ICCYAF seminar: ‘Paper, paper, everywhere…’

ICCYAF seminar: ‘Paper, paper, everywhere…’

Young arbitrators were in for a treat last week at the ICC YAF seminar, hosted by King & Spalding. The seminar focused on written presentation of a party’s case in international arbitration and considered the topic from a variety of angles.

Keynote addresses came from Philipp Habegger, partner at Lalive, Zurich, who spoke from an arbitrator’s perspective, before Murray Rosen QC delivered his thoughts from the perspective of judge sitting in the Chancery Division at the High Court.

Drafting memorials

Both speakers emphasised that the purpose of a memorial is to persuade the arbitrator that the argument presented is the right one; highlighting the facts/evidence and the legal authority to back up that evidence in order for the arbitrator to draft a reward in your favour. There should be a logical and clear flow to the memorial with a clear structure and narrative flowing from the table of contents at the start. It was recommended that these were drafted commencing with the strongest legal argument, should explain what relief is sought and should be as concise as possible.

Drafting other written documents

Mr Habegger warned that witness statements should not become memorials; it should not serve to introduce new facts or issues. He also recommended that Redfern Schedules should only refer to the paragraph number from the memorial, with a possible note as to why it is relevant, rather than utilising the columns for further details.

Mr Rosen QC spoke about pleadings and referred to the three ‘P’s: preparation, presentation and persuasion. Pleadings must include the contentions of fact and law upon which the party relies and should be presented concisely. Every fact must be pleaded and proved. Mr Rosen QC also spoke of knowing when to stop and preventing allowing the narrative from heading down diversions and via a scenic route.

Other useful tips

During questions from the floor, both speakers again emphasised that arbitrators and judges favour concise pleadings where lawyers are brave and confident enough to narrow down issues, state where issues are irrelevant and to keep the length of written documents down so far as possible. Both speakers also agreed that nothing of any importance should be placed within the footnotes. If it is material to the document, it should be in the main body of the text. They also agreed that pictorial or charts/graphs can be very useful for inclusion in written documents, especially if the client or expert has used such a device to explain a point; they can be particularly persuasive when used appropriately.

Panel dicussion

The seminar then turned to a panel format, with four speakers invited to address differing angles of written documents. Sarah Vasani of King & Spalding spoke about Investment Arbitration and the Word Race; Aimee-Jane Lee of Debevoise & Plimpton spoke about expert reports and the importance of picking the right expert, Catherine Reeves of LexisNexis spoke about potential lessons to be learnt from the CPR and Jackson Reforms and Peter Nikitin of Arnold & Porter spoke about the importance of instructing a good translator for written documents.

Each of the panellists spoke eloquently on their subject and their main points are summarised below.

Sarah Vasani

  • Less is more in terms of written documents. Give the tribunal assistance in navigating to a decision by being helpful, not including an essay on every single point, relevant or otherwise.
  • Keep client therapy out of pleadings.
  • Don’t spend too much time rehashing case law; arbitrators, tribunals and judges are experts in the law; it’s how it applies to the facts of your matter that is important.

Aimee-Jane Lee

  • Vital to pick the right expert & ensure that the expert answers the right questions
  • Include a glossary and executive summary
  • Don’t be afraid to ask your expert questions if you don’t understand their report

Catherine Reeves

  • Since the Jackson Reforms there has been one reported case in relation to reducing number of witnesses and length of witness statements, despite new CPR 32.2 (3) which states that the court may direct to limit witnesses, either in length or format, with sanctions including costs sanctions applicable for non-compliance.
  • Tribunals already have power to limit witness statements backed by a similar sanction.

 Peter Nikitin

  • The importance of a good translator that is fluent in both the legal systems and language of the incoming and outgoing language cannot be emphasised enough.
  • Poor quality translation at best leads to loss of time and money; worse case can lead to key evidence escaping or even loss of the case.

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