What Counsel in
Arbitration can do,
must do or must not do?
.'
Vanessa Foncke and BenoÎt Kohl (eds.)
Hakim Boularbah, Filip De Ly, Pascal Hollander,
Luc Imbrechts, Joachim Knoll, Françoise Lefèvre,
Maxi Scherer and Emma Van Campenhoudt
IIIIIiIIII
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Imprimé en Belgique
Dépôt légal :
Bibliothèque nationale, Paris: octobre 2015
Bibliothèque royale de Belgique, Bruxelles: 2015/0023/202
ISS~: 1783-5755
ISB~ : 978-2-8027-5121-2
PANEL DISCUSSION:
HOW (NOT) TO BEHAVE AS COUNSEL
IN ARBITRATION - PRACTICAL TIPS
AND OBSERVATIONS
Joachim
KNOLL
PARTNER AT LALIW
Arbitrator's
point of view
1. Many - if not most - arbitrators, including myself, primarily act
as counsel representing parties in international arbitration, and spend
only part of our time as arbitrators. The obvious advantage of splitting
one's practice in this way is to have both perspectives and be able to
advise clients as to what arbitrators expect and how they tend to react.
2. One would think that this first-hand knowledge of what has
been described as the "black box"! of arbitral decision-making would
lead to a consistent adjustment in one's practice as counsel. Yet, even
counsel who regularly sit as arbitrators tend to give in to the vices of
litigation and write that one procedural letter too many or are that little bit too dramatic in oral pleadings or cross-examination. It therefore
does make sense to take stock and to remind oneself of what things
look like from the head of the U-shaped table.
3. "Practical tips and observations" should not be prefaced by the
ever so lawyerly "it depends" . Yet, there is no one "arbitrator's perspective" on counsel conduct in an arbitration. Indeed, depending on
their legal and cultural background, experience, character, and style,
arbitrators may perceive the same conduct by counsel very differently.
In addition, that perception may well depend on the mood of the day
of the individual arbitrator, the procedural history of the arbitration,
and the arbitrator's relationship with the counsel in question, to name
but a few elements.
4. Thus, it does very much depend, and the recommendations below can only be a modest digest of what at least some arbitrators may
tend to agree upon.
L BE
RESPECTFUL, BE HELPFUL, DON'T YELL
5. Unethical behaviour by counsel in an arbitration - even if the
arbitral tribunal does not sanction it as such" - will invariably be detrimental to the party represented by such counsel.
1 See, B. BERGER
and M. E. SCHNEIDER
(eels),"Inside the Black Box: How Arbitral Tribunals
operate anelReach their Decisions", ASA Special Series No. 42, Juris Publishing, 2014.
2 The discussion as to whether it shoulelbe up to the arbitral tribunal to apply such sanctions
is a very timely one, but woulelgo beyonelthe scope of the present note.
130
JOACHIM KNOLL
6. Without crossing the threshold of the unethical, counsel may
render the resolution of a dispute more difficult than it should be. This
may be done in fairly astute ways, e.g. by creating red herrings that
the tribunal and the opposing party might fall for, or in a more obvious (and normally detrimental) fashion, such as by way of uncalled-for
document production requests or meritless procedural motions aimed
at derailing the proceeding. One can only hope that the arbitrators
faced with such tactics are attentive enough to recognize them as
such, and solid (and/or diplomatic) enough to stop them.
7. Much more commonly, however, the counsel's preoccupation will
be to convince the arbitrators of a position that she or he believes to
have at least some merit. The most effective - albeit not necessarily
the most entertaining - way of achieving this is to act at all times
in a respectful, courteous, and professional manner, towards not only
the arbitrators but also the opposing party, its counsel, witnesses, experts, court reporters, interpreters, and any other players involved in
the proceedings. When presented by able counsel, the facts and the
law speak for themselves, while advocacy styles and tricks fade into
the background.
8. Some counsel, by virtue of their legal and cultural background,
character, or in order to impress their client, tend to exhibit an aggressive attitude, both orally and in their written pleadings, and on
both substantive and procedural questions. Yet, rarely will this have
the desired effect on arbitrators. On the contrary: it may well backfire
and antagonize the members Of the tribunal. When Professor Gaillard,
addressing the psychology of arbitration earlier this year, referred to
"arbitral narcism, arbitral envy, and arbitral anger', it was not a reeommendatíon.>
9. Counsel should of course vigorously defend their client's interest. Yet, in doing so, they should pick their battles; not every issue has
to result in a hard-fought argument. Indeed, most arbitrators appreciate counsel who work towards agreeing on procedural rules or factual
and/or legal questions that do not need to be contested, and who keep
their skills of persuasion for those issues that are genuinely disputed.
