Young ICCA Skills Training Workshop: Skeleton Arguments and Hearing Preparation
Post Event Report
On 5 December 2016, Young ICCA and the DIFC-LCIA Arbitration Centre, with the support of White & Case LLP and Al Tamimi Company, held a morning skills workshop in Dubai, UAE. The workshop was hosted by the DIFC-LCIA Arbitration Centre and attended by a multinational crowd of over 45 participants.
The topic of the workshop was ‘Skeleton Arguments and Hearing Preparation’. The workshop was facilitated by seven speakers, over two panels moderated by Ms. Antonia Birt, Young ICCA Event Coordinator, and Ms. Samantha Lord Hill, Associate at Freshfields Bruckhaus Deringer (Dubai).
PANEL 1 – DRAFTING PERSUASIVE SKELETON ARGUMENTS
The first speaker of the day was Ms. Soraya Corm-Bakhos, Counsel at DWF (Middle East). Soraya explained that skeleton arguments are the bridge between the written phase and the oral phase of arbitration proceedings; they are essentially an outline of the case submitted in advance of a hearing to help the tribunal focus on key issues. Soraya further explained that, although they are optional, skeleton arguments are commonly used in large-scale arbitrations. Skeleton arguments are typically structured as follows: (i) a brief introduction; (ii) summary of the issues in dispute; (iii) summary of key facts; (iv) relevant legal provisions; (v) legal submissions or application of the law to the facts; and (vi) a brief conclusion. Skeleton arguments are to be persuasive and have a logical flow. Soraya concluded her presentation by quoting an English court judgment stating: “skeleton argument should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read out in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictations to the [tribunal] and pointless note-taking by the [tribunal].”
Ms. Nayiri Boghossian, Partner Al Owais, then presented on ‘Tips and tricks for drafting and structuring skeleton arguments’. Drawing from her wealth of international arbitration experience, Nayiri presented seven practical tips for drafting skeleton arguments: (i) skeleton arguments are optional and should therefore only be used where needed; (ii) skeleton arguments are meant to be a summary of the case, and not a repetition of the parties’ pleadings; (iii) presentation matters – pages and paragraphs shall be numbered; headings and sub-headings shall be used; sufficient space shall be allowed for arbitrators to take notes; no footnotes; no grammar / spelling / formatting errors; (iv) skeleton arguments shall be submitted to the tribunal at least a few days in advance of the hearing; (v) skeleton arguments shall be persuasive; (vi) skeleton arguments are meant as tools to help the tribunal focus on what matters at the hearing, hence counsel should refrain from the temptation to overload their submissions with unnecessary detail; and (vii) as a general rule, skeleton arguments are to be user-friendly and easy to read.
Thereafter, Mr. Tim Killen, a barrister at 2 Temple Gardens (London) and a university lecturer, presented on ‘How barristers can assist in the preparation of skeleton arguments’. Tim considers that international arbitration counsel can benefit from instructing a barrister for the following reasons: (i) barristers are experienced in oral (and written) advocacy; (ii) barristers can bring a “fresh” outsider view on the case; (iii) barristers are removed from the client and the witnesses; and (iv) barristers bring “extra manpower.” Tim then addressed how he would approach drafting skeleton arguments.
Mr. Mohamed El Ghatit, Director and Registrar of the DIFC-LCIA Arbitration Centre, spoke last on ‘How the identity of your Tribunal members affects a counsel’s style of pleading his client’s case’. Mohamed delighted the audience with an interactive presentation punctuated with amusing anecdotes drawn from his significant experience in international arbitration. Mohamed stressed the importance of knowing and researching the arbitrators appointed, and of tailoring skeleton arguments (but also hearing submissions generally) to the arbitrators’ backgrounds and preferences. Mohamed discussed some of the factors that can shape an arbitrator’s style: civil law v. common law; lawyer v. engineer; female v. male; well-prepared v. less well-prepared etc.
PANEL 2 – THE KEY TO EFFICIENT HEARING PREPARATION
The first speaker of the second panel, Ms. Sarah Malik, Of Counsel at Taylor Wessing (Dubai), presented on the ‘Dos and don’ts of assisting the Tribunal before and during a hearing’. Sarah, an eloquent speaker and experienced lawyer, provided practical guidance based on real-life situations regarding the various tools that can be used in preparation for and at a hearing, including:
- Skeleton argument – structure matters.
- Timeline / case chronology – setting out the date and description of key events supported by cross-references to hearing bundle.
- Dramatis personae – listing key players with their position and employment dates.
- Hearing bundle – to be classified in categories and organizsed in chronological order where helpful. In large arbitrations with a large volume of documents, it is advisable to also prepare a core bundle with the essential exhibits.
- Opening submission– provides an overview of party’s position. Opening submissions may be written or oral; use of PowerPoint is a personal choice.
- Closing submission– ties everything together and refers to the hearing transcript; not a repetition of earlier submissions.
- Quantum models– to be prepared by the quantum experts; however, counsel need to fully understand and be able to explain to the tribunal / cross-examine the opposing expert on such models.
Mr. Matei Purice, Associate at Freshfields Bruckhaus Deringer (Dubai) then presented on ‘Dealing with witnesses and experts’. Matei’s presentation provided useful guidance on how to best prepare witnesses and experts for a hearing. As a preliminary step, Matei recommended sitting down with witnesses / experts and walking them through the hearing process. Matei also discussed the pros and cons of holding a mock cross-examination in advance of the hearing. Finally, Matei went through the top tips to give to witnesses and experts before a hearing.
Ms. Anna Wren, Senior Associate at Herbert Smith Freehills (Dubai), last presented on ‘Other practical dos and don’ts in the organisation and logistics of hearing preparation’, covering some important yet often overlooked aspects of international arbitration hearings, such as: hearing venue; hearing schedule; translation and transcription services; travel arrangements; catering services etc. For example, Anna explained that a good hearing venue shall be equipped with: high-speed internet; printing facilities; break-out rooms for each party as well as the tribunal; shelves for the hearing bundles; stationery supplies; USB sticks to exchange documents rapidly etc. Anna also recommended the use of a ‘hearing checklist’ to make sure no detail is being overlooked, as well as the preparation of ‘travel memos’ for the team and the tribunal. Regarding the hearing schedule, Anna recommended discussing it with the client and allowing for sufficient breaks in the morning, around lunchtime and in the afternoon. Efficient hearing preparation can help reduce any stress and tension on the actual hearing day.
Each panel ended with a dynamic and insightful Q&A session.
Following the workshop, all speakers and participants were hosted at a lunch at DIFC Gate Village. The lunch provided a further opportunity for discussions and interactions amongst speakers and participants.
The workshop was a great success with 58 people registering and 48 attending.
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