Young ICCA Webinars: Advocacy for Young Practitioners - Tips on Preparation and Delivery of Opening and Closing Arguments in International Arbitration
This webinar was organised in collaboration with the Thailand Arbitration Center (THAC).
Post Event Report
by Dario Simone Palmiotti (Intern, THAC) and Han Wool Kim (Intern, Mayer Brown)
On 26th March 2021, Young ICCA held a webinar titled “Advocacy for Young Practitioners: Tips on Preparation and Delivery of Opening and Closing Arguments in International Arbitration” in collaboration with the Thailand Arbitration Centre (“THAC”). Over 275 participants from around the world registered for this event. Welcome and opening remarks by Dr. Pasit Asawawattanaporn, THAC’s Managing Director, were followed by an overview of the structure and activities of Young ICCA and THAC by Ms. Saemee Kim, Young ICCA Events Coordinator.
The first part of the webinar consisted of a presentation of tips on effective advocacy skills by experienced international arbitration specialists. Ms. Saemee Kim moderated the first session, in which Ms. Judith Gill QC (Arbitrator, Twenty Essex Chambers), Mr. John Bang (Senior Partner, Peter & Kim) and Prof. George A. Bermann (Chief of Advisor, THAC International Advisory Board) kindly took part, offering participants timely and sage advice on how to be an effective advocate in international arbitration.
Tips on Written Advocacy – Ms Judith Gill QC
Ms. Gill provided tips on written advocacy from both the counsel’s and the arbitrators’ perspective. She mentioned six main tips in this regard:
- Think about the type and purpose of the submission: Ms. Gill stressed the importance of understanding the type of submission to make it more effective. She also advised to put yourself in the tribunal’s shoes and think of what would help the tribunal understand the case and eventually prefer your case over that of opposing counsel.
- Have a sound structure: Ms. Gill highlighted that it was important to have written submissions with a sound structure based on a logical sequence that the tribunal could follow. Paragraphs with appropriate headings and sub-headings for the tribunal to navigate and search through the written submission were essential.
- Think about your cause of action: Ms. Gill warned of the risk of getting caught up in “telling a story” when drafting a submission as it could push the legal requirements into the background. According to her, a better approach would be to think about what had to be proved to win the case, and then setting that out.
- Make it concise and enjoyable to read: Ms. Gill emphasized that tribunals prefer short and effective submissions. Although the ideal length would depend on the facts of each case, the style should be concise and with precise language. She shared some tips to make the tribunal enjoy reading the submission: avoid single line spaces and tiny font; use intelligible and consistent abbreviations; avoid hyperbole, overstatement, outrage, rudeness, sarcasm and personal attacks; and utilize hyperlinks and cross-references wherever possible.
- Address the difficult points: Ms. Gill stated that it was better to deal with the other side’s arguments and your own weak points rather than ignoring them. Otherwise, it will cast doubts that you do not have an answer for those points and the tribunal may treat your future submissions with scepticism.
- Keep in mind that your aim is to persuade: Ms. Gill emphasized that the final aim of advocacy is to persuade and that written advocacy needs to be studied in detail to make it effective, concise and persuasive.
Tips on Oral Advocacy – Mr John Bang
Mr. Bang furnished tips on oral advocacy at evidentiary hearings, with a particular focus on opening and closing arguments:
- Great oral advocacy requires good teamwork and preparation: Mr. Bang emphasized the importance of teamwork and highlighted that oral advocacy is not an intangible skill but a skill that can be gained by action, that is, by saying and doing.
- Think about the purpose of an opening statement: Mr. Bang advised that the purpose of an opening statement is not to inform the tribunal of the entire case but to give a clear roadmap of what the tribunal should be looking for at the hearing. As an opening statement is the first time to see the tribunal’s reaction to your arguments, you should take notes of that reaction and adapt accordingly.
- Keep in mind you have limited time: Mr. Bang reminded participants that oral advocacy is an exercise in prioritization, so one should focus on what is truly important without addressing every issue.
- Be reasonable: Mr. Bang suggested avoiding denying something that is crystal clear because it could affect your credibility with the tribunal. Further, you should be reasonable in your assertions.
- Think about how to supplement your oral advocacy at the hearing: Mr. Bang introduced different ways to support oral advocacy, such as power point presentations and hard-copy bundles, depending on the nature of the case and the aim of the opening statement. He shared an idea of having an “opening statement bundle”, a bundle containing only the documents you are referring to during the opening to capture the attention of the tribunal. Try to act as a guide for the tribunal through the documents and presenting the contents by having a conversation with them.
- Think about how you want the tribunal to follow your opening statement: Mr. Bang stated that the perception of the tribunal of the opening statement is influenced also by the way it is presented. Therefore, consider the kind of impact that opening statement will have on the tribunal and carefully plan how to present the opening statement.
- Closing statement: Mr. Bang explained that a good closing statement highlights documents and testimonies that are more favorable to your case and simultaneously addresses the issues the tribunal indicated were of more interest during the course of proceedings. He also shared some tips for the closing statement: have a day off between the last day of the witness examination and the day of the closing statement; and have a member of the team look at transcripts every day, highlighting the best testimony and addressing the questions posed by the tribunal to make sure that answers are in the closing.
Effective Advocacy from the Tribunal Perspective - Prof George A. Bermann
Prof. George A. Bermann shared his views about quality advocacy in arbitration:
- Preparation: It is important to have a cogent roadmap which consists of an indication of the propositions that need to be established to prevail. It should show the issues on which the claim depends, the connections between those issues and finally how they lead to a favorable result. After the roadmap, it is ideal to cite basic facts from the documents or testimonies, and then turn to your opponent’s case showing how it failed to establish its case. It is necessary to have a clear path of logical reasoning, coupled with factual support that leads the tribunal to the desired result.
- Delivery: When you are delivering what you have prepared, brevity and simplicity are desirable. The words that you deliver should be clear and precise and you should speak at a reasonable pace with clear diction. You should be sober, serious, not overly dramatic with ridicule, disapproval, or sarcasm. When your opponent is speaking, remain calm and serious. Credibility shall be paramount, above all, and to achieve that you should honestly believe in what you are saying and be proportioned. It can also be useful to make concessions, where necessary and acknowledge weaknesses. Finally, try to anticipate or dispel the tribunal’s concerns.
The second part of the webinar consisted of a presentation of opening arguments based on a mock case which was sent to registrants before the webinar. Ms. Wendy Lin (Partner, WongPartnership) represented the Claimant while Ms. Joanne Lau (Partner, Allen & Overy) represented the Respondent. At the end of the opening arguments, the arbitral tribunal composed of Ms. Gill and Mr. Bang gave some comments on both the presentations.
The third part of the webinar consisted of a Q&A session conducted by Mr. Rahul Donde (Young ICCA Global Events Director) including questions submitted by participants when they registered for the event and live questions from the audience.
The webinar closed with final remarks by Ms. Theominique D. Nottage (one of three Young ICCA Co-Chairs), who thanked panellists and participants for their attendance.
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