Effective Advocacy and Procedure Management in International Arbitration: An Arbitrator’s Perspective 高效国际仲裁辩护与案件管理：仲裁员视角

2016 年 11 月 22 日，由亚太国际仲裁论坛和上海国际仲裁中心共同主办， 达辉律师事务所承办，香港国际仲裁中心、国际商会仲裁院、新加坡国际仲裁院 作为支持机构的“高端公司法务国际仲裁培训及研讨会”在上海举行。英国御用 大律师 Toby QC Landau 先生从仲裁员的视角，分享了他对高效国际仲裁辩护与 案件管理的深刻见解。（记录整理：上海国际仲裁中心 李挺伟）

Toby QC Landau： Good afternoon! It is a great pleasure to be here in shanghai. I have the task of being the last speaker, which is the toughest slot in the afternoon. Good to begin, I give you two key points. The first one is that for most of my professional career, I divided my time, as I told you now, between being counsel in international arbitration as well as local court, and sitting as arbitrator. I’m going to give you an insight look at what goes on amongst arbitrators. As arbitrators, what they think of things like standard practices. The first thing I give you is the different perspectives of being counsel and being arbitrator. As a counsel, we do things the way as we think they should be done. And the perspective of a counsel is that the standard way is the most effective way. If you stop for a moment and sit on the other side of the table as an arbitrator, you will have what I had many years ago when I started sitting as an arbitrator the revelation. And revelation is how irritating counsels are. How they think, the counsels do, the ways that are effective are not effective, or are not helpful. And the second introductory point I want to make is what follows. You should not think, as an in house counsel, that all needs for concerns are just for the external counsel, for your arbitration specialists you employ for your case. That is a major mistake. This is not like delivering yourself to a brain searching or an airline pilot when you give yourself to the specialist. You let the specialist do whatever they have to do. External

international arbitration counsels will tell you that they are specialists. They will tell you that this is how things are done. The external counsels expect in house counsels to simply hand over the case, to let them master mind it and lead the way. It should be an active collaboration between in house counsel and external counsel. And what are the perspectives that international arbitrators frequently have is that they wish to hear more from in house counsels. Very often the case is arguing in front of a tribunal by external counsels, and they are running it as if it is their case. There is often a disconnection between what the external counsels think of the case and what you (referring to the in house counsel) think of the case. You are the ones who pay for the external counsels. You are the ones who actually own the case. It doesn’t mean that this is for external counsels only. Now if you stand back and think about how we conduct international arbitration, there is a standard system, a Hebrew system that has grown up over the years and now operates in most cases. We all now rejoice what we call a meeting of civil law practice and common law practice, sometimes called convergence. The idea is that we have a uniform way of presenting and arguing a case, whether you have a French background, an English background, or Korean, Australian, Chinese or whatever it is, when you argue in international arbitration, you have broken down the barriers. So we all now follow a similar standard, representing a case. And the international arbitration community is very proud of it. We tell other systems that we have unified our procedures. What I am going to do is to run through each of the components, each of the steps that make that uniform practice. And I will tell you what it looks like and what it feels like to an arbitrator, and explain to you why this standard practice is often not the best way of presenting your case. So what is the standard practice? It is actually based upon the Anglo-American system. For whatever reason, English and American practice has become dominant. So it is not what the civil law but the common law that it looks like. You start with the tribunal. The tribunal itself is not investigating. It is not inquisitorial. The tribunal, according to the theory, is neutral and sits back and waits for the parties to organize themselves in separate interest groups-claimant and respondent, and then to bring

forward the arguments to the tribunal. The tribunal stands above the level of parties. And it sits and waits to be educated. It starts from knowing nothing. That’s very important. Because your job, as the counsel by the end of the hearing, is to educate the tribunal. This is a common law theory for common law judges. It is described by common law commentator as the principle of unpreparedness. That is that the judges or the arbitrators will come to hearing not prepared, unlike the civil judges. Because the preparedness is by the counsels, the counsels will educate the tribunal. For some arbitrators, they will get enthusiasm, but others are totally unprepared. But how do you educate? The education process is not actually very obvious. We do it in series of phases. First phase is a written phase, followed by an oral phase and maybe a written phase again. So the first phase: each side will produce memorials, written memorials, a written statement of your case. And these tend be huge documents-all matters of facts, all matters of law, all evidences filed in one volume. That would be done by the other side. And then you repeat that in your reply. That’s two sets. Then you will have document production at some point along the sequence. Then you will have written witness statements, written expert reports. This is the standard practice. Then you move on to the oral hearing. In oral hearing, you will have opening submissions by counsel. Examining your witnesses: direct examination, cross examination, re-examination and then you will have the same on the experts: direct examination, cross examination, re-examination. And then you will have closing submissions. And after that, you may have post-hearing briefs. At the end of that, you sit back and wait for the award. Now that is the theory. What does that look like according to the arbitrators? Well, it can look, frankly, extremely uncomfortable. Because in most international cases nowadays, the volume of materials that is handed over to the tribunal in this concept of education is massive. Let’s go through each of these steps and I will describe to you what your external counsel will tell you what is needed for the case. They will tell you that written memorials will cost a huge amount of money. They will be massive documents. They will require a huge team within the law firm to draft. It may take weeks. It may take

