Hong Kong, 26 June 2018

Introductory remarks

Julian Lew QC (20 Essex Street, London; Head, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London; Member of the ICC International Court of Arbitration; Council Member of the ICC Institute of World Business Law) opened the training by providing an overview of the day, as well as numerous practical points on efficient oral advocacy in the context of international arbitration. He reminded the audience of the objective of advocacy, i.e. generally a presentation of the case and issues to the arbitral tribunal. In so doing, counsel must ask themselves what the arbitral tribunal exactly needs to know, and the answer changes according to the individual’s role in the arbitration.

From the perspective of counsel, the question to ask would be:

What does my client want?

This could range from winning the case, to minimizing losses, obtaining declarations or contract performance, to name a few.

From the perspective of an arbitral tribunal, however, the question turns on a solid understanding of the case crafted by the counsel. An arbitral tribunal’s objective should be to understand the key issues of the case, relief sought, and applicable legal rules, all with the end goal of deciding issues and granting appropriate remedies.

Overall, the most important thing to remember in advocacy (whether written or oral) is that lawyers are not the only advocates in any given case. The parties, corporate managers, and experts, too, are advocates with the ultimate goal of telling the arbitral tribunal a story. The clearer (and simpler) the picture is, the better.

Oral versus written advocacy: Counsel and tribunal perspectives

Professor Lew started this panel by describing advocacy as the ‘skill of persuasion’. In his presentation, he focused on defining and describing the various aspects of oral advocacy, particularly the opening and closing statements.

Professor Lew emphasized that the purpose of oral advocacy is to bring written advocacy to life. For example, the parties’ submissions may give the arbitral tribunal a superficial idea of the case. As such, the opening statement is vital. It affects the outcome of the case, considering that it supplements the arbitrator’s knowledge of the facts and the parties’ arguments. The oral pleading is also an opportunity to answer the arbitral tribunal’s questions.

According to Philip Yang (Independent Arbitrator, China), it is crucial to be as precise as possible in both oral and written advocacy. This means including specific and pinpointed references to any case law and legislation used in submissions, references to materials distributed during the case management conferences, and even information on upcoming conferences.

The panel also explored the differences between inquisitorial and adversarial advocacy. They acknowledged both styles as effective; however, the inquisitorial style is more informal and more common in commercial arbitration, and is used most frequently used in maritime law arbitrations.

Regardless of the style of advocacy, the message of Professor Lew and Professor Yang is clear. The role of counsel is to ‘tell a story’ through oral and written advocacy. Oral advocacy brings the written submissions to life and clarifies the arbitral tribunal’s understanding of a given case. In their words, it is best to ‘keep it simple and clear, and to help the arbitral tribunal’.

Oral advocacy, party autonomy, and determination of the facts: The opening statement

Marnix Leijten (Partner, De Brauw Blackstone Westbroek N.V., Amsterdam, Vice-President of ICC International Court of Arbitration) opened this panel referring to the opening statement as the ‘bridge between a big stack of papers and live people who will testify later. It has to bridge the writing and the papers in the hearing’.

Because the arbitral tribunal needs to process and simplify complex information in order to decide, the goal of the opening statement should be to set a roadmap for oral pleadings and to simplify complex matters. He, too, recommended keeping the opening statement simple.

Mr Leijten and Yu-Jin Tay (Partner, Mayer Brown JSM, Singapore) also discussed the psychological aspects of decision-making, and strategic and practical choices which can assist counsel in delivering a strong closing statement. The most important example is the seven-minute rule. If counsel speaks longer than seven minutes, they risk losing the arbitral tribunal’s attention. In addition, the case should be logically compelling, pointing to a clear conclusion.

Similarly to Professor Lew and Professor Yang, the panel pondered the question of ‘What makes a good opening statement?’. According to Leijten and Tay, a good opening statement possesses all the following traits:

  • It should be compelling, providing a roadmap of the arguments to come;
  • It includes the strongest points at the beginning and end, with the weakest points sandwiched in between;
  • It addresses weak points directly, without shying away from nuance and ambiguity; and
  • It maintains consistency with precedent, practice, and policy.

Essentially, the key to a strong opening statement is to reduce the case to its simplest dimensions, and to focus on what the arbitral tribunal must absolutely know. This part of the oral pleading is the ‘elevator pitch for the rest of the arguments’.

The panel also discussed the effective use of visual tools (if at all). Their advice was to only use PowerPoint presentations to support the opening statement. Rather than relying on the PowerPoint for each point, it is best to only include quotes from important documents, core graphs, and anything visual.

The PowerPoint presentation should not act as the main feature of the opening statement, nor should it distract the arbitral tribunal. Further, although PowerPoint presentations can be effective visual tools in complex cases, Yu-Jin Tay warned that they could give away counsel’s notes, strategies or key exhibits. As such, counsel should try ‘not to give away the drama’.

Focus on cross-examination

Jane Davies Evans (Barrister, 3 Verulam Buildings, London) focused on how to prepare for cross-examination, effective styles of cross examination, and the roles of lay and expert witnesses. She acknowledged that there are a plethora of effective approaches for preparing cross-examination. But the examiner should always keep in mind the following question:

What do I want to achieve by the end of this examination?

Jane Davies Evans suggests that while preparing, the examiner should thoroughly review the case’s theory, as well as the facts that the experts rely upon. Further, it is useful to research the expert’s background and try to find any weaknesses that could undermine the expert’s credibility. The examiner should know of the expert’s qualifications, social media profiles, publications and reports, as well as previous cases in which they have acted as experts. In preparing for cross-examination, counsel should develop several question paths which will lead to one credible answer from the expert.

She recommends that the examiner begins the cross-examination by asking easy, non-controversial questions. By the time the witness has agreed to a few questions, psychological studies show that they will be ‘lulled into a sense of agreement’. The delivery should however largely depend on the witness, as individuals may have different responses to aggressive or softer forms of questioning.

Jane Davies Evans then referred to the cross-examination mock case. With this exercise, attendees focused on advocacy problems that permeate civil and common law jurisdictions and reflected upon the important tensions that could arise given the differing role of the adjudicator in these jurisdictions.

Oral advocacy at the main hearing

Catherine Mun (Partner, Li & Partners, Hong Kong) tackled oral advocacy at the main hearing and, as previous speakers, acknowledged that the crucial task of counsel is to tell a logical and compelling story to the arbitral tribunal. Her focus was on orally pleading the case through witness examination, from both perspectives of arbitral tribunal and counsel.

Again, the key was to be as simple as possible in oral pleadings, so as to use the pleading as an opportunity to answer the arbitral tribunal’s questions, and also to clarify complex arguments and facts in a given case.

Although the opening statement is an important part of oral advocacy, Catherine Mun also discussed the closing statement and post-hearing briefs, as well as a new emphasis on speed in rendering final awards. This distinguishes arbitration from litigation, as counsel and arbitral tribunals generally have much less time in arbitral proceedings to make their arguments and gain a solid understanding of the case.

Closing remarks

Professor Julian Lew closed the training, emphasizing the importance of oral advocacy as a necessary tool to clarify complexities in arbitral proceedings. In particular, he reminded attendees of the importance of organization and clarity in oral pleadings. The bottom line:

Keep it simple.