On 16 July 2021, Amanda Lees, Partner from KWM’s Singapore office, sat down with lawyers from KWM’s global network for a virtual fireside discussion of what makes a persuasive advocate from the perspective of an arbitral tribunal at the procedural phase of an arbitration. This article provides a summary of Amanda’s key tips and tricks for persuasive advocacy.
Good lawyers know the law. Great lawyers know the judge.
Far from encouraging an overly cosy relationship with the bench (and threatening sacrosanct principles of judicial independence), this old adage is a pertinent reminder that a little bit of empathy and understanding goes a long way for effective advocacy in international arbitration. It also highlights that the purpose of advocacy is to persuade the arbitral tribunal, not anyone else.
On 16 July 2021, Amanda Lees, Partner from KWM’s Singapore office, sat down with lawyers from KWM’s global network for a virtual fireside discussion of what makes a persuasive advocate from the perspective of an arbitral tribunal at the procedural phase of an arbitration.
A summary of Amanda’s key tips and tricks is set out below.
1.Know your rules
It goes without saying that the bread and butter of effective advocacy is knowing the law. This means knowing the procedural rules that apply to your arbitration, for example the SIAC Rules, ICC Rules, or HKIAC Rules.
When drafting procedural orders, remember to consider not just whether the orders you are seeking are within the scope of the applicable procedural rules, but also whether they are within the spirit of those rules.
In particular, consider whether the procedure you are proposing is fair, expeditious, economical and will assist the final resolution of the dispute. Many institutional rules contain an explicit obligation for the tribunal (and the parties to dispute) to conduct the arbitration expeditiously, fairly and economically, e.g. rule 19.1 of the SIAC Rules and article 22(1) of the ICC Rules. Appealing to these principles will lend you credibility, and therefore persuasiveness.
2. Know your Tribunal
A lot of what you may be able to achieve at the procedural stage of an arbitration will also depend on who sits on your tribunal – so make sure you do your due diligence.
In days gone by, seminars, conferences and other in-person forums were great opportunities for lawyers to scope out potential tribunal appointees. One of the silver-linings of a world that has migrated online during the COVID-19 pandemic, is the proliferation of online webinars and interviews with prominent arbitrators.
Other relevant considerations may include:
- Tribunal members may all be experienced international arbitrators – this means that it may be difficult to shift a tribunal on its case management preferences. Experienced tribunals will often prepare a draft procedural order prior to the case management conference. This may create added pressure to persuade the tribunal to depart from (or at least amend) its pre-formulated orders and adopt an approach that is more favourable for your client.
- Tribunal members may be ex-national court judges – it is an increasingly well-trodden path for national court judges to pivot to arbitral appointments after leaving the bench. Judges who are more recent additions to the international arbitration community may be influenced by their experience of litigation in their home jurisdiction when considering procedural questions. In such cases, think carefully about how to persuade such tribunal members to shift their approach, where necessary, without being patronising or disrespectful.
- Tribunal members may be from the English bar – if you find yourself before a tribunal of English barristers, pleadings style submissions will likely be favoured. You may also need to consider appointing an English QC, given the familiarity of this style of advocacy for this kind of tribunal.
- The tribunal may be mixed – in a mixed tribunal, the presiding arbitrator will often take the lead in determining procedural matters. However, you will still need to bear in mind the preferences of the co-arbitrators.
3. Effective correspondence
Unlike litigation, the tribunal will be appointed as soon as the dispute is submitted to arbitration and will therefore be a direct witness to each interaction between the parties across the entire lifetime of the arbitration.
Every letter or email to the tribunal and/or the other side is therefore an opportunity for you to demonstrate your credibility.
When drafting correspondence, remember the following tips:
- state who you are and who you act for;
- state what you want clearly and concisely;
- provide reasons for what you are seeking, for example by reference to procedural rules or norms in international arbitration;
- use a measured and neutral tone and never be aggressive;
- be accurate;
- do not personalise your communication (avoid ‘we’, ‘you’, ‘they’ pronouns); and
- assume that any communication with the other side will be reviewed by the tribunal.
4. Case Management conferences
The case management conference will be the first time for the tribunal to hear from and see you. The tribunal is looking for consensus, so avoid being extreme. Remember to:
- be concise when explaining your reasoning;
- be helpful – if there is anything that the tribunal has not addressed (for example, logistics around arranging a hearing room, or whether or not a transcript will be produced); and
- be flexible.
5. Be Cooperative
Above all else, they key to effective advocacy at the procedural phase is to show the tribunal that you are reasonable and cooperative. You should therefore:
- avoid grandstanding;
- only take important points; and
- agree to reasonable extensions.
With the above tips in mind, you can avoid alienating the tribunal and ensure your client is able to seize each opportunity for persuasion.