months. The end product will be hundreds of pages as what they tend to be nowadays. Every single point that could possibly be relevant will be addressed in detail. This will be hundreds of pages of prose. And what they will tend to do in the end is that they will cover everything and they will do everything except what the tribunal needs. What the tribunal actually needs is a map, is a way of simply understand the case-some road markings or a route through to the award. That doesn’t mean an encyclopedia of that case. It doesn’t mean hundreds of pages. If you think about it, the way these documents are produced is by law firms, obviously. Law firms throw many associates at this task-people who sit in rooms without windows, without seeing their family, drafting and drafting and drafting and charging a huge amount of money. There could be many associates working on this kind of documents. There could be more associates than the focuses these documents may have. Those documents are written by many different people, rather than one person or a few people. This is a great opportunity for international law firms to bill many hours. But what happens when these documents come to the arbitrators’ rooms, it is quite obvious, when it is filed, it lands on the desk. It is a big document. It looks freighting. It is followed by boxes and boxes of exhibits. They sit in the corner of the room. It requires all that manpower to draft these documents. How is the arbitrator going to deal with it, without a similar stuff, without similar assistance. They will be sitting by themselves in their room. That is an inequity of arms. It is in-balance, between the law firms that produce the documents and the poor arbitrators trying to digest it. With a few exceptions: arbitrators are human. They have human limitations. Humans can only deal with a certain amount of material, before they lose focus. One of the problems is the curse of information technology, IT. IT is seemed to be extremely helpful that it can produce desired results.

If you take out a piece of

paper and a pen and draft, you will think in your head for a long time before you write on your paper. What you write will be short and will be concise, as pleadings used to be many years ago. But with a computer, the way you draft is different. You draft on screen, not in your head. You put everything down that you think of, because you can change it later. You can re-arrange it. Once it is on your screen, it becomes somewhat

difficult to delete it. People will say, “Well, let’s keeps that, because it may be relevant later. Keep our options open.” With the information technology, we have the ability to produce hundreds of pages. But it is quite a burden for arbitrators to make sense of and to actually understand. This is a problem also with substantive law. When you research a point law, you normally do it with information technology-databases. In old days, when you research a point of law, you visit some might call it, a library. Some may not know what that is. A library is a large building with books on shelves. That is only historical interest now. Instead of using a library, you search online. Searching online, if you are not disciplined, you will produce hundreds of results. And that hundreds of results will turn into a stream of citation, in the footnotes in your memorial. So the arbitrator at each point will have in a footnote, maybe twenty cases, books, texts, or authorities. Will they be relevant? Will the arbitrator actually have time to go through that many materials? So this gets repeated when the opposite party serves them their memorial. That’s another thug on the arbitrator’s table. The second memorial lands with boxes of exhibits. Then there is a reply, another huge memorial comes with more boxes. And then there is joinder. By this time, the tribunal is looking at a huge amount of paper. You, as in house counsel, are looking at a huge bill. The tribunal is feeling lost. What happens next? The next thing [that] will happen, sometimes this will happen together with the memorials, sometimes not, is the service of witness statements. Now witness statements used to be the statement of a witness. But they are not anymore. When talking about advocacy-written advocacy, you wouldn’t naturally talk about witness statement. Now you will have to. Because witness statements have become a vehicle-a method for further advocacy. Witness statements are not written by witnesses anymore. They are written by the lawyers. So the lawyers will normally do the first draft after you, the in houses counsel, have given the information to the external counsel about what the witnesses probably can say. That first draft will be shown to the witness. The witness will say, “It’s alright to me.” And the lawyers will produce another polished final draft. And finally the document will be concluded and perfected. When it arrives on the arbitrator’s table, it looks very similar to a written

