Young ICCA Skills Training Workshop: How to Effectively Use Evidence in International Arbitration Proceedings
Post Event Report
*Report by William Obree, Trainee Solicitor, White & Case
On 7 December 2017 Young ICCA welcomed attendees to a suitably snowy Moscow for a winter skills training workshop. With speakers from New York, Dubai and London supplementing local lawyers, and with both in-house and external counsel represented, the event offered a broad range of knowledge and experience across the field of international arbitration.
Attendees from a range of organisations, including international and local law firms, Moscow State University and the Arbitration Center at the Institute of Modern Arbitration, were treated to the insights of a doyen of international arbitration, Professor Alexander S. Komarov, the guest of honour speaker for the day. Professor Komarov is a member of the ICCA Governing Board and part of the Presidium of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation.
White & Case LLC sponsored and hosted the event in their Moscow office, kindly providing a spread of food and refreshments. The event was organised by Olga Hamama, principal associate at Freshfields Bruckhaus Deringer (Frankfurt) and White & Case’s own Tomas Vail and Oleg Todua, associates in the firm’s London and Moscow offices, respectively. Young ICCA Co-Chair and associate at LALIVE (Geneva), Nhu-Hoang Tran Thang generously offered guidance for the event. Tomas moderated the lively panels discussing how to effectively use evidence in both written and oral pleadings.
FIRST SESSION: EFFECTIVELY USING EVIDENCE IN WRITTEN SUBMISSIONS
Tomas kicked-started the discussion with a brief welcome before calling on Marianna Rybynok, counsel at Khrenov and Partners (Moscow), to address the topic of collecting and producing evidence in international arbitration proceedings.
Marianna began by posing the question – what is written evidence? Whilst the answer may seem obvious, clients are often unaware that written evidence covers not only hard copy documents and correspondence, but also emails, audio records and WhatsApp messages. The IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules”) contain a broad definition of “Document” – “a writing, communication, picture, drawing, program or date of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means”. An arbitral tribunal has the power to determine which evidence is admitted. It is important to ensure that clients know their disclosure obligations, particularly when the standard being applied by the arbitral tribunal differs from that of their jurisdiction. Article 9 of the IBA Rules covers the admissibility of evidence in arbitral proceedings and provides that evidence may not be admissible if it is privileged, confidential, too burdensome to produce, lost or damaged. The loss of or damage to documents must be supported by strong evidence of the circumstances of said loss or damage. Clients should also be aware of the risk of criminal liability arising from tampering with evidence.
Evgenia Loewe, head of foreign litigation at AO Renova Group (Moscow), then provided an insight into the collection and production of evidence from an in-house perspective. Evgenia advocated for active involvement of in-house counsel in fact-finding exercises as they are the best placed to assist in the development of the case strategy and in setting the parameters of the dispute. It is important to sit down with decision makers involved in the facts of the dispute early and test their recollection against the documentary evidence. Suspending policies for the deletion of documents and ensuring that managers and employees are aware of the dispute is also vital to ensure effective document retention. Engaging the IT department and external document collection specialists allows any problems with documents to be identified and resolved early on in the dispute resolution process.
Tigran Ter-Martirosyan, vice president at valuation and corporate finance advisor Duff & Phelps (London), turned to the matter of using expert opinion outside of a tribunal’s area of knowledge. There is a myriad of potential experts that could be required for an arbitration: law experts; hand writing experts; construction and engineering experts; and market experts, to name a few. Tigran went on to outline the way to approach written evidence – for a start, advocates should always ask themselves:
(i) When? – contemporary documents bear more value than those prepared after the initiation of proceedings;
(ii) Who? – the evidence of a distant third party may carry more weight than an individual too close to one of the parties; and
(iii) Why? – a document prepared in the normal course of business, for example during the course of an Initial Public Offering, will likely be more convincing than one prepared specifically for the arbitration proceedings.
Professor Komarov provided his comments, suggesting that, whilst the speakers had discussed best practice in international arbitration, the reality of parties’ conduct in international arbitration is often very different. In terms of document production it is important for parties to stick to the agreed schedule as any request for extensions/further evidence may typically confer an advantage to the requesting party when such request is granted.
Evgenia advocated the use of innovative approaches to document production by external IT consultants to help speed up the process. Professor Komarov acknowledged this, but highlighted that tribunals are often unable to fully grasp how to use the technology.
Evgenia then flagged the difficulties that sometimes arise in finding experts in specific industries in certain geographic locations. Electricity, for example, is a government regulated industry, so that it is often tricky to find electricity experts in CIS-related disputes. Professor Komarov’s experience as an arbitrator is that experts are often biased towards the appointing party, so in many instances the only solution is for a tribunal to appoint a neutral expert. It is particularly frustrating for a tribunal when experts do not engage with each other’s arguments through their reports.
