LAWYERS IN INTERNATIONAL ARBITRATION – PRESENTATION BYHON SIR IAN BARKER QC, INTERNATIONAL ARBITRATOR

BANKSIDE CHAMBERS, AUCKLAND, NEW ZEALAND

GIVEN AT MINTER ELLISON’S OFFICES, SYDNEY ON23 NOVEMBER 2015 – SYDNEY ARBITRATION WEEK

Introduction

It is a privilege to address so many of you involved in our international arbitration. It

is also a privilege to have a place on the panel with two such distinguished

co-presenters.

I have had the advantage of reading Professor Doug Jones’ paper. I commend to

you his perceptive and prescient analysis of the current state of international dispute

resolution, the challenges and the trends. Helena’s paper will be of huge interest

and highly informative about arbitration in China.

My paper offers some practical thoughts for those of you called to act for parties in

international arbitration. Although at first blush, you might think I am trespassing on

an “Advocacy 101” course, what I have to say is born of my experience as an

arbitrator over the last 18 years. While you may think you are able to conduct a

domestic arbitration hearing much as you would a civil action in an Australian Court,

conducting an international arbitration as counsel or solicitor can be different –

especially when one or more parties and/or witnesses do not come from a common

law jurisdiction and sometimes when they do come from that one very large

conglomeration of common law jurisdictions – the USA.

You will encounter lawyers who are highly-regarded in their own countries who have

quite a different approach to evidence, discovery and cross-examination –all basic

elements of your legal DNA. You will have to deal with civil law systems which have

a different approach to matters of contract especially. Sanctity of contract – an

article of faith for the common lawyer – is not as well-established in some civil law

countries – particularly in Asia.

So whilst you may think you are a pretty hot cross-examiner, you might get frustrated

by a witness who has a different expectation from the contract and who speaks

through an interpreter. So what follows is hopefully of some help in your first

international arbitration.

What’s My Role? An Overview:

a) Arbitrators

Arbitrators are essentially private judges, appointed by parties to resolve

disputes. Although the procedures in arbitration are more relaxed than those in a

formal courtroom, like judges, arbitrators must reach a decision that is accurate in

fact and sound in law. They must satisfy the demands of natural justice which

means that both parties must be given a fair hearing in accordance with natural

justice by an impartial and independent arbitrator.

Arbitrators should be concerned to reach the right decision, whatever it may be.

They cannot allow feelings of antipathy or bias whether caused by the conduct of

counsel or parties or through some prejudice to affect the performance of their

duties.

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b) Legal Representatives

Once the hearing begins, the basic duty of counsel is to present the client’s case

in the best possible way, within both the confines of counsel’s primary duty to the

law and within ethical constraints.

Obviously, honesty, integrity and conformity with ethical standards must always

be paramount. All the lawyers for a party, not just counsel, should become

thoroughly familiar with the arbitral proceedings. This means close acquaintance,

not just with the case being advanced on behalf of the client, but also with the

opposing case, insofar as it can be ascertained from pleadings, witness

statements and discovery. Be aware of the strengths and weaknesses both of

your client’s case and that of the other side. Such knowledge cannot come

without a good deal of hard work, often of an unspectacular and boring kind,

particularly in disputes with a heavy technical content. You never know when

your opponent will try to outsmart you but, if you are fully conversant with your

client’s case and in essential technicalities, you can usually avoid nasty surprises.

Legal Representatives should make themselves familiar with the institutional

Rules (if any) under which the particular arbitration is being conducted. They are

not all the same. The Rules of ICC, ICSID, LCIA, SIAC, HKIAC all have their

subtle differences. Commonly-invoked Rules, such as the UNCITRAL Rules for

the Conduct of International Arbitrations, are often used or adapted in both

institutional and ad hoc arbitrations. There are other useful guidelines such as

the IBA Rules on Production of Documents in International Arbitration and on

Evidence. More recently, the IBA Rules on Party Representation in Investment

Arbitrations. These Rules can be adapted to fit the circumstances of a particular

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case. The latter Rules have not been around as long as the others which are

frequently used as guidelines with such amendments as parties may wish.

