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Young ICCA Workshop on Oral Advocacy

Date:
10 October 202417:00 - 20:00(CEST)
City:
Munich
Venue:
Hengeler Mueller law firm
Venue address:
Leopoldstraße 8

 

Join us for an engaging and interactive workshop focused on the art of delivering compelling opening statements in arbitration proceedings.


During this event, the first panel will lay down the basics, the do's and don'ts for delivering opening statements, whilst in the second part of the event the preselected participants will be given a Young ICCA mock case in order to deliver their opening statements before a tribunal comprised of experienced arbitrators and legal professionals.

The preselected participants will receive Young ICCA's mock case and the relevant instructions in advance. They are expected to familiarise themselves with the case, prepare and present their opening statements before the tribunal. The latter will then give feedback to the participants according to their performance.

 

Are you interested in presenting opening statements? We are collecting expressions of interest until 4 October. 

Register your interest in delivering opening statements by filling out this form.

The general registration form closes on 4 October.

 

 

Host:

 

Event Report

 

Written by Nikola Nikolic (Ph.D candidate at Ludwig Maximilian University (LMU) & Research Associate at Seven Summits Arbitration, Munich).

 

On the 10th of October 2024, Young ICCA held a workshop on oral advocacy hosted by Hengeler Mueller in Munich that attracted young practitioners and students. The workshop was organized by Shirin Gurdova, Young ICCA Co-Chair and Stefanie Efstathiou, Young ICCA Regional Representative.

 

This event offered participants valuable insights into the strategic considerations behind arbitration hearings, from effective presentation techniques to understanding cultural nuances among arbitrators. The workshop was organized in two sessions: a panel discussion and a practical exercise. 

 

The event began with a warm welcome from Stefanie, who introduced Young ICCA to the attendees, and explained its mission as a global platform for young arbitration practitioners. Stefanie emphasized that Young ICCA is committed to offering opportunities for learning and growth, including organizing events and workshops aimed at developing practical skills. She also highlighted Young ICCA’s efforts in offering LL.M. scholarships to give young lawyers a chance to pursue advanced studies and deepen their expertise in international arbitration.

 

The event’s moderator, Luisa Kuschel, Counsel at Hengeler Mueller, extended a warm welcome to the audience, outlined the agenda for the discussion and introduced the panelists: 

 

  • Dr. Anke Sessler, International Litigation and Arbitration Partner at Skadden, Arps, Slate, Meagher & Flom in Frankfurt,

  • Dr. Tilman Niedermaier, Partner at CMS Hasche Sigle in Munich,

  • Thomas Granier, Founding Partner of Anima Dispute Resolution in Paris. and

  • Dr. Martina Magnarelli, Associate at Seven Summits Arbitration in Munich. 

Takeaways from the Panel Discussion

The panel discussion revolved around oral advocacy strategies and best practices in arbitration hearings, dealing with opening statements, evidence presentation, cross-examination of factual and expert witnesses, the tribunal’s questions, and closing statements. Here are the key points from the panelists:

 

Thomas addressed the delivery of opening statements on the claimant’s side and the preparation behind a good cross-examination:

 

  • In his opening remarks, Thomas stressed the importance of structuring the opening statement to not just state the case, but to convince the tribunal of the argument’s merits. He pointed out that in many cases, the outcome hinges on a relatively small number of key documents (between 1 and 15). Therefore, the opening statement should be fact-driven and carefully crafted around those crucial pieces of evidence.

  • Thomas shared his approach: to start with a so-called reality check that enables to identify the core facts that are essential to the case and to assess the likelihood of succeeding on the case based on those facts. He underlined that if a counsel can present facts clearly and align them with a logical conclusion, this will increase chances of success. 

  • He advised to stay calm during hearings when opposing counsel presents new facts, refraining from rushing to respond immediately, but to think the needed reaction through.

  • When it comes to the use of demonstrative exhibits at the hearing, Thomas emphasized that they must be exclusively based on the relevant evidence already in the record. By directing the parties to have references to the file in the demonstratives, the tribunal can verify that the demonstrative is not based on newly introduced evidence. At the same time, he pointed out that if the facts presented during the hearing deviate from the evidence on record, the counsel loses credibility with the tribunal. “Stick to the facts and ensure everything aligns with the evidence”, he reiterated.

  • On cross-examination, Thomas offered practical advice, noting that while thorough preparation is critical, it is equally important to be prepared for unexpected situations.

  • He emphasized the difficulties in preparing certain witnesses, particularly CEOs, who are often unpredictable in their responses. However, he also pointed out that when a witness starts giving unexpected answers in cross-examination, it can also be an opportunity that counsel should seize. 

     

Martina focused on opening statements from the respondent’s perspective and on the presentation of evidence:

 

  • Martina outlined three key factors for strong opening statements when acting as counsel for respondent:

  1. Good preparation – the foundation of a successful opening statement is careful preparation and a well-thought-out case strategy. She explained that while one’s strategy should be solid from the beginning, a counsel must also remain flexible, allowing for adjustments as the case unfolds.

  2. Telling the story – it is essential to present the facts in a compelling and convincing manner. Martina highlighted the psychological effect of storytelling in arbitration, explaining that how the facts are presented can strongly influence the tribunal’s perception of the case. Especially when representing respondent, one should be mindful that the tribunal has already read and listened to the claimant’s version of the facts and its legal conclusions.

