Young ICCA's First Annual Meeting

The first Young ICCA Skills Training Workshop was held in Geneva on 19 May 2011, on the topic of "Memorial-writing in International Arbitration". Students and young practitioners from Africa, Europe, Asia and America participated in a lively and informal discussion led by Klaus Reichert SC, Arif Hyder Ali and Anne-Veronique Schaepfler.

The session ended with an interview with Prof. Martin Hunter, who shared both his views on memorial-writing from the perspective of the arbitrator and some personal recollections on how he became an arbitration practitioner. Thanks go to co-organizers Tim Foden and Klaus Reichert.

Post Event Report

by Adaora Oputa* and Marcel Alberge Ribas**

Introduction

While ICCA celebrated the 50th anniversary of its founding and the tremendous success it has enjoyed in the decades that followed, Young ICCA held its first workshop in Geneva on 19 May 2011.

The international arbitration landscape has grown and changed during the past 50 years, in a way that perhaps was not envisaged by the select group of practitioners and scholars who founded ICCA in an attempt to promote awareness, improvement and a better understanding of international arbitration.

This aim might well be considered a mission accomplished, partially evidenced by the popularity of international arbitration in the years that followed. Accordingly, the desire to practice and gain a wider understanding of international arbitration by young practitioners has also grown, and Young ICCA, founded in order to promote networking amongst younger arbitration practitioners, is beginning to play an important role in this process.

For young practitioners, the importance of sharing knowledge and experience with more senior practitioners cannot be overstated. In that regard, the workshop was a resounding success and an invaluable experience for all those in attendance.

The workshop was kindly hosted by the Permanent Mission of Ireland to the United Nations. Klaus Reichert SC, a highly experienced arbitrator and member of the board of Arbitration Ireland, gave a useful overview of the new Irish Arbitration Act which mirrors the 2006 Model Law, allowing for a speedier and more efficient process. Ireland has now become an ICC designated venue of choice where no venue is chosen.

Writing Memorials in International Arbitration

The topic of the day was memorial writing in international arbitral proceedings. The discussion was led by Arif Hyder Ali of Crowell & Moring, Klaus Reichert SC of Brick Court Chambers, and Anne Véronique Schlaepfer of Schellenberg Wittmer. There was also significant input from Marike Paulsson of Hanotiau & van den Berg and Timothy Foden of Crowell & Moring.

Written and oral advocacy

The session commenced with discussion as to the nature of memorials; being the mechanism through which a case is presented in writing. Memorials are in fact the ‘one shot’ opportunity to make a first impression with a variety of audiences including the tribunal, counsel, the client, and in some cases the press and governmental bodies.

While oral advocacy is a primary focus in American and English style litigation, international arbitration relies more heavily on written advocacy. It was suggested that more than seventy per cent of advocacy is submitted in writing during international arbitration proceedings.

At the earliest stages of the proceedings, the level of detail to be included in memorials will often depend on strategy. Caution should be exercised by drafters, specifically with regard to the level of detail included in the request for arbitration and the answer, as the merits of the case will often not be fully known at this stage.  As Mr. Ali said, “one is master of the unspoken word, slave to the spoken.”

However, all requests for relief will need to be carefully studied and included in the initial memorials, as they more than often may not be raised at a later date. In addition, the reason why the client is entitled to relief should be made very clear at the outset.

What may be referred to as the ‘second stage’ of memorials includes what some might describe as ‘statements of case’, or a detailed discussion of the merits of the dispute. This was highlighted as the adequate moment to articulate a party’s case in full. Here, the differences in style between those from civil law and common law traditions become more apparent. Although there is an emerging trend for internationalisation, some less experienced practitioners’ written and oral advocacy is often in accordance with their legal tradition. Some practitioners attempt to tailor their style to that of the legal tradition of the arbitrator, however the usefulness of this strategy is questionable in an environment where tribunals are more than ever, truly international.

More experienced international arbitration practitioners will often focus mainly on the pre-hearing stages, and will have very similar styles of written submissions, putting their case forward in full at the necessary point. In determining how to present a memorial, any guidance given by the tribunal should be primary, and the choice of forum and institution will certainly have a bearing.

The Challenge of Memorial Length

Changing business dynamics of law firms have created a trend for memorials to be longer and more detailed. If advocates were allowed more time to undertake substantial analysis, they would put forward a more concise presentation of the case. Planning is crucial to producing documents drafted by committee, which memorials often are, and before drafting, a full and detailed discussion should be held to determine what needs to be included.

Tribunal members will not often have the capacity or the inclination to remember extensive details of an entire memorial, therefore it might be a better approach to simply draw their attention to the key issues, which unfortunately often do not get articulated until the hearing itself. Drafters should keep in mind that the memorials are intended to educate the tribunal on the issue in dispute; therefore it is important to be as concise as possible. Practitioners should also avoid excessive ‘alternative’ arguments, which may weaken, rather than strengthen a case.

