高效国际仲裁辩护与案件管理：仲裁员视角（二）

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）
Effective Advocacy and Procedure Management in International Arbitration: An Arbitrator’s Perspective (Part II)
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 understoodall 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 beextremely 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 help sbecause 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 helpis 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 untilthe 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 today 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 oneis 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 thearguments, 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 its tarted 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 arepoints in the case which they will hang onto. Particular events that happened,significant things. And these anchors, once they are dropped, will be the irmap. 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 becauseonce 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 orarguments confirm their view, they will allow that to persuade them. If evidenceor 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 alternativeis 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 anew 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 aproper 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 ororal 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 theexternal 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 humand ecision-makers, rather than something of a robot, or something else. And thatis 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.