10 June 2015: Peace Palace Seminar: Advocacy in International Arbitration

 

Professor Martin Hunter gave young practitioners from various backgrounds invaluable advice on effective advocacy in international arbitration.

 

Report: Paula Henin (International Arbitration Law Clerk, The Honorable Charles N. Brower)

 

Approximately thirty young international arbitration practitioners gathered at the Peace Palace on 10 June 2015 to learn from one of the founding fathers of international arbitration, Professor Martin Hunter.  Professor Martin Hunter is a barrister at Essex Court Chambers in London, which he joined after being a partner at Freshfields for 27 years, leading the firm’s international arbitration group. He is an Emeritus Professor of International Dispute Resolution at Nottingham Trent University and has been a Visiting Professor at several universities around the globe, including King’s College London, the University of Miami Law School and the Central European University. He is the co-author of the renowned treatise on the Law and Practice of International Arbitration (with Alan Redfern), and has published numerous books and law journal articles in the field of international arbitration. Professor Hunter is a member of the Council of ICCA, and has participated in the work of a number of organizations active in the field. He is currently chairman of the Board of Trustees of the Dubai International Arbitration Center, and was deputy-chairman of the UK Government’s committee on arbitration law reform, which was responsible for steering the English Arbitration Act of 1996 through Parliament.

 

The topic of the Peace Palace Lunchtime Seminar of 10 June 2015 was “advocacy in international arbitration”, and was addressed during four sessions moderated by the legal staff of the Permanent Court of Arbitration (“PCA”). During the seminar, which was hosted by Lise Bosman, Senior Legal Counsel at the PCA and Executive Director of ICCA Publications, Professor Martin Hunter gave invaluable advice to young practitioners on (1) written advocacy, (2) oral advocacy, (3) witness examination, and (4) other evidence.

 

The first session dealt with written advocacy in international arbitration, and was moderated by José Luis Aragon Cardiel, Assistant Legal Counsel at the PCA. Professor Hunter first reaffirmed the importance of written submissions to the arbitral tribunal’s decision-making, particularly in the context of mounting client pressure to cut back on costly hearings – which he nevertheless perceives as inevitable. Responding to a question about the efficacy of voluminous written submissions, Professor Hunter stated that they are sometimes – though not always – necessary to provide an overall, detailed picture of a case. He nevertheless expressed interest in Constantine Partasides’ suggestion that preliminary written submissions and preliminary merits hearings be held, thus allowing clients better control over costs and giving them an additional opportunity to settle. Professor Hunter then gave the Young ICCA participants advice for preparing their written submissions, advocating for minimalism. He emphasized the importance of keeping submissions and sentences concise, and shared a few writing tips. According to Professor Hunter, each sentence should be no more than 25 words and should contain no more than one set of parentheses; no paragraph should be over five or six lines; and the excessive use of adjectives and adverbs should be avoided. He advised practitioners to proofread their written work several times, each time with a different aim in mind (e.g., checking for grammar, then seeking to cut down its length), until it is easily readable. Finally, addressing a question about the role of cultural diversity in written advocacy, Professor Hunter acknowledged the difficulty of adapting one’s writing style to one’s audience, but counseled for it when possible.

 

The second session of the seminar addressed oral advocacy, and was introduced by Farouk El-Hosseny, Assistant Legal Counsel at the PCA. The discussion first focused on the role of cultural diversity in international arbitration, specifically in oral hearings. According to Professor Hunter, that diversity is to be welcomed, and international arbitration practice should strive not for uniformity, but for harmony. In this respect, Professor Hunter applauded the role of the International Bar Association’s Guidelines. Answering a question about adapting pleading styles and techniques before a multi-national tribunal, Professor Hunter emphasized that the most important thing is to establish rapport with each arbitrator. He explained that this is to some extent easier to achieve in international arbitration than in domestic litigation, as the former’s oral pleadings are less formal.

 

Professor Hunter went on to give a few tips as to how to successfully establish rapport with the tribunal, one arbitrator at a time. He insisted on the importance of establishing eye contact, and on the effectiveness of “mirroring”, i.e. the use of one’s interlocutor’s own words, phrases and body language. Of course, he explained, too much mirroring may also hurt counsel’s power of persuasion, if it goes too far in the direction of mimicking – hence the necessity of finding a balance. This advice brought about a question about how diversity in the legal profession (and specifically international arbitration) can be reconciled with the importance of “looking like your audience” as a persuasive tool. Asked specifically about women advocates pleading before all-men arbitral tribunals, Professor Hunter insisted that there is much diversity in pleading styles among women, and opined that the days of gender bias are for the most part behind us, in most countries. Finally, Professor Hunter advised young practitioners to keep oral pleadings focused, and to work hard towards gaining the tribunal’s trust – which can be done most easily once the advocate has gained his or her client’s trust and, as a result, is able to shape his or her pleadings solely in response to the arbitral tribunal’s conscious or unconscious preferences. A touch of humor may also help, but it is to be used with caution and in a manner that is carefully tailored to the audience.  

 

The third session was moderated by Lukasz Gorywoda, Assistant Legal Counsel at the PCA, and addressed witness examination in international arbitration. Professor Hunter first cautioned the seminar participants against over-preparation of witnesses, as it hurts the witnesses’ credibility. To prepare witness statements, Professor Hunter advised counsel to interview the witnesses, take notes, prepare a synopsis of the evidence they could give, and let the witnesses give their own statements. The witness’ own statement should be used as a draft to be improved for readability, but never changed in substance. Second, during examination, Professor Hunter explained the importance of establishing rapport both with one’s own and one’s opponent’s witnesses, using the same tools as described above with respect to persuading the arbitral tribunal. He advised neutrality and civility in both direct and cross-examination, which imply avoiding the use of leading questions so the testimony remains the witness’ and does not become counsel’s, and always being polite and respectful towards witnesses. When faced by an aggressive witness, counsel must avoid arguing with the witness, and should instead wait until the arbitral tribunal is irritated by the witness’ behavior and intervenes. Should the tribunal not step in of its own motion, Professor Hunter counseled young advocates to politely request the arbitral tribunal to ask the witness to change his or her demeanor.

 

The fourth and final session dealt with other evidence, and was introduced by Tino Schneider, Legal Counsel at the PCA. The discussion focused on documentary evidence and rules of privilege in a transnational setting. When two sets of privilege rules may potentially apply in a proceeding, Professor Hunter’s approach is to always apply the “lowest common denominator”, i.e. the most protective rule. The reasoning behind this position is that it would be unfair to compel disclosure of a document whose authors had reasonably assumed would be privileged at the time of drafting. However, because it would be equally unfair to apply different rules to different parties on the sole basis that they are from different legal traditions, the lowest common denominator should always apply to both parties. In the context of investor-state arbitration, Professor Hunter emphasized the importance of protecting sensitive national security documents, state secrets and documents reflecting a high-level deliberative process, and noted that it may prove helpful to use a neutral expert to independently decide disputes over such privileges, particularly where a respondent state appears to be invoking privilege illegitimately as a shield.