高效国际仲裁辩护与案件管理：仲裁员视角（一）

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 I)
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 asarbitrator. 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 thespecialist. You let the specialist do whatever they have to do. Externalinternational 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 betweenwhat the external counsels think of the case and what you (referring to the inhouse counsel) think of the case. You are the ones who pay for the externalcounsels. 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 astandard 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 lawpractice 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 acase. 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 no tinquisitorial. The tribunal, according to the theory, is neutral and sits backand waits for the parties to organize themselves in separate interest groups-claimantand 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 beeducated. 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 thearbitrators 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 phaseis 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 offacts, 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 educationis 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 roadmarkings 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 manyhours. But what happens when these documents come to the arbitrators’ rooms, itis 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 thedocuments 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 apoint law, you normally do it with information technology-databases. In olddays, when you research a point of law, you visit some might call it, alibrary. 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 alibrary, you search online. Searching online, if you are not disciplined, you will produce hundreds of results. And that hundreds of results will turn into as tream of citation, in the footnotes in your memorial. So the arbitrator ateach 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 throughthat 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 them emorials, 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 thewitness 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 Ispent 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.
*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.