The greatest benefit for counsel is trial experience. I was fortunate, as were

many of my generation, to have been a young lawyer at a time, before legal aid,

where one gained experience in relatively minor cases, both civil and criminal in

Magistrates’ Courts or equivalents. One there became introduced to the art of

cross-examination, often winging one’s way by trial and error. There was also

the advantage in being instructed as junior counsel in a higher court where one

could see how competent cross-examiners operated.

Unfortunately these days, it is very difficult for young lawyers to get similar

experience. The only practical way is to learn by osmosis. They should be

encouraged to sit on arbitrations either as junior counsel or as some form of bag-

carrier and listen to experienced counsel.

Matters to be Addressed by a Party’s Lawyers

a) Before the Arbitration Tribunal is Constituted

First, an initial problem can be caused by alleged conflict of interest between a

representative of a party and an arbitrator. This can be alleged in many ways –

such as the arbitrator’s firm having acted for the other party to the arbitration in

the past – often years ago. The IBA guidelines on Conflict of Interest for

Arbitrators can be a guide for practitioners. But the situation can arise where an

arbitrator and a counsel are members of the same set of Chambers. Although

you would know that improper influence is highly unlikely, lawyers and parties

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from other jurisdictions may not feel so confident, despite an English court

decision to the effect that no conflict of interest is to be inferred in this situation.

The IBA Rules on Party Representation seem to affirm a decision made in an

investment Treaty case about three years ago that the Tribunal can refuse

audience to a counsel from the same Chambers in London as the Chair of the

Tribunal. This was despite the fact that the Chair and the barrister hardly knew

each other.

Secondly, the IBA Guidelines countenance “beauty parades” of proposed

arbitrators under strict conditions. Counsel may discuss with potential arbitrator

his/her expertise, experience, availability, willingness to act and possible

conflicts. The events of the case should never be discussed.

b) After the Arbitration Tribunal has been Constituted

The ICC requires the Terms of Reference and a Procedural Timetable to be

established by the Tribunal after the Tribunal has been constituted by whatever

mechanism (e.g. party agreement, ICC appointment of Char etc). In non-ICC

arbitrations, some of this requirement can be dispensed with or adapted.

The diligent legal adviser will be quick to ensure that the essentials of claim and

counterclaim are articulated concisely and accurately and that unnecessary

procedures are discouraged and that a realistic timetable is mandated.

This process means accommodating the commitments of parties, counsel,

witnesses and arbitrators. Some horse-trading is not uncommon and would-be

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dilatory parties or lawyers reminded about the need for efficiency and expedition

– both of which are said to be advantages of arbitration.

Spurring between parties often happens in the lead-up to the actual hearing.

Often parties – particularly those unused to the way common-law counsel

operate-resort to the frequent seeking of procedural orders from the Tribunal.

Bear in mind that at this stage, the Tribunal is not all yours – as it is during a

hearing. Busy arbitrators are probably on another job. So too many procedural

applications can end up irritating the Tribunal which might think, often correctly,

that counsel should be able to “sort things out themselves”.

What now follows is a few thoughts for the conduct at the hearing.

Conduct of Hearing

a) Dealing with the Tribunal

The primary role of a good counsel is to persuade the tribunal, be it a judge or

arbitrator, towards the client’s view of the case and, in furtherance of this goal, to

use every proper and ethical strategy available. It is sometimes said that the way

to a Judge’s heart is not “up the Judge’s nose”. That aphorism applies to

arbitrators too. It is not only good manners, but also good tactics to be pleasant

and courteous to the Tribunal even when you think the Tribunal has gone off on a

frolic of its own. Part of the skill of the advocate is to bring the Tribunal back to

centre and to disabuse it of the error of any preliminary view expressed, however

tentatively.

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Do not treat the Tribunal as if it were a jury. Most arbitrators are sufficiently

hardened not to be swayed by emotion and are more receptive to full and

reasoned arguments, both on fact and law.

A common fault for young advocates is not to see the wood for the trees. If you

have a dozen arguments, some are bound to be better than others. Do not

therefore give the poor ones so much weight, if you use them at all. One good

quality to which all should aspire is judgment, although some counsel seem

incapable of displaying it. One of the manifestations of good judgment is to

discern which is a good argument and which is a bad argument. It could be a

bad argument because there just is not enough convincing evidence, or it could

be a bad argument because it is a technical knockout unadorned by any objective

merit. Only use that sort of knockout argument if you are pretty certain that you

are going to achieve a result by invoking it. Limitation defences are a good

example.

