As the first in a series of articles written exclusively for the Advocacy Section by nominees for the 2015 Solicitor Advocate of the Year Award, Tim Taylor QC explains how he approaches international arbitration as a solicitor advocate - and gets into the heads of the decision-makers.
In international arbitration, the advocacy begins from your first communication. Before a tribunal approaches its task, it needs to manage a process.
Most arbitrators are busy people. Gratitude to somebody who makes your job easier rather than harder is a natural reaction. The advocate who proposes workable, common-sense procedural approaches is more likely to capture attention and get their way.
In many international arbitrations, the tribunal (or members of it) may not have English as a first language, and may be trained in civil law rather than common law. They may not be legally qualified, either at all or in the law applicable to the dispute. Equally, the legal representatives of the parties may come from different legal traditions and professional backgrounds.
These factors work against a one size fits all approach. But it can be helpful to have these three questions in mind:
- What are the issues that require decision?
- What are the facts that bear upon them?
- What are the legal principles engaged?
These questions may sound obvious, but lawyers and clients lose sight of them at least as often as they lose sight of the overarching question ‘What is the optimum realistic outcome of this dispute in the client’s best interests?’
A lot of hard work goes into crafting written submissions, witness statements, expert reports and requests for disclosure, all informed by these three key questions. But no matter how diligent your tribunal may be, it is dangerous to assume that they will be fully familiar with the facts, the issues or the law when you open a case to them.
Oral openings in international arbitrations are typically measured in hours (or even minutes) rather than days, so how can you make your time count?
There are several aspects of the way people tend to absorb information presented by a speaker that are worth remembering.
- People find it difficult to memorise more than five significant features or themes from an oral presentation.
- People respond to the power of narrative - a story with compelling themes, a beginning, a middle and an end.
- The ‘rule of three’. The army training technique requires you to ‘(1) tell’ em what you are going to tell ’em, (2) tell ‘em, and (3) tell ’em what you’ve told ‘em.’ Try telling the one about the Englishman, the Irishman, the Scotsman and the Welshman; the listener’s attention will drop by the time you get to Wales.
Devastating cross-examinations are very common in the fantasies of advocates, but much rarer in the real world. It should be possible for a good advocate’s overall case strategy to be applied to the preparation of their cross-examinations too. Ask yourself how many points you can afford to lose or go wrong, and yet still win, and plot your path accordingly. Often as not, a low-risk cross-examination can be confined to highlighting features that are in the documentary record (and which cannot easily be contradicted), so that they penetrate the conscience of the tribunal.
Your last advocacy task will typically be to prepare a written closing or post-hearing brief. The counsel of perfection is to craft a document that a lazy arbitrator could cut and paste into something called ‘final award’, before signing it.
The post script
In complex cases, it is of course facile to think that all advocacy can somehow be shoehorned into trite rhetorical devices. Lucid and tightly-reasoned written submissions as well as visual presentational aids and lists of issues all play their part.
You can, however, honour these rhetorical devices when speaking forensically, even when working your way through a list of 30 or more separate issues that have been identified. Anybody with an appetite for tips under 26 headings rather than just the three above is invited to visit my arbitration advocacy alphabet.
About the author - Tim Taylor QC
Tim Taylor is a solicitor advocate who specialises in international litigation, regulatory investigations, fraud and asset tracing, and public international law. He acts for major corporates and financial institutions, sovereign states and parastatals, high net worth individuals and heads of state, with a focus on the following sectors: international trade and financial services, telecoms and media, construction and banking. He is the only QC residing in the United Arab Emirates (UAE).