Tomas wrapped-up the session with some food for thought as to the future of arbitration, where perhaps a single polymath could fulfil the roles of multiple experts – the panel concluded that this polymath should of course be sitting on the tribunal as an arbitrator.
SECOND SESSION: EFFECTIVELY USING EVIDENCE IN HEARINGS
Following a 15 minute break in which the attendees had the opportunity to network with the speakers over tea and coffee, a fresh panel was convened on the issue of the effective use of evidence in hearings.
Diora Ziyaeva, senior managing associate at Dentons (New York), addressed the use of evidence in opening statements. Diora recognised that the purpose of the opening statement is not to introduce documents, but to convince a tribunal of the strengths of one’s case and of the weaknesses of the other side’s position. Highlighting certain documentary evidence in the opening statement can help serve this purpose. It allows an advocate to show a tribunal that they are in control and knowledgeable of the outcome determinative documents. It also provides the advocate with an opportunity to address any harmful evidence which goes to the heart of a case early on in the hearing. For example, in a dispute where the other side had accused her client of forging a key document, the strategy of engaging with the issue by showing how the document was not forged through a powerpoint presentation in the opening statement proved extremely effective.
The discussion then turned to senior associate Slava Kiryushin of CMS (Dubai), who provided an insight into his experiences of cross-examination. A key point of cross-examination is to undermine the witnesses of the other side. Part of cross-examination is to make the witnesses feel uncomfortable by attacking inconsistencies in their statement, weaknesses in their fact recollection and their credibility. In addition to providing a few colourful anecdotes from his experience, Slava provided a number of dos & don’ts for the cross-examination of a fact witness:
Do: (i) use leading questions; (ii) direct your questions in a logical order; (iii) assert your case; (iv) control your witness; and (v) remember that you are addressing a tribunal as well as the witness.
Don’t: (i) ask open questions; (ii) waste time with unnecessary questions; (iii) make comments instead of formulating questions; (iv) stop the witness from speaking; (v) attack the witness or make things personal; and (vi) lose control of yourself or the witness.
Evgeniya Rubinina, senior associate at Freshfields Bruckhaus Deringer (London), spoke on the cross-examination of expert witnesses. When questioning an expert, it is best to avoid engaging them in their field of expertise as they can resort to technical jargon-heavy answers that make them appear knowledgeable and are difficult for a non-expert to challenge. The best approach is to undermine the credibility of the expert and to question the factual premises of the expert’s conclusions. To achieve this, one can suggest that the experts’ conclusions are outside the field of their expertise, point to something they have written that contradicts their position and ascertain whether they have been influenced by the party having appointed them. Documents are particularly useful to this end. There are four types of documents that could be utilised in a cross-examination of an expert:
(i) All documents referred to in the expert report – large 200-page reports have often been prepared by teams so experts can often be caught out by the detail. It is important to request originals of excel documents, they sometimes contain hidden information (such as counsel’s comments!);
(ii) The documents received by the expert witness – some of the documents might be in a language the expert does not know;
(iii) Key documents that the expert should be aware of, but did not look at; and
(iv) All documents authored by the expert.
The discussion then returned to Diora for closing statements. The purpose of the closing statement is to bring one’s case together. Strategy should come first, with documentary evidence being limited to the key take away points. An advocate should focus on what will help his/her case, for example if a fact witness was exposed in cross-examination, include an excerpt from the transcript. Remember that less is more, as an advocate is in danger of damaging its case if there is a lack of focus.
Professor Komarov considered the speaker’s views to be a perfect picture of what usually goes on in a hearing. Parties are usually eager to provide a great number of witnesses, but they should exercise caution as a tribunal may opt for a form of witness conferencing to save time. The Professor highlighted the differences in jurisdictional approaches to witnesses coaching, noting that it is often obvious to a tribunal when witnesses have been coached. This also transpires from witness statements written in very legalistic language.
The audience and panelists then engaged in an interactive discussion. Notably, the panelists were asked whether they have any preference for synchronised or sequential translations when a witness is being cross-examined with the use of an interpreter? Simultaneous translation is the preference of counsel, but it is contingent on the hearing venue offering the required facilities. Sequential translation is frustrating as it gives the witness time to prepare answers to questions. For Professor Komarov, as an arbitrator, the most important thing is the quality of the interpreters themselves. If the parties consider that a mistake was made in the translation, his preference is for it to be corrected straight away.
This approach depends on the tribunal and it can often distract the witness if there are multiple challenges. It is, however, important for the parties to ensure the cross-examination is recorded so that the translations in the transcript can be challenged afterwards.
Drawing an extremely informative afternoon to a close, Tomas concluded with two key (and inter-related) points from the session – (i) “less is more” and (ii) focus on what is important.
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