10. It is o.k. to agree with the other side on occasion!
e E. GAILLARD, "Freshfields Lectures on SociologyofInternational Arbitration, London, 24 November 2014"; http://www.shearman.com/en/newsinsights/events/20 141l1lgaillard-lectures_on_
sociology-of-arbitration.
HOW (NOT)
nethical, counsel may
than it should be. This
ting red herrings that
for, or in a more obviby way of uncalled-for
edural motions aimed
e that the arbitrators
to recognize them as
op them.
el's preoccupation will
; she or he believes to
albeit not necessarily
is to act at all times
mer, towards not only
:ounsel, witnesses, exer players involved in
sel, the facts and the
s and tricks fade into
cultural background,
end to exhibit an agten pleadings, and on
, rarely will this have
y: it may well backfire
en Professor Gaillard,
this year, referred to
iger", it was not a reeid their client's inter~s;not every issue has
It arbitrators appreci.dural rules or factual
rtested, and who keep
'e genuinely disputed,
casion!
Il Arbitration, London, 24 No;/2014/1l/gaillard-lectures-on-
TO BEHAVE:
ARBITRATOR'S POINT OF VlEW
131
Il. Similarly, in cross-examination, a particularly intimidating demeanour is usually counter-productive. Exposing gaps or inconsistencies in a witness' testimony makes a bigger impression when done in
a respectful manner, rather than when the witness is put under so
much pressure that the tribunal is more preoccupied with the psychology of the exercise (and the witness) than with the substantive points
being made.
12. Some routinely adopted procedural practices are the result of
habits and customs that are followed without challenging their suitability for the case at hand or their usefulness to the members of the
tribunal. Rather than blindly following such customs, counsel should
constantly put themselves in the shoes of the arbitrator who deliberates or who writes the award once the counsel's advocacy is no longer
present. Some of the tools that can be presented in order to achieve
this are presented below.
I
II.
FIRST IMPRESSIONS
13. The style adopted in a request for arbitration depends on numerous legal, practical and strategic considerations. A claimant may
want to impress the respondent and foster settlement negotiations by
a particularly detailed request. Conversely, it may leave the request
short in order to remain flexible, not "give away" too much of its own
case early on, or simply because counsel has been appointed very late
but needs to file the request swiftly in order to interrupt a limitation
period.
14. Arbitrators will pay more or less attention to the initial submissions by the parties. For some, they have little weight, as they will be
"superseded" by the more complete submissions filed by the parties
later in the arbitration, when the parties' cases are more developed
and focused. For others, however, the request for arbitration and the
answer thereto are crucial in that they create the first impression that
she or he gets of the case. They come at a time when the case is a blank
page for the arbitrator, when she or he is particularly curious as to
the factual background, and when cognitive biases that any decisionmaker is exposed to, such as anchor bias (i.e., the tendency to rely
too heavily on the first pieces of information offered) and confirmation bias (i.e., the tendency to interpret things in a manner confirming
one's preconceived notions) are born. It is not advisable for counsel
to try to play with such biases; good and experienced arbitrators are
132
JOACHIM KNOLL
particularly aware ofthese phenomena and therefore significantly less
affected by them than others. However, a case that is well presented
from the outset - even if based on only a few core pieces of evidence _
may create a compelling version of the facts in the arbitrator's mind
that she or he may - subconsciously - develop a tendency to seek confirmation for in the evidence presented at a later stage.
15. Further, the request and answer are, along with initial discussions with counsel, the basis upon which arbitrators are to derive
tailor-made procedural solutions for the case at hand. Any party who
has an interest in a truly tailor-made procedure that deviates from
the ordinary will wish to provide all information required to put the
tribunal in a position to decide in favour of a particular measure such
as the bi- or trifurcation of the proceedings.
III. How CAN
I HELP
you?
16. A lot has been written about the standardization of procedural
rules and patterns that - based on a uniform Procedural Order No. I _
apply regardless of the requirements and opportunities of the individual case. This trend should be countered by discussing early in the
proceedings the particular measures to be applied in order to satisfy
these requirements. This may be done as part of the initial case management conference, in the context of a "Kaplan Opening"," or in a
Case Review Conference."
17. Similarly, counsel in arbitration proceedings should not (but do
regularly) miss the opportunity to enquire, during the case management conference, what the individual habits and preferences of the
arbitrators are in terms of the use of memorials and evidence, before,
during, and after the hearing. There is no reason, other than habit, to
suppose that each of the three arbitrators is best helped by receiving
a lever-arch file with an A4 copy of the submissions and exhibits, accompanied by an electronic copy of the same. If the tribunal does not
address its individual preferences (which, strangely, happens all too
often), counsel should enquire how the arbitrators intend to use the
material presented, both during and after the hearing. If a particular
arbitrator works with - and annotates - hard copies of submissions
and exhibits, counsel needs to help ensure that this arbitrator at all
4
5
N. KAPLAN,
"If It Ain't Broke,Don't ChangeIt", (2014)80 Arbitration 172.
