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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
To a young lawyer growing up in the field of arbitration in London in the mid-1990s, John Beechey was already a giant of our arena. That I was a callow novice at Freshfields and he the head of a powerful competing practice at Clifford Chance did not stop him from taking the time to patiently answer my questions about our field, as he did for many others. Mixing guidance and camaraderie that extended beyond any individual law firm, he has in the same way been a leader to many over the years. Never more so than during his leadership of the ICC International Court of Arbitration, which has been widely and rightly recognised as a great success. It is therefore an honour to contribute in a small way to this volume of deserved tributes and, in doing so, I have asked myself a question I am sure John has asked himself more regularly than most in our field: how can we make our process better?
There are many answers to this question. Let me give but one, which I believe is urgent. For our process is increasingly mired in a prolixity that seems to know no natural bounds. My answer is to commend the more frequent use of page limits in international arbitration. In explaining myself, as you will understand, it is incumbent upon me to keep this short!
Today we find ourselves in an arbitration world awash with redundancy and repetition. Early written submissions that accompany the constitution of the arbitral tribunal, are followed by two rounds of full written submissions, which in turn lead to an oral hearing, which is once again followed by one or two rounds of post-hearing briefs. And each of these written submissions can be - and often is - hundreds of pages in length. As such they often confuse rather than clarify the key issues in dispute. They often lead counsel to lose the attention of the tribunal, and the tribunal to lose sight of the key points in dispute. They rarely have the effect of shortening the oral hearings (i.e. they do not lead [Page302:] to efficiencies elsewhere), but rather lengthen them. They represent a perfect example of our process taking on board the excesses of all the legal traditions from which it draws.
Let me explain this last point further. There are some jurisdictions where lengthier written submissions are accommodated because oral hearings tend to be kept to a minimum. There are other jurisdictions where longer oral hearings are prioritised over written submissions, which tend to be kept to a short 'skeleton' form. But international arbitration today appears to be burdened by an excessive approach to both the written and the oral. Zealous representation is thus translating into lengthy briefs and lengthy hearings in a 'make work' project that goes on and on. From the perspective of a client interested in speed and cost efficiency, this 'scorched earth' approach at every stage might be described as the worst of both worlds.
So as our submissions get longer and longer, and as it becomes increasingly difficult for arbitral tribunals to stay on top of the work product of large, often junior legal teams, perhaps it is time to search for a solution. Perhaps it is even time to search for lessons from other fora, which we have got into the habit of lecturing about what they can learn from the wonderful world of arbitration. For when we do so look, there are simple lessons to be learned.
A survey of a handful of jurisdictions suggests that the imposition of page limits on written briefs is not unprecedented, particularly in the common law world.
As English litigators will tell us, English courts regularly impose page limits, for example on skeleton written submissions before the Court of Appeal. The English Civil Procedure Rules require that:2
A skeleton argument must-
both define and confine the areas of controversy;
not include extensive quotations from documents or authorities.
They further limit excessive citations of legal authorities:
If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.
In imposing a 25-page length limit, the Rules accompany this prescription with a type font and line spacing specification that deprives the ingenious of a back-door solution.3
An English judge's main weapon against written submissions that breach these rules is to disallow the costs of their preparation. But other options are also available. The court can reject and order a less prolix skeleton, and even 'name and shame' the offending counsel in its judgment.
In the recent case of Robert Tchenguiz v. Director of the Serious Fraud Office, the court held that the appellant would not be able to recover the costs of his oversized written submissions, even were his appeal to be successful.4 The court noted that the appellant's initial skeleton argument was 'prolix, running to 47 pages' and that the appellant 'now seeks to serve a supplementary skeleton argument 34 pages long, accompanied by an appendix which is 15 pages long'.5 In addition to prohibiting the appellant from recovering its costs, the court also restricted the appellant to relying upon only a handful of paragraphs in the supplementary skeleton argument, and casting aside the rest.
In Standard Bank v. Via Mat International,6 Lord Justices Moore-Bick and Aikens criticised the length of the appellant's skeleton argument and supplementary skeleton argument, which were 96 pages in all. Although the appeal was allowed this is what they said:7
It is important that both practitioners and their clients understand that skeleton arguments are not intended to serve as vehicles for extended advocacy and that in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document which seeks to develop every point which the advocate would wish to make in oral argument.
