By Catalina Bizic, Arbitration Intern, Al Tamimi & Company
The YSIAC-ADGM Advocacy Workshop took place on 5 February 2020 in Abu Dhabi at the ADGM Arbitration Centre to put into practical perspective both the art of oral advocacy and essential skills for a successful cross-examination. Over 70 people attended the workshop which was followed by the SIAC-ADGM Arbitration Conference.
The host for the workshop was Ms Khushboo Shahdadpuri (Member, YSIAC Committee; Senior Associate, Al Tamimi & Company), who introduced the speakers, starting with Ms Lim Seok Hui (CEO, SIAC). Ms Lim highlighted that UAE parties had ranked 5th in the top 10 foreign users of SIAC in 2019, and pointed out the benefits of joining the YSIAC network of talented practitioners from around the world.
The Keynote Address was delivered by Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP) who switched the initial topic requested by YSIAC on “The Art of Oral Advocacy” to “The Myth of Pathological Clauses: Perfecting Imperfect Arbitration Agreements” because without consent or a valid arbitration agreement, there would be no arbitration and therefore no oral advocacy. The main takeaway suggested by Mr Born was that imperfect arbitration agreements deserve to be cured and perfected and not abandoned in a “dark museum” of pathological clauses.
Left to Right: Fatima Balfaqeeh, Anne K. Hoffmann, Lim Seok Hui, Gary Born, Thomas R. Snider, Iryna Akulenka, Wendy Lin, Thanos Karvelis, David Hume, Richard Clarke, Yu-Jin Tay and Khushboo Shahdadpuri
Ms Shahdadpuri thereafter introduced the case scenario and the structure of the workshop, which featured Ms Anne K. Hoffmann (Independent Arbitrator, Hoffmann Arbitration LLC, UAE), Mr Thomas R. Snider (Member, SIAC Court of Arbitration; Partner, Head of Arbitration, Al Tamimi & Company) and Mr Yu-Jin Tay (Partner & Head, International Arbitration (Asia), Mayer Brown LLP) as the arbitral tribunal.
The fictional case involved a dispute arising out of a contract for the construction of a nuclear power plant between a UK and an Iraqi party. The dispute resolution clause provided for arbitration in Abu Dhabi under the SIAC Rules. An alleged delay of the completion of the works prompted the Iraqi company to seek damages for the delay and rescission of the contract and the UK company to bring forth a counterclaim for the non-payment of certain sums.
For the first cross-examination session, the Claimant’s witnesses were Ms Iryna Akulenka (Managing Consultant, HKA Global Limited) and Mr Richard Clarke (Senior Associate, Dentons & Co.). They were cross-examined by the Respondent’s counsel, Ms Wendy Lin (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) and Mr David Hume (Senior Associate, Shearman & Sterling LLP). The session showcased one incisive style of cross-examination as opposed to a more gentle style, both nonetheless effective in making the witness appear less credible and reliable.
The second cross-examination session had the Claimant’s counsel cross-examining the Respondent’s factual witnesses. Mr Daniel Xu (Partner, King & Wood Mallesons) and Mr Thanos Karvelis (Partner, Charles Russell Speechlys) posed questions to Mr Marcus Starke (Senior Associate, Freshfields Bruckhaus Deringer LLP) and Ms Fatima Balfaqeeh (Managing Director, RKAH Consultancy). Both styles of cross-examination had different effects on the witnesses, which either found them standing on shaky ground or growing more confident with each question.
Lastly, Ms Sarah Malik (CEO & Founder, SOL International) moderated the panel discussion with Ms Hoffmann, Mr Snider and Mr Tay on dos and don’ts during a cross examination based on the mock sessions. One of the key points emphasised was how crucial preparation is to ensure knowledge of the case and of the witness but still leave room for flexibility. The panel also tackled the different expectations when cross-examining lay witnesses compared to expert witnesses, as well as the civil law and common law divide. On the latter point, it was highlighted that arbitration is unique in that there is a melting pot of styles, where the civil versus common law divide is attenuated and that practitioners should adopt whatever method comes to them naturally so that they become more authentic advocates.
Following this well-received inaugural YSIAC event, we look forward to other practical workshops organised by YSIAC here in the UAE.
