By: Tim O’Shannassy, Associate, Squire Patton Boggs (Perth)
The second edition of the SIAC Academy titled “The Making of an Advocate and an Arbitrator” was held on 18 and 19 November 2019. Day 1 focused on advocacy training and featured interactive sessions on topics such as the key elements of persuasive advocacy and effective cross-examination in international arbitration. Day 2 focused on arbitrator training and explored how to handle potentially tricky scenarios as an arbitrator, offering a behind-the-scenes look at tribunal deliberations, and even tips on how to draft an enforceable award.
Welcome Address by Mr Davinder Singh, SC
Mr Davinder Singh, SC (Chairman, SIAC; Executive Chairman, Davinder Singh Chambers LLC) made a gracious welcome address in which he noted the efforts SIAC was making to facilitate the sharing of knowledge. With that in mind, and through vehicles such as the SIAC Academy, Mr Singh encouraged participants to extract as much as they could from the assembled doyens of the industry, and to see how the experts viewed particular matters, and where they saw international arbitration headed in the future.
As part of his concluding remarks, Mr Singh encouraged Academy participants to work hard at refining their skill sets and pledged that SIAC would do what it could to support those who wished to pursue a career in international arbitration.
Opening Address – The Art of Advocacy in International Arbitration
Mr Gary Born (President, SIAC Court of Arbitration Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP) then gave his opening address. In doing so, Mr Born explained that the theme of this Academy, “The Making of an Advocate and an Arbitrator” was essentially an example of ‘double-hatting’, referring to how advocacy and arbitrator skills are commonly thought of as being distinct from one another, yet shared a symbiotic relationship in terms of training.
It was through this prism that Mr Born emphasised the importance of listening when appearing as an advocate. He remarked that a common mistake made by counsel was to refer to a ‘script’, rather than focussing on engaging the arbitrators. For that reason, in order to be a persuasive advocate, Mr Born highlighted the importance of being able to think on your feet, being able to deal with questions and comments whilst communicating a compelling case theory. To develop those skills, Mr Born offered one piece of advice for aspiring advocates that could not (and ought not) be discounted: hard work.
[Panel Discussion] Elements of Persuasive Advocacy and Effective Cross-Examination for International Arbitration
For the morning’s panel discussion, Mr Born was joined by fellow arbitration practitioners, Mr Jern-Fei Ng QC (Barrister, Essex Court Chambers), Mr Francis Xavier, SC (Regional Head, Dispute Resolution, Rajah & Tann Singapore LLP), Mr Chan Hock Keng (Partner, WongPartnership LLP) and Mr Chong Yee Leong (Member, SIAC Board of Directors; Partner, Allen & Gledhill LLP). The panel was moderated by Ms Lijun Chui (Member, YSIAC Committee; Counsel, Clifford Chance) with the session providing helpful tips for improving written and oral advocacy.
As part of this discussion, Mr Ng QC, noted that having had the experience of appearing both as an advocate and as an arbitrator, it was crucial to read the situation in real-time when making oral submissions. He echoed Mr Born’s sentiments that counsel should avoid operating via a ‘script’ and instead direct its attention to engaging with the tribunal, something which was a key pillar to being a persuasive advocate. To that end, he advised that the best counsel would listen to see where the Tribunal is interested, in terms of issues or topics, and would adapt their submissions accordingly.
That concept of ‘adaptability’ was picked up on by Mr Born who noted that it was also important to have a robust and clear case theory that was capable of being developed and adapted in order to best convey that message to the tribunal. In fact, Mr Born stressed that a case theory ought to be developed and progressed at each stage of the hearing, whether through oral opening, cross-examination or expert witnesses. Such progression is an important test when contemplating whether or not to cross-examine or brief expert witnesses.
When the panel was asked about how best to deal with weaknesses in your own case, Mr Xavier, SC, advised that an advocate must have a robust case theory but ought to ultimately be candid and open with the tribunal. He went on to note that arbitration was not a game of chess or a war of attrition, but rather a process of dispute resolution, which entailed helping the decision maker reach a conclusion.
To establish that kind of robust case theory, one capable of withstanding critique, Mr Ng QC, added that he would in preparing for cross-examination questions, start with the points he intended to close his case on. He then worked backwards to work out the questions he wanted to ask in cross-examination, and the topics he wanted to traverse in order to arrive at that conclusion.