memorial. Very often it has a same font as the memorial. It’s the same in house style of the law firm. It got the same law firm reference at the bottom left hand corner, for example. It is written in beautiful English or Chinese or any other language. Even if the witness could hardly string a sentence together, he or she will have written beautiful prose in a witness statement. Even if the witness speaks very little English, sometimes you will find a word aforementioned, or a technical word that there is no way the witness will ever have used. And the statement will come with more boxes of exhibits, the same goes with an expert report. Once you have a document production exercise, that itself will cost you a lot of money, as in house counsel. It is a great opportunity for external counsel to spend many hours, pulling together documents, and the end result, as we know, in very few cases will depend upon more than a small number of documents in the end, but more burden, more material that will be supplied to the arbitrators. This exercise in international arbitration doesn’t compare very well with litigation. Arbitration is supposed to be fast, cheap, efficient, flexible. But this process, which we now use as a norm, is not. Compare it to a high court litigation, I give you an example in England. In a recent case in England in the high court, the high court rejected a 94-page statement of case for being too long. That in arbitration would be a short executive summary. The court rejected it in this judgment, saying that this is unacceptably long. It is so long, it is unfocused. It is trying to keep options open, rather than actually telling the tribunal what they need to know. Another example is that I have just argued a case in HK Court of Appeal. This is a very complicated case. We had many hearings before. And it has produced over the years many hundreds of pages of written memorials. But the rule in HK Court of Appeal is that the counsel of each side needs to produce a skeleton statement before the hearing, which can be a maximum of ten pages only. And the font size can be no smaller than 14 point font. I had never had that a demanding intellectual exercise to reduce hundreds of pages into ten pages with 14 point font. Most of the time I spent is on finding the narrowest font. If you have to do it, it is possible. It forces you to keep what is actually most important. You could elaborate later in oral arguments. But in international arbitration, there is no such discipline-there is nothing stopping us doing

that. If you say to your external counsel, “why don’t we produce a ten-page or twenty-page outline about what matters in this case”, two things will happen: firstly, the tribunal will be very significantly assisted by that; secondly, you external counsel will have a hit, because it is not the way they intend to work. Because it is a kind of different exercise, their billing opportunities will be lower. And I say it should be an elaboration between in house counsel and external house, in order to come to the best way of presenting your case. So now let’s shift from the written phase into the oral phase. After all that material has been delivered to the tribunal, you will have an oral hearing. Now the oral hearing is an opportunity to repeat-so many counsel think. To repeat what they have put in their written submissions. And this is a difficulty for the tribunal. On one hand, the tribunal will not want you, as counsel, to repeat what you have written. On the theory, they have read it already. On the other hand, many arbitrators are so lost by the time they come to the oral hearing. They are desperate for counsel to give them a road map, to tell them how to get through these materials, to give them the way to the award. Very often, the tribunal will begin the hearing by saying the same thing which isn’t always true: “we are very grateful to counsel for your written submissions. We have read the submissions. There is no need to repeat them”. It is totally untrue. Even if they have read them, how could they possibly have digested and understood all that material. Remember, most arbitrators are busy people. They tend to sit in many cases. So all of these happened not just in this case, but it happened in all other cases. How can they manage all that material without an assistant, without having a law firm helping them? That means your oral argument can be extremely important for the arbitrators. You then go through the exercise of opening submissions, which can be effected and often can be in-effected. Then you go through the process of witness evidence, which will often help you understand more of the case for the arbitrator. And the experts and the closing submissions. So let’s talk through a few elements before we move on to the other aspects. Why does witness testimony sometimes help and sometime doesn’t? It sometimes helps because you can actually see something in person who can explain to

