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Mark Beeley of Vinson & Elkins' London office fights the corner of 'memorials' in international arbitration.
It's one of the great culture clashes in international arbitration: pleadings or memorials?
When we really get down to it, we mean the question of the timing of witness statements and expert reports.
I'll go out on a limb and suggest that the idea that even in arbitrations between two common law sets of lawyers, it is no longer controversial that pleadings should go further than basic 'points of claim' and that it is now common across the board to plead law as well as facts and even engage in written advocacy. Risqué perhaps, but hopefully a basic truth.
The real question implicit in 'pleadings or memorials"' is whether a party should be expected to serve supporting witness statements (and if necessary, expert reports) along with its pleading and the documentary evidence that supports its case.
That way, the arbitral tribunal gets a complete package, tying together factual and legal submissions from the outset, without the story being dragged out over the course of a year and the pleading, law and the facts only really meeting each other for the first time in the pre-hearing submission, a week (or perhaps only days) before trial.
Those adherents to the memorial (or 'all-in') system (normally those from a civil law tradition or who have grown up practising almost solely in international arbitration) would normally say yes, I will serve my evidence up front; the goal is to present my case, so I will do just that.
Those who prefer an exchange of pleadings before the production of witness statements (often those from the English litigation tradition) argue that such an approach is wasteful; that evidence is led on subjects on which it will later turn out there is no dispute and evidence is missed out because some points will only become obvious in reply, thereby necessitating two rounds of witness statements.
Both positions have their merits, but neither is without criticism.
Let me suggest a few reasons that might tip the scales in favour of memorials.
First, under all the major institutional rules (and the UNCITRAL Rules), there is a built-in assumption that you will serve the documents on which you intend to rely with your pleading. If you can identify the relevant documents and plead to them, why can't you do the same with your witnesses? Equally, how can you plead your case with any certainty if you don't know what your witnesses will say? In other words, you have to do the work in proofing the witnesses anyway, so why not formalise it?
Secondly, there is an argument that forcing the production of evidence up front actually narrows or flushes out issues across the case, in the same way that an exchange of pleadings flushes out legal issues. Why say that we want to narrow legal issues at the front end of the case, but be reluctant to tackle evidential issues until towards the end of the timetable?
However, for me, the real driver comes from the fact that we are meant to be in the game of finding resolutions to disputes, rather than engaging in lengthy formal disputes. Of course, settlement isn't always possible or desirable, but the memorial system forces both parties to face up early on in a case to evidential weaknesses and there is real value in reminding the decision makers within the client teams that they are going to have to be witnesses in the early months of a case. Both factors tend to prompt realistic case evaluations and earlier settlements in cases where settlements are going to happen. And if they are not, then what has been lost?
In any event, even if you are not convinced by the above, this is one of those issues that should be talked about early on in a case, particularly where the parties are operating a default timetable, such as the one envisioned in art 15 of the LCIA Rules. Having one party assuming that they should be providing witness statements with pleadings and the other operating on the assumption that pleadings will be closed out before the first witness interview needs doing will produce some odd results and leave the tribunal with the tricky task of having to rebalance the case.
What do you think? Do you agree - vote in our poll below.
Mark Beeley is a partner in the International Dispute Resolution practice group of Vinson & Elkins' London office.
This article was first published on Lexis®PSL Arbitration on 25 February 2014. Click here for a free trial of Lexis®PSL.
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