 Good afternoon, dear distinguished colleagues, arbitrators, councils, professors, and all arbitration enthusiasts. I would like to welcome you today on behalf of the graduate of the Society of the University of Cambridge to today's Young Practitioners event, Co-organized with Young Arbitrators Forum of the International Chamber of Commerce, also known as the ICCR. ICCR is the forum that is open to the practitioners of international arbitration that are under 40 years of age, and its objective is to create a platform where young councils and young arbitrators can learn from more experienced professionals of career development and issues of interest in international arbitration in general. Young practitioners event is held at the University for the fourth time this year, and it marks the unofficial beginning of the main event of the year, the Cambridge Arbitration Day that starts tomorrow at 10 o'clock in the morning and to which you are all warmly welcome. The team for discussion for this afternoon is the clash between the common law and civil law cultures in international arbitration, and as you will see, our four speakers look after both common law and civil law backgrounds. Alice Martinez, Stati Agati, Anja Farron, Ruth Bern and Timo Tifonso, will discuss different aspects of what this cultural clash means in practice. And it is my pleasure to introduce you, Anja Farron, a former student from the University of Cambridge, who is currently a partner at Burby Michael Pisoner. Anja specializes in international arbitration for commercial and investment arbitration, and she focuses on energy and national resources sector and oil and gas. Anja, I leave the floor to you. Thank you, Lucy, and thank you for doing such a splendid job in organizing today's events, and thank you to all the other organisers in the room. Welcome. It's an unnerving experience for me sitting at the front here because between 1996 and 1999, I used to be the student asleep in the back row. I used to row for Downing and then cycle over here in my wet rowing gear and fall asleep during the lectures. So I've probably indicated to you how old I am, but this is the reason to go into arbitration. If you're doing arbitration, you get to call yourself young until you turn 40. So all of us here are still officially young. You may not believe it, but we are. So, as Lucy has said, this is an ICCYAF event. YAF stands for Young Arbitratus Forum. I'm the rep for the UK, though my term ends in June, so someone will be taking over from me. Just to give you kind of an idea of how many members we have in ICCYAF, worldwide, apparently about 12,000. In the Europe and Russia chapter, about 5,000. If any of you are not already members, please go online, sign up, it's free. If you do have an interest in arbitration, which I assume all of you do, there are lots of free events you can attend in London every year. Just to get an idea of who's in the room, how many of you are students? Hands up. Okay. Students here in Cambridge. Okay. And practitioners. Thank you. All right, so I'm gonna briefly introduce our speakers and then, oh, another thing to mention. Our events are aimed at being very interactive, so we are gonna keep presentations short so that you can ask lots of questions and we can engage in a lively discussion. So please, do feel free to ask even, the questions you think are stupid. Put your hand up at any stage during the panel. Right, so we have four excellent speakers. We're gonna start with Sardia Basi and she's going to be talking about discovery and document production. Sardia Basi is the ideal candidate to talk about the clash between common law and civil law approaches and arbitration because she studied in Paris, but is New York qualified, that's right. That's correct. And then we have Alexis Martinez. Sorry, should have mentioned Sardia is an associate at Clyde & Co. in London. Then we have Alexis Martinez. He is a partner at Squire Pattern Box and he studied in Paris and is French qualified but also UK qualified. And he's gonna be talking about advocacy and arbitration. We have Timothy Foden at the end. He's of council at Quinn Emanuel. He is Washington qualified, that right? And he is going to be talking about the role of council. And then we have Ruth Byrne. She's a partner at King & Spaulding. She is UK qualified and she is gonna be talking to us about the interrelationship between the courts and arbitration. So I'm gonna turn to Sardia who's going to start off. Thank you very much for the introduction and thanks for the invitation to come and speak. So I was saying thank you very much for the introduction Ania and thanks for the invitation to come and speak. I'm just gonna start with a small anecdote here. I moved to New York when I was, I had practice in Paris for three years and I was brought into a case when I started they were like oh you're French. So we have a case with civil arbitrators, French law applicable and it's a dispute on intellectual property. So you're perfect for this, it's in French. Can you, do you wanna be involved in the case? I was like yeah sure, that's perfect. And they're like okay so can you start reviewing the documents and I was like fine. And so they told me okay you need to log on to the system and start reviewing the documents. And I had never used such a software in my life. And all the other people I was working with were, didn't have an experience in arbitration but they were in litigation. They told me how is it possible that you've never done this before? And I was like well I don't know. I mean usually we just get like binders of document but we don't have like the sophisticated software we need to tag documents. And you know when I looked into the case I realized that this was very similar to actually US style discovery style case. I mean it wasn't exactly like that but I had never seen so many documents in my life. There were so many orders of disclosure that were already made. And literally we had to go through thousands of documents overnight and tag them whether they were confidential, not that confidential and you know write pleadings about additional productions for documents. And this is the first time I think in my life where I noticed there was a real clash between the common law and the civil law purchase and arbitration. So I mean because I'm starting I think one of the questions I asked myself to understand was like why is there such a difference of approach? Why is US style discovery so into documents and why are the civilian a bit more reserved about this? And I think you probably already all know this but it's good to remind it. It's like in the US you have this obsession for the search for the truth, right? And it comes from the jury kind of trial system and it's kind of divided by this when you have this pre-trial phase before the trial actually starts. And the logic behind it is everyone should have an equal access to the documents. So it really is everyone should have the facts in hand and then once you have all the facts out there whether they're in your favor or not then we're gonna start to kind of make a real case. The civilian approach is completely different in that regard. And I think Yves Durant said it in a better way. The idea is really how do you frame the dispute at hand? So in terms of legal issues and once you've got the legal issues formulated then the facts come in to kind of nourish your case. So and my colleagues are gonna speak afterwards the role of the judge, of the arbitrator is actually very different with regards to whether