C, PARTASIDES and S. VESEL, "A Case Review Conference, or Arbitration in Two Acts", (2015) 81
Arbitration 167.
HOW (NOT)
fore significantly less
hat is well presented
e pieces of evidence the arbitrator's mind
tendency to seek con, stage.
TO BEHAVE:
ARBITRATOR'S POINT OF VIEW
133
times works on the same copy of the relevant documents, rather than
annotating (in part only) several duplicates of the same document that
have been filed throughout, the proceedings, Other arbitrators do not
require any hard copies at all, Yet others do work with hard copies,
but would rather receive only one chronological set of all exhibits prior
to.the hearing, It depends",
19 with initial discus-
trators are to derive
hand, Any party who
'e that deviates from
(l required to put the
ticular measure such
.ization of procedural
eedural Order No, 1 rtunities of the indiiscussing early in the
ed in order to satisfy
the initial case mann Opening",4 or in a
gs should not (but do
ng the case managerd preferences of the
and evidence, before,
, other than habit, to
t helped by receiving
ons and exhibits, acthe tribunal does not
gely, happens all too
irs intend to use the
aring. If a particular
opies of submissions
this arbitrator at all
72.
ration in Two Acts", (2015) 81
IV.
WHO IS SUPPOSED TO READ ALL THAT?
18. Arbitrators are commonly faced with hundreds of pages of written submissions and hundreds, if not thousands, of exhibits, It goes
without saying that such vast amounts of information and data can
only be processed correctly if presented, by counsel, in a clean and
easily-comprehensible fashion,
19. In addition, counsel have every interest in providing tools that
make the arbitrators' understanding üf the case and the evidence, as
well as the remembering of the different aspects throughout the proceedings, easier, Tools that may achieve this include the following:
a) Organigrams / charts - it appears to.be a natural tendency für
many lawyers to. illustrate complex facts in diagrams showing
the relationships between the players, and including reference to.
core steps in the chronology of the dispute (such as the different
contracts at issue, their date 0.1' signature and/or termination,
etc.),
b) Timelines - are greatly helpful to. summarize the factual chronology and they constitute an often-used reference document in
delibera tions.
c) Executive summaries - sorne arbitrators encourage parties to.
provide executive summaries of as many documents as possible,
including chapters of written submissions, witness statements,
and expert reports,
d) Skeleton arguments - even in cases where the arbitral tribunal has not specifically required it, parties may consider filing
skeleton arguments in order to. provide the arbitrators with an
overview of the disputed issues and evidence filed.
134
JOACHIM KNOLL
V.
I
DURING AND AFTER THE HEARING
20. The evidentiary hearing is the main opportunity for counsel to
bring the case to life. Refined oral advocacy and witness examination
skills certainly go a long way in order to convince arbitrators of the
merits of one's case. In addition, however, here again, counsel is well
advised to provide the arbitrators with tools (other than the hearing
transcript) to work with when deliberating or writing the award. Such
tools include demonstrative exhibits that illustrate or process evidence
on the record, as well as "aides-mémoires" that capture and summarize a particular line of argument and/or testimony of witnesses and
experts given at the hearing. Some counsel use large demonstrative
exhibits or images that stay posted on the wall behind counsel for the
entire duration of the hearing, so as to "burn themselves" into the arbitrators memory until the tribunal's deliberations. PowerPoint presentations accompanying the parties' opening statements (together with
the printout of the presentation) may be a helpful support, just like
they may be utterly distracting.
21. Post-hearing memorials are usually the last and best opportunity for counsel to bring all of the elements of the party's case together
and to provide the arbitrators with the tools needed to enter into the
deliberations and/or the drafting of the award. Styles differ greatly,
but it might well be advisable to adopt a style and format that is different from the earlier written submissions: short summaries of the
party's arguments, without much advocacy but with complete references to all of the evidence submitted in support of each individual
argument may well be useful. Other arbitrators may prefer other approaches.
22. In any event, counsel are well advised to be particularly attentive to the arbitrators' reactions, doubts, and questions raised during
the hearing, and to follow up on them in closing statements and/or in
the post-hearing memorial. Arbitrators' questions may be aimed at exposing the weaknesses of a party's case, in which case that party has
every interest in answering the questions. Maybe more likely, however, such questions may simply challenge possible solutions to the
dispute that the arbitrator finds compelling. By answering the questions either directly at the hearing or in the post-hearing submission,
counsel has an invaluable opportunity to remove any obstacles on the
arbitrator's path to following that party's case.