ICCA Skills Training Workshop: The Basics of International Arbitration
Post Event Report
by Ms. Tadiwanashe Hove, Middlesex University
On 13 November 2019, Young ICCA held a Skills Training Workshop on the Basics of International Arbitration in Port Louis, Mauritius. The Workshop focused on two topics: “Written advocacy in international arbitration” and “Public policy as a ground for setting aside international arbitration awards”.
Ms. Susan Kimani, Young ICCA Event’s Coordinator, gave the opening remarks. She welcomed the participants and gave an overview of Young ICCA and ICCA.
Mr. Anand Juddoo, Chartered Arbitrator, Certified Adjudicator & Accredited Mediator, moderated the first panel. He introduced the speakers and their topics, introduced the concept of international arbitration and explained the importance of written advocacy.
Ms. Khemila Narraidoo, Juristconsult Chambers, spoke on how to build a case in international arbitration, making practical comparisons with litigation. She began by explaining that in litigation, proceedings are commenced by one of the parties lodging a claim in court, whereas in arbitration, there would have to be an arbitration clause in a contract or an agreement that requires the parties to resolve their disputes through arbitration. She went on to explain the differences between institutional and ad hoc arbitration, with the former providing a set of rules and procedures that parties have to abide by and the latter allowing for the parties to decide on the rules and procedure – this element of flexibility not being available in litigation.
She drew further contrast between litigation and arbitration in terms of: (i) time and expense – in arbitration, parties have an idea of the costs they will incur and the time it will take to resolve the dispute while this remains quite uncertain in a court case; (ii) expertise of an arbitrator vs expertise of a judge – parties may chose an arbitrator with expertise in that area whereas in litigation, parties are not free to select which judge presides over their case and in some cases the judge may not particularly be an expert in the specific area of law and (iii) evidential rules – in arbitration, parties can agree that there will be some leniency when it comes to the application of some evidential rules while such leniency, even upon agreement with opposing counsel, is not permitted in litigation.
Mr. Ali Adamjee, Chambers of Sir Hamid Moollan QC, expounded on what a tribunal expects from a written memorial and provided advice on how to prepare a persuasive memorial for a tribunal. He emphasised the importance of proper structuring of submissions for effective persuasion and the ability to coherently articulate a written case. The ultimate test of effective advocacy, he added, is its actual impact on the tribunal which could often have a different legal and cultural background to that of counsel. With this in mind, it is important in international arbitration to know your tribunal and to tailor and formulate your written submissions. Other factors that are essential for a good memorial are: due regard to ethical considerations; courtesy to adversaries; avoiding prolixity; thorough research; and an objective and dispassionate assessment of the strengths and weaknesses of your own case.
Mr. Jacob Grierson, Asafo & Co, concluded with some further advice on written advocacy. He reiterated the importance of making the tribunal want to rule in one’s client’s favour and of maintaining credibility. He emphasized the significance of structure when putting together written submissions. In his view, the fact section is often the best place to argue one’s case, by telling the story in a way that puts the reader on one’s side before then explaining (in the argument section) how the reader can make the finding one wants. Other advice that he gave included staying concise and simple (but not too simple), using headings effectively, dealing with problems upfront, avoiding over-the-top language, referring to exhibits effectively and (above all) proof-reading carefully.
Ms. Jacqueline Lule, Bowmans, moderated the second panel. She introduced the speakers and gave a brief overview of public policy as a ground for setting aside international arbitration awards.
Mr. Mushtaq Namdarkhan, BLC Robert & Associates, spoke on international public policy in general, with a comparison of different countries (including the USA, India, Kenya and France). He spoke in particular about the concept of national interest and indicated the subtle differences that remain in defining public policy. Article V(2)(b) of the 1958 New York Convention states that recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that the recognition or enforcement of the award would be contrary to the public policy of that country. The intention of the framers of the New York Convention was to adopt a restrictive interpretation of the concept of public policy so that its purpose – to facilitate the enforcement of awards – would not be defeated. The concept is construed to mean the most basic notions of morality and justice. There has been jurisprudential recognition of the concept of international public policy in the USA, Switzerland, Spain and Hong Kong. While countries such as the USA have held that national interests are irrelevant in the interpretation of the concept of public policy, other countries such as India and Kenya, as well as the International Law Association, recognise that national interests could be relevant. In situations of illegality and corruption, there is heightened scrutiny of the arbitral award on grounds of public policy.
Mr. Steven Sengayen, President of the International Law Association (Mauritius Branch) and Managing Partner of Steven & Associates, focused on the application of the public policy exception in the UK context. He began by explaining how this ground for setting aside an award is rarely allowed and the invocation of public policy is typically seen as “a last defensive resort” in the UK’s courts due to the UK’s pro-arbitration stance. This ground for refusal of recognition or enforcement is laid out in S. 103(3) of the Arbitration Act 1996 and this is taken nearly verbatim from Article V(2)(b) of the New York Convention, which provides that a court may refuse recognition or enforcement of an award if it would be contrary to public policy. He also pointed out that no definition of public policy is provided.
The courts have accepted that public policy cannot be exhaustively defined and that it should be approached with extreme caution. The principles applied by the English courts when considering when to apply the public policy exception are: (i) the award has been obtained by perjury or fraud; (ii) the losing party is at risk of having to make payment in some other jurisdiction as well as in England; (iii) the award is tainted by illegality; (iv) the award was obtained in breach of the rules of natural justice and (v) the award affects the UK international obligations under a treaty or EU law.
Ms. Anne-Sophie Julienne, PwC Legal, concluded the second panel’s discussion by highlighting how international public policy has evolved under Mauritian law, with references to the judgement in State Trading Corporation v. Betamax Ltd. (2019 SCJ 154) – which is currently on appeal before the Judicial Committee of the Privy Council in London. The Supreme Court of Mauritius, in its judgement in this case ruled that the contract of affreightment was illegal as it was in breach of the provisions of the Public Procurement Act of Mauritius and that the public policy of Mauritius prohibits the recognition and enforcement of such an award. The Court accordingly set aside the award of the arbitral tribunal, which had been made in favour of Betamax.
The Workshop was followed by lunch, which gave participants an opportunity for further exchanges with the speakers and other participants.
The Workshop was kindly sponsored by BLC Robert & Associates and supported by AfricArb. It was organised by a Steering Committee composed of Ms. Tadiwanashe Hove, Middlesex University and Ms. Andrea Lapunzina Veronelli, Permanent Court of Arbitration and guided by Young ICCA Co-Chair, Ms. Theominique D. Nottage, Higgs & Johnson, Bahamas and Ms. Susan Kimani, Permanent Court of Arbitration & Mauritius International Arbitration Centre. About 40 young international arbitration practitioners and students attended the Workshop.
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