This prolixity only adds unnecessary costs; it does nothing to clarify and simplify the issues or to shorten proceedings, which aims should be the objectives of both pleadings and written submissions.
Judge Aikens went on to recount the sanction imposed on an overzealous litigant in the 16th century case of Mylward v. Weldon:8
it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister) produced a pleading (a replication, ie. reply) of 'six score sheets of paper' which the Lord Keeper deemed could have been 'well contrived' in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered: '… that the Warden of the Fleet shall take the said Richard Mylward … and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication … and put the said Richard's head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet …'
It is a tantalising image indeed, and there are one or two arbitration counsel who one might - in an unworthy moment - imagine being paraded around the corridors of the IDRC in London with their 200-page briefs festooned around their necks.
Returning to reality and the present day, the English courts are not alone in imposing page limits. In the United States, a brief on the merits before the Supreme Court is limited to 60 pages, on smaller (8½ x 11-inch) paper, with double spacing. At the appellate level, the Federal Rules of Appellate Procedure provide that 'a principal brief may not exceed 30 pages (or 14,000 words), or a reply brief 15 pages (or 7,000 words)'. At the trial court level, the United States District Court for the Western District of New York, Local Rules of Civil Procedure, Rule 7, provides a typical example of the constraints within which litigators must work. Memoranda in support of or in opposition to any motion cannot exceed 25 pages, and reply memoranda cannot exceed 10 pages. A party seeking to exceed the page limit must make an application at least seven days before the date on which the memorandum must be filed. In the Southern District of New York, there are no blanket limitations on written submissions; instead, each judge prescribes his or her own rules. By way of example, the Hon. William H. Pauley III sets the rule (firmly, I'm told) at 25 pages for memoranda of law and 10 pages for replies, adding ominously that 'footnotes are discouraged'.
For a clear exposition of the rationale for such limits, we need look no further than the Seventh Circuit and the words of Judge Posner. In the case of Fleming v. County of Kane, State of Illinois,9 and echoing the words of Aikens LJ, Posner reveals the logic and, unsurprisingly, he does so briefly. Denying an attorney's motion for leave to file an oversized brief without an adequate demonstration of the complexity of issues that would justify the request, he explained:
Page limitations are important, not merely to regulate the Court's workload, … but also to encourage litigants to hone their arguments … The fifty-page limit induces the advocate to write tight prose, which helps his client's cause. … [L]itigants frequently assert the necessity of additional pages to represent their clients adequately. Overly long briefs, however, may actually hurt a party's case, making it far more likely that meritorious arguments will be lost amid the mass of detail.
In this way, page limits are now seen as part and parcel of due process in various national courts. Does international arbitration really deserve to be different? I say no, and obviously so.
Only one possible, serious counter-argument comes to mind: that the imposition of page limits constitutes a due process violation by depriving a party of a full opportunity to be heard. But surely this calls for a simple response: parties are entitled to a reasonable, not an unlimited, opportunity to be heard. In the same way as tribunals would not accept an unlimited time estimate for an oral hearing, why should [Page305:] parties expect unlimited accommodation of their written submissions? And while there are some cases that may, due to the nature of the issues in dispute, exceptionally call for lengthy written submissions, individual briefs of many hundreds of pages in length are surely the written equivalent of four-week hearings - something that in most cases should be a thing of the past.
Page limits are already imposed as a matter of routine for post-hearing briefs. Is there anything different in principle in using the same procedural technique before a hearing? For the sake of our process, my answer to this question is a simple 'no'. For in a world of legal teams of growing size and diminishing seniority, there is every prospect of the problem getting worse unless we make a determined effort now to help it get better.
Queen's Counsel; founding partner of Three Crowns LLP in London. The author would like to acknowledge the contribution made to this essay by Ryan Mellske, an associate in Three Crowns' Washington D.C. office.
Practice Direction 52A supplementing the Civil Procedure Rules, § 5.1.
Practice Direction 52C, § 31.
Robert Tchenguiz v. Director of the Serious Fraud Office  EWCA Civ 1333, § 7.
Ibid, § 6.
Standard Bank Plc v. Via Mat International Ltd  EWCA Civ 490.
Ibid, § 27.
Ibid, § 30.
855 F.2d 496 (1988).