Faced with the problem of ever increasing memorial length, several suggestions were made as to how the length of memorials may be reduced. Answers to this challenge included the use of penalties for unnecessary arguments such as the method utilized by leading arbitrator Jan Paulsson in a hearing involving Ukraine. Further suggestions included a more extensive case management process at the beginning of the dispute to hone in on the key issues and exhibits. The power to withhold costs was also suggested; however, practitioners should keep in mind that the costs regime does not have the same impact in every legal tradition, so its effectiveness may be limited.

The emblematic example of a three-page request for arbitration submitted by Jan Paulsson acting for a party to an arbitration, triggered some passionate discussion.  Shorter briefs may be a high-risk strategy, specifically with regard to client perceptions, as there may often be a tendency to present longer memorials in order to justify the time and money spent on them. Further, there is always the issue of the level of detail of the memorials submitted by the other side. If one party submits a lengthy and detailed memorial, one can hardly argue against the advocate’s answer being as long and as detailed as the written submission from opposing counsel.

Document Production

Document production usually takes place at the stage during which memorials begin to extensively interact with documents subject to production. The American ‘culture of discovery’ which requires document production at a relatively early stage, was discussed. Under a US federal statute, 28 U.S.C. § 1782, documents can sometimes be obtained through American courts from parties or even third parties as long as they “aid an international tribunal.” Section 1782 illustrates the potential extent of document production outside of the typical framework of international arbitration.

In international arbitration, if a document it is not referred to in the written submissions; it may be very difficult to demonstrate its relevance. However, the IBA standard for production of material relevant to the outcome of the case is not observed as often as it should be, and this results in expense and delay. 

Practitioners have suggested that document production taking place before the exchange of substantive memorials is a problem, as it is difficult to say whether the exchanged documents will actually be relevant and material to the outcome of the case. It is important to keep in mind that the most important documents are those necessary to prove the case.

The Post-Hearing Stage

There is a good argument for dispensing with post-hearing briefs and simply allocating an extra day for oral closings, given that by this stage, the arguments are usually very clear. However, requiring a gap in time between the hearing and the closing might be an intelligent measure, since otherwise there may be a risk of simply regurgitating the oral arguments of the hearing itself. 

Conclusion - Interview with Professor Martin Hunter

Professor Martin Hunter closed the discussion with several general comments about the nature of international arbitration: as opposed to ‘arbitration’, ‘international arbitration’ is by its very nature a complex, expensive and time consuming method of dispute resolution.

However, the inherent value of international arbitration lies in the fact that it is the only option in disputes of a certain nature. Such disputes arise between parties that effectively distrust each other’s legal systems meaning that international arbitration is the only possible means of resolving any disputes which arise. Professor Hunter ascribed the promulgation of the New York Convention in 1958 as marking the true birth of international arbitration, stating that international arbitration only really started when a tool was made available to make enforcement of awards effective.

Professor Hunter went on to describe how he was first drawn into the world of international arbitration as an articled clerk in 1964. Having ambitions as a corporate lawyer, he was recruited onto a project during a lull in his workload, and has never looked back since. He joked about the ‘virus’ of international arbitration: “There is no known cure, and no vaccination to prevent it”.

Having discussed the drafting of memorials, Professor Hunter most helpfully concluded with some useful and practical golden rules:

• A brainstorming session should be held on what the case is about; any issues arising from it and what is to be achieved.
• The structure of the document should be carefully planned before drafting.
• The document should be drafted in a way that tells a story.
• There should always be a separate section for facts.
• Apply the legal principles at every opportunity.
• Write in plain English.
• If at all possible, do not use adjectives; they add nothing to making the case.
• Follow the rules adopted by professional authors rather than the complex law review articles. The purpose of a book is to educate the reader and hold their attention rather than to showcase knowledge, and the rules are as follows:

1. No sentence of more than 25 words.
2. No more than one set of parenthesis in 1 sentence.
3. No paragraphs of more than 6 lines.
4. No more than one proposition in any paragraph.
5. No long words.
6. Continuous editing: edit for a different purpose every time – sense, spelling, content, word length, etc. Ideally editing should result in a document one third shorter than the original draft.
7. Unnecessary propositions should be eliminated – ask whether the reader really needs to know.

The drafters of this report thank Timothy Foden for his personal effort in welcoming the Young ICCA members in Geneva and congratulate the Young ICCA chairs for the success of the event. We also acknowledge Chege Njoroge, of Lesinko & Njoroge Advocates in Kenya, for his carefully prepared notes on the topics discussed.

*    Ms. Oputa is a Young ICCA member and a trainee solicitor at Freshfields Bruckhaus Deringer LLP.

**   Mr. Ribas is a Young ICCA member and a partner in the Brazilian law firm M. A. Ribas.

Front row (L-R): Sabrine Schnyder, Inviolata Dumbutshena, Hussain Khan, Arif Hyder Ali, Anne-Veronique Schaepfer, Sumit Rai, Aiste Traceviute, Adaora Oputa, Maria Lokojova Back row (L-R); Marike Paulsson, Rahul Donde, Chege Njoroge, Perrine Duteil, Hugh Carlson, Prof. Martin Hunter, Klaus Reichert, Tim Foden, Marcel Ribas, Amir Matar, Stefano Mechelli