  3. Structuring the response – as counsel for respondent, one may either mirror the claimant’s structure, directly responding to their arguments point by point (with which the tribunal already has familiarity), or stir the tribunal’s attention by providing a new refreshing structure that also better highlights the strengths of the respondent’s case and puts weaknesses into context. The decision depends on a case-by-case assessment directed at choosing the strategy that will create a stronger impact on the tribunal than the one made by the claimant.

 

Martina also stressed the importance of preparing for the presentation of the evidence that will be introduced in the following phase of the hearing thoroughly. One should distill the case for the tribunal and guide it through the evidence by focusing on the essential documents and aspects which witnesses and experts will have a chance to explain. The presentation should be crafted bearing in mind the strategic decision as to whether or not to cross-examine the opposing sides’ witnesses, either to signal that the testimony is irrelevant or to limit exposure. Martina warned against monotonous presentations and advised to use a presentation style that captivates the tribunal, as hearings are turning moments in arbitration proceedings. 

 

Tilman delved into how to develop a compelling theme and offered his perspective on answering the tribunal’s questions:

 

  • Tilman emphasized the effect of psychological dynamics involved in persuading a tribunal. He stressed the importance of making the claimant’s argument clear, precise, and persuasive. Tilman suggested that one way of structuring an opening statement could be to first clearly articulate the threshold of the claim and then  to “tick the boxes” with supporting facts creating a narrative that the tribunal can easily follow and trust. His key advice to counsel is: “act as an advisor to the tribunal, do not see the tribunal as your opponent”.

  • Acknowledging the complexity of many arbitration cases, Tilman noted that one of the greatest challenges consists in presenting complicated issues in a way that is simple and understandable. He warmly advised counsel to follow a chronological sequence when presenting the case to prevent the tribunal from getting lost in convoluted or disjointed facts.

  • Tilman underscored the importance of demonstrative exhibits but cautioned against using too many or making the opening statements overly long. In his view, the best opening statements are simple and concise. 

  • During evidentiary hearings, Tilman advised against arguing with experts, as they typically have a deeper understanding of their specialized field. Instead, he suggested collaborating with your own experts beforehand to clarify roles and responsibilities, ensuring smooth coordination during the hearing.

  • Tilman also noted that when tribunals ask questions, the issues they raise are likely going to be key for the final decision.

     

Anke addressed cultural differences and effective questioning as well as the strategy behind closing statements:

 

  • Anke provided a valuable insight into cultural differences in arbitration, particularly focusing on the contrasting approaches taken by arbitrators from various legal traditions. She pointed out that German arbitrators tend to be more proactive, often adopting a style similar to judges in domestic court proceedings, frequently interrupting parties with questions. In contrast, American arbitrators typically take a more investigative approach, saving their questions for the end. It is important to be mindful of these differences when crafting one’s oral pleadings.

  • Anke categorized arbitrators’ questions into three types:

     

  1. Comprehensive questions which aim to clarify the tribunal’s understanding of the case,

  2. Focused questions which give a chance to counsel to explain additional key points that may not have been sufficiently elaborated on, 

  3. Questions of doubt which express skepticism about certain facts and challenge the parties to address specific issues.

     

  • During the hearing, she stressed the importance of staying calm when arbitrators ask challenging questions or when opposing counsel presents new, unexpected information. Anke gave an example from her practice where the tribunal ordered both parties to exchange demonstratives before the hearing to avoid surprises during the proceedings. This, however, increased the pressure on counsel when already diving into the hearing preparation, while on the other hand, it gives counsel sometimes the opportunity to spot new evidence sneaked in by opposing counsel. In addition, Anke suggested that demonstrative exhibits should be brief and to the point. Their length and content should be discussed in pre-hearing conferences to avoid excessive submissions during the hearing. She advocated for the use of visual presentation aids, such as charts, to make complex facts clearer. At the end, Anke warned against over-repetition of facts and arguments.

  • Regarding closing statements, Anke offered a practical tip: be mindful that, by the end of the hearing, both the tribunal and the parties are likely rather exhausted and there is no point to recap simply what has already been discussed. Nevertheless, counsel may still insist on delivering oral closing statements, particularly when they are in a stronger position following the presentation of evidence. Parties should, however, keep in mind as a general point that tribunals usually take the position that they don’t need summaries of the hearing as they watched and listened themselves.

     

The mock pleadings

In the second part of the workshop, Spyridon Delliou, LL.M. (sole practitioner, Munich) and Dano Brossmann (Associate at Arendt & Medernach, Luxemburg) for the claimant’s side, and Christian Rottonara (Associate at Osborne Clarke, Munich) for the respondent’s side, delivered opening statements in a Young ICCA mock case. In a fictitious post-M&A case concerning an earn-out obligation and confidentiality duties arising out of a share purchase agreement, they provided the audience with an example of practical application of the discussed strategies. Feedback from the tribunal composed of the aforenamed panelists followed. The shared advice and suggestions by the tribunal offered a chance to the attendees to understand what strategies could help develop compelling oral arguments in real arbitration proceedings.