SPONSORED BY:


Supported by:


Steering Committee:

Oleksandr Frolov, CMS Cameron McKenna Nabarro Olswang, Kyiv
Vasylyna Odnorih, Vasil Kisil & Partners, Kyiv
Oksana Varakina, EQUITY, Kyiv

Kindly guided by Young ICCA Co-Chair, Panagiotis Chalkias (White & Case, Geneva).

 

Advocacy in International Arbitration, Kyiv, Ukraine

By Daryna Ivanyuta and Maksym Zeltser of Yaroslav Mudryi National Law University

On 11 October 2019, Young ICCA held a skills training workshop on advocacy in international arbitration in Kyiv, Ukraine. The workshop’s Steering Committee comprised of Oksana Varakina (EQUITY, Kyiv), Oleksandr Frolov (CMS Cameron McKenna Nabarro Olswang, Kyiv) and Vasylyna Odnorih (Vasil Kisil & Partners, Kyiv) and was guided by Young ICCA Co-Chair, Panagiotis Chalkias (White & Case, Geneva). EQUITY, Kinstellar and Jurvneshservice generously sponsored the event and UkraineNow provided information support. The workshop, which was aimed at practical aspects of legal writing and oral advocacy, attracted a significant number of international arbitration practitioners and students from Ukraine and abroad. During the course of the event, eminent speakers shared their knowledge and gave useful insights from their own experience.

The day started with a keynote speech from Professor Loukas Mistelis of the Queen Mary University of London, who set out some general guidelines on advocacy in international arbitration. Mr. Mistelis spoke about the specifics of arbitration hearings and broke down basic rules both for an opening statement and main part of the hearing, setting a high bar for all advocates to strive for.

The first panel discussion of the workshop was devoted to legal writing in international arbitration and consisted of Peter Archer of Herbert Smith Freehills, Romain Zamour of Debevoise & Plimpton and Nhu-Hoang Tran Thang of Lalive, while Volkovetskyi Danylo of Kinstellar moderated the discussion. The panelists discussed the importance of being attentive to details when it comes to legal drafting and identified core strategies for excellent written submissions.

Peter Archer went through the timeline of an arbitration and emphasized key drafting points that should be taken into account at every stage of the process.

Next, Romain Zamour addressed legal writing in international arbitration, sharing general advice and practical recommendations. He spoke about the need to adapt to the tribunal to persuade it, shared his views on how to identify the core of one’s case and structure a brief, and provided do’s and don’ts of drafting.

Nhu-Hoang Tran Thang, the last speaker of the panel, talked about tips and tricks for putting together a brief. Her presentation focused on the significance of the groundwork that has to be done before drafting any document and included her recommendations for efficient legal research. She later gave practical advice on electronic and hard copy filings, the use of specifically tailored technology in that process, and on how to be most efficient and effective while working on such type of tasks within a team.

The second session of the workshop included a practical exercise and tackled how to draft a request for arbitration and an answer to the request based on a mock case under the ICC Rules.

First, Courtney Furner of Lalive talked about the applicable procedural framework, providing a detailed review of the relevant provisions in the applicable rules. Next, Leon Ioannou of Hughes Hubbard & Reed elaborated on a set of golden rules for counsel when drafting a request for arbitration and an answer to the request:

1.      Know your case theory and structure your case narrative based on it.
2.      Collect the evidence and identify the most important legal provisions you will rely your case upon.
3.      Prepare a position on every issue, as if you are drafting your statement of claim.
4.      When it comes to drafting the submissions, the principle of ‘less is more’ is a key to success.

Finally, Cherine Foty of Jones Day spoke about the answer to the request and considerations that a respondent should keep in mind when preparing an answer. Her presentation included a list of preliminary issues which the answer must address and considered the structured content of an answer. Cherine also discussed procedural issues, timing and the possibility of filing a counterclaim and a joinder. The panel was skillfully moderated by Salah Mattoo of Winston & Strawn and was followed by a Q&A session.

It should be noted here that after the workshop, interested participants were offered to take part in an optional practical exercise, which involves drafting a request for arbitration or an answer to the request based on a mock case and the speakers’ advice. A team of dedicated lawyers will review the drafts and will provide feedback.

The third and last panel of the workshop was dedicated to oral advocacy in international arbitration. The first speaker, Irina Tymczyszyn of Tymczyszyn Arbitration shared exciting stories of 20+ years of experience in the United States and Great Britain. She highlighted the differences in the pleading styles between civil and common law lawyers. She also advised each advocate to embrace his or her performance style while being able to adapt it to the specific circumstances of each case. Irina suggested that non-native speakers should not see their language capabilities as a limitation on their career in arbitration.

Vivek Kapoor of Stephenson Harwood focused his message to the audience on the basic yet crucial elements of a successful oral presentation, which included practical daily recommendations on the preparation and the comportment during the hearing.

Last but not least, Duncan Speller of WilmerHale spoke about the purpose of oral advocacy. He began his speech by quoting former U.S. Ambassador to the United Nations, Samantha Power: “All advocacy is, at its core, an exercise in empathy”. He recommended perceiving oral advocacy as an interactive process and an opportunity to persuade and engage. Mr. Speller noted that the main goal of the advocate is to focus the tribunal’s attention on key documents and pieces of evidence, and possibly highlight weaknesses in the opponent’s case. He also touched upon the best ways to answer a tribunal’s questions and emphasized the necessity of allocating oral advocacy roles among a team of counsels, especially when it comes to cases where important legal issues are scattered across jurisdictions. He finished his presentation by showing a sample respondent’s opening statement based on the mock case distributed prior to the workshop. During a lively Q&A session moderated by Kateryna Tsirat of Jurvneshservice, the participants further discussed personal struggles with the path to becoming a better advocate.

Between the sessions, the participants and speakers actively engaged in conversations during coffee breaks and lunch. The workshop ended on a high note with the closing remarks from the organizers and was followed by a cocktail reception in the Pinchuk Art Centre, where the guests also discussed professional and academic careers in international arbitration.

Overall, the workshop turned out to be a wonderful occasion that brought together a vibrant community of experienced practitioners, young and aspiring lawyers as well as students. All the participants regarded the event as extremely informative, insightful and motivating.

The following day, some of the participants and speakers attended a guided tour in the Kyiv city center which they very much enjoyed.



Want to receive event updates? Become a Young ICCA member and receive email updates on all Young ICCA events and workshops.