It sometimes happens that international arbitrators see counsel who are highly

intelligent, extremely diligent, knowledgeable about every facet of the case, but

lacking in forensic ability.

I recall a major case when one counsel was all the above with a first-class

Oxbridge degree. His style of cross-examination was to require the witness to

have several books of the record open before him and then asked a port-

manteau type question based on several quotations from the various books. As

chair, I had sometimes to rescue a bemused witness whose first language was

not English.

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On the other side was an solicitor, not a barrister, who had in his youth done a lot

of Magistrates’ Court work and who knew the effectiveness of what simple

questions in cross-examination.

b) Dealing with Evidence

Good advocacy requires selectivity in the presentation of evidence. Superfluous

documentation is unhelpful. It can confuse the Tribunal. You don’t want the

Tribunal to get caught up or diverted on inessential points. Always have a core

bundle of documents. In my experience, there is often no need for a myriad of

Eastlight folders, containing, literally, thousands of documents. My practice is to

put a “post-it” note on anything referred to in evidence or submissions. One finds

at the end of the arbitration that out of thousands of pages of documents, no

more than 10% will have been referred to in evidence.

c) Witness Statements

You must ensure that the statement is that of your witness with the lawyer not

putting words into the witness’s mouth. It is of course permissible to brief a

witness, but you must always be careful to let the witness express the evidence

in his or her own words. One has often had the spectacle of some fairly

uneducated person reading off a script, prepared by a lawyer, using words that

would not normally be in such a person’s vocabulary. Also, where there is a

translation (and so many international arbitrations require translated evidence),

make sure that the witness’s primary evidence is in his or her own language and

then have what has been signed by the witness translated into the language of

the arbitration.

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Interpreters are frequently critical to the arbitration process. Spend some time

checking the experience and ability of the interpreter if you are going to cross-

examine a witness who does not speak English. Such witnesses have the

advantage of extra time to think of cross-examination answers. Be on the guard

against the witness who normally speaks English well, who suddenly loses

his/her ability in that regard when asked to give evidence. Again, the IBA Rules

on Evidence in International Arbitration should be your guide.

d) Cross-Examination

In cross-examination, the advocate shows his or her true colours. Ideally, cross-

examination should consist of questions which are short and succinct and which

usually allow only “yes”, “no” or “I don’t know” answers. That of course is not

always possible in highly-technical cases.

It is not good form to make an objection interrupting your opponent’s cross-

examination, other than for good reason. The down-side of doing so is that you

could be flagging to the Tribunal, either that the witness has suffered a few

palpable hits and/or that you don’t have a very good case.

The ability to cross examine “separates the kids from the grown-ups”. There are

a number of frequently encountered faults in cross-examination – particularly in

arbitrations where counsel has had little prior litigation exposure. The first is

asking compound questions, often preceded by a long narrative and ending with

the words “didn’t you?”, “hadn’t he?”; (French, n’est ce pas?). This modus

operandi is confusing for the Tribunal and the witness.

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I have often said to witnesses “don’t answer that, one question at a time thank

you, counsel”. Double negatives are always confusing for the witness and for the

tribunal and should never feature in a good cross-examiner’s question. Bear in

mind that in some cultures, the witness likes to please and may give a misleading

answer. You should take advice about cultural differences.

Cross-examiners in the heat of battle often misrepresent subtly either the witness’

testimony or some other evidence on the record. You should be vigilant to

ensure that the evidence is put accurately to the witness before the witness

answers a question based on that evidence.

Often hypothetical questions or questions outside the witness’ knowledge area

are asked. You must object to this. It is the factual witness’ role to testify about

facts within his/her personal knowledge. It is the expert witness’ role to testify

about matters within his/her areas of expertise.

Sometimes counsel repeat a question to the witness. This technique can often

be abused. Likewise to cross-examine on matters subject to privilege or about

matters that are unrelated to the dispute for the purpose of embarrassing the

witness is not permitted. Questions aimed at the witness’ credibility are permitted

but counsel should be clear on the facts before alleging prior convictions or even

dodgy behavior on the part of the witness.