you what the key points are, guide you through this massive documentation. It will give you an important background to the documents. Where this evidence doesn’t help is where the lawyers get in the way, where cross examination becomes unhelpful, where witness preparation has made the task more difficult. This will be something in house counsel need to consider. When your external counsel tells you we need to treat witnesses in a particular way, you will think about whether or not this will be the most effective way of presenting a case to the arbitrator. Here are some examples. There is now a trend of preparing witnesses for their testimony. This comes from America and now it’s very wide spread. Many different systems have different rules about witness preparation, whether you can do it or you can’t. In America, they generally allow full long preparation, including sometimes a rehearsal. In England, you are allowed with a limited contact with your witness. In civil law systems, you will have virtually no contact with your witnesses before they testify. As an counsel, you want to make your witness as ready as possible. So preparation becomes extremely significant. A better way to prepare is to tell them what to say. For arbitrators, this is very unhelpful. As arbitrators, you can tell when witnesses have been over prepared. I give you an example. Counsel will say to a witness, “on what date did you leave your employment?” and the witness will respond “there are three reasons why I left my employment”. Now when that happens, you know what happened. The witness is not answering the question. No doubt, the witness is over prepared. This is a matter of perspective. If your perspective is of a counsel, you need to get the most as you can from the procedure. You want to maximize each step. If you sit at the other side of the table and think what it looks like from an arbitrator’s perspective, it’s not about maximizing on a strategic point of view. It is actually about helping the tribunal: what is going to be most helpful in the end, if you put yourself in a position of being arbitrators. Then, going through the stages of the sequence that I have described, you get to closing submissions. Closing submissions should be extremely important parts of the process. The tribunal usually waits for month for the closing submission. During that

process, the transcript is also increasing in volume. By the end of the first, they have another stack of papers to read, which is the written transcript. Actually what we now have a mismatch. Because when it gets to closing, there is a curse of the post hearing brief. Closing brief in recommended in many cases. Your external counsel will say to you must have post hearing briefs. They may agree with the opposing counsel that there will be post hearing briefs. In many cases, post hearing briefs can be extremely helpful-the way they put everything together, or simplifying and identifying issues, giving all the references to the tribunal. They often are not helpful, because they are not focused. They don’t bring together everything. They don’t actually identify the issues. They just find excuse for more hundreds of pages-repeating memorials. Each side will do it and each side will complain about the other one doing it. Another problem of the post hearing briefs is that they don’t happen immediately. They happen later. What happens to the end of the hearing? At the end of the hearing, you want to have your summing-up, your closing argument. But actually you don’t get it, because people will serve post hearing briefs, maybe in a month’s time. When you look at the summing-up, people are already looking at the clock and start to think about: when do I have to leave, to get to the airport to get my flight, when should I get taxi. They are already mentally packing up. So they are not really engaged. And then they go off to their next case. So what happens in this case? Memories fade. Until later, a huge post hearing brief will arrive. Many arbitrators feel that they don’t need to do anything until the post hearing briefs come. By that stage, things are not quite as fresh as they should be. It can make people very depressed. This is where the process can go wrong. Now, I want you to switch. I’ve gone through the standard procedures and show you the things that make the tribunal uncomfortable. To talk a little bit more about how arbitrators decide. How do they deliberate? What motivates them in their decision-making? This is extremely difficult to generalize. Arbitrators come in all shapes and sizes. They work in many different ways. Arbitral deliberations can be extremely effective. It can be fantastic exercises. Inspiring. It can be three people come together and work for the best results and work through materials, debating

issues and exchanging points. But deliberations can also be not so good. Deliberations can be shocking. Deliberations can be very surprising. One of the problem is the out-gunning between the counsel and the tribunal. If the tribunal is still lost by the amount of information that has been presented to them, it will have a negative effect on their deliberations. In fact, the deliberations may become very superficial. Because the tribunal is unable to get hold of the material. Now a little bit more detail: I want to describe two processes. They are processes described by psychologists. Cognitive biases. These are very well known in psychology. They are shortcuts that people make in their minds. In what they deal in day to day life, there are mental short cuts that all of us take. Because, otherwise, you will not have enough resources to deal with daily life. All the decisions we have to make. All the materials assimilate to take a hold or understand. Arbitrators are no different. There are many such biases that happen-cognitive biases. It is corruption. It is just how people’s minds work. I will describe two to you. The first one is called anchoring, like a ship’s anchor. And the second one is called confirmation bias. Let me describe each one. Anchoring has been well described over many years. It’s often talked about when speaking of quantum. Here is an example. Imagine a case and you say to the arbitrators that the damages here are 50 million dollars. The arbitrators may take that figure and that figure may stick in their head. After that point, they may make adjustments as they hear the arguments, the evidence, as they hear the other side, they make adjustments-upwards and downwards. But they start with 50 million. When there is a good point, they go up to 60 even 80 million. When there is a bad point or the opponent makes a good point, they go down to maybe 40 or 30 million. But it started from 50 million. If you start them with 200 million, the arbitrators will make adjustments up or down from 200 million. That’s called the anchoring effect. But it could go further. Because they won’t necessarily be anchors by what I say to them. They will be anchored by whatever they noticed in the paper that they get persuaded by. Where they anchor is incredibly important to the result. It changes the way they view the whole case. The effect is more than just the damages. The effect is actually how they see the whole case.