Mr Born suggested that the aforementioned skills required an advocate to execute skills in ‘fast’ and ‘slow’ thinking. These were concepts explored in Daniel Kahneman’s novel ‘Thinking, Fast and Slow’ where fast thinking referred to the intuitive and ‘snap’ decisions one makes, the slow thinking referring to our logical, reasoned processes. As was explained, tribunals and advocates do both of these things in tandem. As Mr Chan pointed out, one of the best illustrations of this two-level thinking at a hearing was during cross-examination, where you would be looking to keep witnesses’ evidence confined to the questions they were asked. This required very deliberate thinking but also the ability to immediately change course if required.
From the topic of cross-examination, the discussion then turned to the ethical considerations surrounding the preparation of a witness for arbitration hearings. As the panel pointed out, this tended to be a controversial topic. However, the panel unanimously agreed that best practice was to use the witnesses’ own written statements as the starting point as a means of ensuring familiarity with the subject matter. On this point, the panel noted that although witnesses would often feel like they knew everything about the case because they had ‘lived’ the dispute, in reality, when it was time for them to give oral evidence, they were often unable to recall the precise details or the specific documents. The panel also suggested that it was the less ‘polished’ factual witness statements that generally proved to be the most helpful. This was because when it was time for the witness to prepare for his cross-examination, if the content was already drafted in a style that the witness was already familiar with, they would have less trouble understanding it. On that basis, whilst counsel may wish to assist with the overall structure or format of the witness statement, it was advised that the drafting be the product of several meetings or discussions between counsel and witness. Once the witness was familiar with their written statement, counsel would generally move on to discuss the themes or issues likely to be traversed under cross-examination. However, at no stage during the preparation should the witness be coached or told how to answer a question.
For similar reasons of accuracy and familiarity, Mr Xavier, SC, also pointed out that meeting with groups of witnesses together as a ‘cluster’ ought to be avoided, given the risk of a single witness’ own recollections being influenced by others in the group. While the same risks are reduced when engaging expert witnesses, the panel suggested that the actual selection of an expert was probably the most important thing, with the issue of credibility being a primary consideration. They went on to opine, though, that when engaging experts, parties also needed to remember that a clean expert was one who is independent. Everything communicated with an expert could be used as evidence, and would not be subject to privilege. For example, if an expert provided a report which was not favourable to your case, that may be open to being used in the arbitration.
To conclude the panel discussion, Mr Ng QC, addressed the topic of dealing with clients who insisted on deploying a specific case theory. He suggested that in those circumstances, it was important to remember that, as an advocate, you had two constituents: one was your client, and one was your decision maker. In order to fulfil your obligations, Mr Ng QC, advised that advocates must have courage in their convictions, to listen to the client’s point of view, but to ultimately advise and persuade them to accept your recommendations by explaining why a specific case theory would or would not succeed.
Mock Evidentiary Hearings
Following the morning’s captivating panel discussion, the Academy participants had the opportunity to put their own advocacy skills to the test in a series of mock evidentiary hearings. During these breakout sessions, participants delivered opening submissions, cross-examination of factual and expert witnesses and closing submissions. As the allocated time for oral submissions was kept deliberately short, advocates were encouraged to be clear and direct in their delivery. In sum, these sessions provided the perfect setting for honing advanced advocacy skills, with the added benefit of invaluable, real-time feedback from some of the industry’s best arbitrators.
Mock Hearing Demonstration by Teaching Faculty and Q&A
After having prepared for and delivered their submissions in the mock evidentiary hearing, the Academy participants were fortunate enough to then observe the ‘pros’ in action.
Using the same set of facts, Ms Charis Tan (Director, DWF LLP) and Mr Ng QC, appeared as counsel for the Claimant, with Mr Ankit Goyal (Partner (Foreign Law), Allen & Gledhill LLP) and Mr Darius Chan (Counsel, Norton Rose Fulbright) appearing as counsel for the Respondent. They were before a mock tribunal consisting of Mr Chan, Mr Chong and Mr Xavier, SC, and with Mr Born roleplaying as tribunal secretary. Ms Chui had the unenviable task of appearing as both side’s factual and expert witness.
What was apparent when observing such an experienced group of advocates was that each had a precise case theory, and a meticulously prepared conceptual roadmap, through which they were able to engage the tribunal and effectively convey their party’s position. The mock hearing was light-hearted, but the competitive streak in each counsel was certainly evident.
Networking Drinks
At the conclusion of the first day of the Academy, participants gathered for networking drinks. This was a fantastic way to close out the busy day of activities and provided another opportunity to interact with the other attendees who had come from all over the world, with a shared interest in international arbitration.