Counsel should not be abusive or rude to the witness. Apart from anything else,

losing your cool is very bad tactics on the part of a cross-examiner, even when

dealing with a lying witness. These should be able to be exposed as such,

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usually without histrionics but more effectively, with quiet, patient, concise and

penetrating questions.

Do not argue with a witness or be sarcastic or over-react to the answers. You

must earn the right to become mildly aggressive with a witness by demonstrating

the witness is being un-co-operative and truthful.

You often encounter witnesses who make speeches in answer to even simple

questions. Insist they answer the question – particularly “Yes/No” ones. You

may have then to repeat the question several times. It is best to ask this witness

short questions with one fact at a time. Do not allow the witness to deviate from

the question in his/her answer.

Convenient witness amnesia is often encountered. There are ways of dealing

with this such as showing the documents to the witness and appealing to the

record and/or common sense to show what the answer must be. If necessary,

call on the nature of the witness’ position and responsibilities to show that he/she

should know the answer. Otherwise break down the underlying facts and force

the witness to answer. A witness can say “I don’t remember” so many times that

credibility is often lost.

Re-examination is an often misunderstood process. It is not an opportunity to re-

run one’s case. It is a sort of running repair. It is purely to ask questions arising

out of cross-examination and to do so without asking leading questions. Again,

this is an art which seems to be rather lost. Counsel often tend to make

speeches themselves or to elicit a speech from the witness.

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I have to say also that, apart from giving counsel the opportunity to ask any

questions arising directly out of the Tribunal’s questioning of the witness, I do not

subscribe to the American notion of ‘cross on re-direct’. Otherwise the process of

examining a witness could have no ending. There should be evidence-in-chief,

cross-examination, re-examination questions from the tribunal and that’s it.

e) Discovery

Discovery is a pain and tribunals make great efforts to reduce the time and cost

of discovery, often with small success. We still encounter practitioners who insist

on the American “warehouse” style of discovery where every single document

has to be combed through in case there is the occasional “smoking gun”. The

Peruvian Guano concept of a document which may be relevant is not always

insisted upon by courts and should be used sensibly in arbitrations.

Somehow you have to strike a medium between the desire of a party to obtain

any documents helpful to its own case or undermining the opponent’s case and

the economics of unnecessary discovery. Don’t be surprised by the approach

taken to discovery in some civil law jurisdictions which do not see the need to

supply the opposition with helpful material.

f) Experts

Many arbitrators involve expert witnesses. Some European lawyers prefer that

the Tribunal appoints the Experts as the UNCITRAL Act permits. This procedure

has much to commend it. It saves the party-approved expert being accused of

being called an advocate for the party engaging him/her.

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g) General

International arbitration often presents a mix of values of national techniques and

cultures. Perceptions of fairness are not consistent. Various procedures might

be in order in one jurisdiction and not in another. Bear in mind that you must

operate procedurally under the rules of the seat of the arbitration. In common law

jurisdictions, you will usually find that these rules are pretty much the same as

those with which you are familiar.

The guerrilla tactics of some counsel are often merely irritants which delay,

complicate or increase the expense of the proceedings. It is best to ignore these

and to regard them as beneath comment. That way, you will probably earn the

respect of the Tribunal. Guerilla “light” tactics can include:

a) Making specious applications to the appointing authority to remove the Chair

on the grounds of alleged bias – usually when the Chair has made an adverse

procedural noting.

b) Frequent interruption of the opponent’s cross-examination.

c) General reluctance to comply with timetable requirements and procedural

rulings.

For a comprehensive treatment of “Guerilla Tactics in International Arbitration’

see ICC Austria Conference in the Topic 12-13 November 2010 and

associated material on the internet.

However, there are tactics that can cause substantial prejudice. It is beyond

the scope of this short paper to discuss these and I refer you to the

proceedings of the above conference. Substantively prejudicial tactics are

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usually best brought to the Tribunal’s attention, but only when there are

sufficient grounds to do so. Continued serious misconduct by opposing

counsel could be reason for upsetting the award but that is a rather negative

approach. See the IBA Guideline 26 in this topic.

I hope this brief presentation will provide some topics for discussion.

Ian Barker

Hon Sir Ian Barker QC, ArbitratorBankside Chambers88 Shortland StreetAuckland New Zealand

Email: ian.barker@xtra.co.nzTelephone: +64 9 309 6706

+64 21 634 686

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