised in the speakers’ slides and in the advocacy checklist prepared by Ms. Gore that was made available to participants. Meanwhile, Ms. Hollander de Groot demonstrated tools available in Kluwer Arbitration that can support this phase of legal drafting, including the templates for Statements of Claim and Defence that are available in Kluwer Arbitration.

As overall and more general tips, Ms. Gore suggested to effectively demonstrate the client’s perspective and provided some legal writing strategies that may make the overall submission more persuasive, for example, by injecting the facts section with the client’s perspective and story elements so that the reader finds it more engaging. Other tips include that young practitioners may also develop a theme (e.g. the client behaved correctly), prioritize different topics, and use active and passive voice strategically.

The discussion then transitioned to Witness Statements on behalf of fact witnesses and Ms. Gore discussed the importance of drafting these in manner that is directly supportive of the advocacy submissions prepared by the team. This requires intimate knowledge of the claims and defences, so once again, Ms. Gore reminded attendees to remember the value of mapping their cases to ensure that all information presented by a witness is supportive of a key element of the case strategy.

Ms. Hollander de Groot then demonstrated how to access templates in Kluwer Arbitration of Witness Statements. She also demonstrated how to access tools and commentaries in Kluwer Arbitration that can help young practitioners to better understand the role of witnesses, their written statements, and cross-examination in arbitrations, so that young practitioners can better collaborate with witnesses to draft effective and narrowly-tailored witness statements that do not open the door to unnecessary cross-examination.

Finally, Ms. Gore provided some general tips. She suggested that young practitioners think about how they can help to support their witness’ credibility (e.g. by sharing credentials and educational background), frame the statement as a story, and explain why the witness’ perspective is the most relevant, always without drawing any kind of legal conclusion, as legal submissions and conclusions are to be made by the arbitration lawyers only and not the fact witnesses.

Know your audience

Both Ms. Gore and Ms. Hollander de Groot emphasised that is important to know your audience, and thus, to know your arbitrators. It may be necessary to engage in such background research at several different stages of the arbitration, e.g., at the beginning when selecting/identifying arbitrators, when evaluating arbitrators proposed by others, and when preparing legal advocacy to ensure that the style and tone of the advocacy resonates with the arbitrators.

Ms. Hollander de Groot demonstrated Kluwer Arbitration’s “Profile Navigator & Relationship Indicator” tools, which allows researchers to easily learn more about an arbitrator’s legal background, language(s) they speak, bar admissions, prior decisions and awards, whether they have ever stated views on a certain topic or if they have prior familiarity with certain issues (as demonstrated by their writings and commentaries which may be included in Kluwer Arbitration’s extensive archives) to gain a better understanding of their views and approach.

Q&A

A Q&A session was conducted at the end of the Webinar. The speakers responded to questions submitted by participants in advance as well as live questions. The session was moderated by Mr. Kleist, and included questions to Ms. Gore and Ms. Hollander de Groot regarding the drafting of witness statements, advocating in front of a tribunal with both civil law and common law arbitrators, and the value of Kluwer Arbitration’s practical research tools.

Last but not least, Ms. Hollander de Groot concluded by saying: “In today’s fast changing world and advanced technology, lawyers are expected to be more tech savvy and clients expect lawyers to work more efficiently and reduce costs. Using practical tools within Kluwer Arbitration can really make lawyers more competitive, help them build a winning strategy and provide best services to clients”.

Participants left the Webinar with several practical drafting tips and greater knowledge of  Kluwer Arbitration’s practical tools to really help them dive into their first cases, navigate the challenges that may come up on a daily basis and, ultimately, transition to fully formed and more effective arbitration advocates.

 Meet the Speakers

Kiran Nasir Gore

Kiran Nasir Gore is an arbitrator, dispute resolution consultant, and counsel with nearly fifteen years of experience advising governments, corporations, institutions, and individuals on public and private international law, international development, foreign investment strategies, international dispute resolution, and legal investigation and compliance efforts. Kiran draws on her professional experiences as an educator at the George Washington University Law School and New York University's Global Study Center in Washington, DC. Among other topics, she teaches oral and written advocacy to JD and LLM students.

Yael Hollander de Groot 

Yael Hollander de Groot is a seasoned corporate lawyer, who turned to product development, with over a decade of experience in the legal industry. After practicing as a lawyer in one of Israel’s leading law firms and as an in-house counsel for a Nasdaq-listed company, Yael pivoted into product development, with a mission to empower fellow lawyers to work smarter and more efficiently. This passion led Yael to a UK-based scaling startup focused on automated contract review using AI. Currently, Yael is the Senior Product Manager for Kluwer Arbitration, where she is responsible for driving its strategic vision.

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