Arbitrators are desperate for help. They need assistance. They need a map. They need get to the end of the case. They do it often by dropping laying anchors. These are points in the case which they will hang onto. Particular events that happened, significant things. And these anchors, once they are dropped, will be their map. It’s a mental short cut. It’s the only way to survive on the massive material that has been given to them. Now that becomes very important because once they drop their anchors, they see the case in a particular perspective. If it is not the perspective you want as the counsel, you got to shake the anchor somehow. If you know what they are, you got to changes the angles to your anchors. Now that’s the anchoring phenomenon. Let me tell to the second one, because it is related. The second one is called confirmation bias. Conformation bias means once arbitrator have formed a view or something, consciously or unconsciously, they will try and stick to that view. That means if evidence or arguments confirm their view, they will allow that to persuade them. If evidence or arguments do not confirm with their map, then the tribunal may be ready to disregard it. That’s called confirmation bias. So tribunal will look for evidence and arguments that will confirm their map. Once the tribunal has formed a map, because of the confirmation bias, they will start to make their map a stronger map-supported by evidence and arguments, which upholds their map. And that is more difficult to shake the tribunal from that. Why is that related? It is related to the problems I’ve described in the standard procedure. The arbitrators need anchors. They need short cuts. Why confirmation bias is so common? That the minute you take them away from their map, what do they do? The only alternative is to go back and read all those paper again. The arbitrators don’t have the time or the will or the energy or enthusiasm to spend hours and hours to find a new map. Put into context: if these arbitrators are going from one case to another, there is all the more reason why they don’t have the time or ability to leave their short cuts and start reading the case again.in each of their cases, they may be developing shortcuts. So what happens then when they get to the deliberation. The deliberation actually comes later after post hearing brief. By this stage, the arbitrators will have gone through many other cases. Their minds are sore. And when they deliberate, the

chances are that the things they will remember are their map. So the deliberation, when it is good, it will be a proper investigation of the case; when it is bad, it will be superficial. President of the tribunal will say, “I’d like to hear your view of the case. Mr. arbitrator A, what’s your overall sense of the case?” Mr. arbitrator A will say “this case to me has always been about four points.” Then the president will ask arbitrator B the same question. Arbitrator B will say “I have three points to sum up this case.” And the deliberation after that may not get so far from those key headline points. So where does that take us as counsels? Either in house or external counsel. It means, if this is the way of deliberation, there are human limitations. Then the standard international arbitration does not match well. What tribunal needs are not hundreds of pages. So the most effective advocates are the ones who provide the maps to the tribunal. They do that work for the tribunal. You will begin the case, whether it’s writing or oral by saying to the tribunal that “this case is about the following key points. Here is your map”. That is a good advocate. They provide the map to the tribunal. But you will be surprised by the number of people who, in English expression that they miss the wood for the trees, that they forget to feed the map in front of the huge amount of material. And they have no idea where the tribunal happens to drop the anchor along the way. I don’t mean to give you an overly pessimistic view of international arbitration. I want to give you a realistic view. Because international arbitration practice has got to a stage called formulate. If you look at the process afresh, unlike court, you don’t have a set of rules for arbitration. Arbitration rules just are broad framework. Within that framework, you can do what you want. You could tell the external counsel that they don’t need to follow the set, they need to think about what is particular about this case. What we really need to do in THIS case to persuade the tribunal. Sometimes, you will need to produce hundreds of pages. Sometimes you won’t. And sometimes, you will do both. You will produce hundreds of pages just in case, and you will also produce an outline for the tribunal, in a nice A5 size which they are able to carry around with them, which sets out key points, the map for the tribunal and treat them as human decision-makers, rather than something of a robot, or something else. And

that is what I have to say. Thank you very much.

*Toby QC Landau is a member of Essex Court Chambers, and in private practice as a barrister since 1994, specializing in international and commercial arbitration. He regularly appears as counsel before the English Courts and international treaty and commercial arbitrations worldwide. He also has extensive experience as an arbitrator in ad hoc and institutional arbitration.（Toby QC Landau 是英国 Essex Court 律师事 务所的一名皇家御用大律师，专长为国际仲裁和商事仲裁，具有非常丰富的临时 仲裁和机构仲裁经验）。