you come from a common law civil law approach in the approach for documents. So I do think that there really is a big divide between the common law and the civil law approaches in terms of discovery and document production. I think it's Finisier that called discovery the Frankenstein's monster in the digital age and it is true that the French, at least the French, I mean being French but the civilian lawyers are a bit scared when they hear the word discovery. In the UK we more talk about disclosure and I understand it's a much limited approach than in the US. And in arbitration it's very interesting because the procedure or rules are not the only rules that define how document disclosure is gonna be decided so there's also sometimes a substantive rules are applicable and as we're gonna discuss today it also very much depend on the background of arbitrator as I said, of counsel and also the case at hand if it's a very heavy factual complex dispute like the one that was involved with intellectual property then there's a big chance there's gonna be a lot of disclosure orders or in discovery type process going on. If you're having a case like the one I was involved and I just had a hearing finished yesterday where there were jurisdictional objection and exit case well, honestly facts didn't really matter at that point to the stage so it was not very relevant. And I think document production is a great example in arbitration where I don't know if that word exists but there's like a cement loss, a mix of civil and common law approach of document production and why is that? Well, because I think people got together and they're like, listen, we need to find well arbitration is supposed to be flexibility and certainty so we need to have harmonized rules for document production to give guidelines to the parties and this is where the IBE rules so the International Bar Association rules came in and there were the first rules in 99 then they were revised in 2010 and there's a big emphasis on efficiency and at the same time giving the tools for an arbitrator to make those document requests if they need to be but the difference with what I would say the US approach is that they have to be sort of limited to certain relevant documents because in the US the federal rules of civil procedure you can pretty much order disclosure for any documents whether there is a relevance requirement but it's not as strict and so under the IBE rules it's much more defined and so in that regard a lot of commentators and people say that it is a good mix between the common law and civil law approach the notion of good faith is also in there so there's debate as to from a civil law lawyer or from a common law lawyer what is good faith it's not exactly the same thing as well so that has not been considered very helpful but there are different tools that came into play so I don't hear you're familiar with the Redfern schedule so Alan Redfern came in with this tool of this is a table that you need to put forward with a description of the document and the nature and how relevant it is and the Tribal's comments et cetera so this is an agreed approach in arbitration where people use this tool to move forward with document production and as I said it very much depends also on the experience of counsel and arbitrators and what your training is really and we come to a conclusion where you find that it's nice to have a mix between both approaches and common law and civil law but you end up having a sort of a blur where you don't really know what your tribunal is going to do so it's a bit of inefficient in that regard where for example I had some cases where there were document disclosure or the order of documents sorry from the tribunal and the other side didn't comply and yet the tribunal didn't do anything about it and yes they have the power under the arbitration rules to draw adverse inferences but if you were in court there would be no debate that there were gonna be a negative adverse inference drawn or even a pecuniary consequence out of this failure to comply with an order that's not the case in arbitration and I think that's the point that's interesting to debate is whether or not we're not here instead of a march between common law and civil law approaches which ends up being okay it's a flexible approach but it's end up being a bit inefficient because you never know if the arbitrators what are gonna be the consequences of failure for document disclosure for example so there's also this I mean you always have to think about this due process paranoia that the arbitrators have they have on the one hand to comply with this interest of everybody should have the documents that they need to search for the truth but on the other hand they're like okay there needs to be an equal arms of the parties and they need to be able to respond et cetera and they're also afraid of challenges in arbitration so if they refuse an order for document or request by one party they're afraid that at the end of the day maybe that party will maybe challenge the tribunal so they're pretty lenient in accepting those kind of document order for document production I mean that's at least my experience but on the other hand they don't go until the end because if they order such a document order for document production and the other side doesn't comply then why don't they use the tools then to kind of draw the specific address in principle of that so that's a question I'm putting out there so I think I spoke more than five minutes because that was a big wide introduction I wasn't given more than five minutes but I'm interesting to hear about my colleague from this Well I'm going to turn to the panel in a second but for those of you that have never participated in an arbitration just kind of to give a little bit of background usually we put our party's case in a written submission which tends to be a fairly long document depending on the case but it can be 100 pages, 200 pages I've worked on submissions that were 800 pages and then you tend to footnote all the relevant documents and supply to the other party all of the documents that you've relied on so you will deliver your written submission with X number of binders with all of the documents that you've relied on and then the other party will do the same response so usually there are limited disclosure requests after the first exchange of submissions so it can happen at various stages during the arbitration so then you have that opportunity to ask for documents that you're interested in seeing from the other side that haven't already been produced with the written memorials so that's kind of just a basic explanation of how the documents come into the process and I wonder whether there are any thoughts on what Saadia said from the panel before I open up to questions I'll speak shortly about how I think that largely the process has been converged such that we all operate on largely the same grounds in terms of disclosure and all other aspects of the advocacy process and international arbitration but I'll say that you do bring up a point that I think really is demonstrative of people's backgrounds so I did a case for years against the Republic of Spain and at a certain point the proceedings were clearly led on the other side by a lawyer of common law background and then at some point it switched to a former state prosecutor from the government of Spain who had moved over to the law firm that was handling the defense of Spain in the case and in that instance we were hit with a jurisdictional objection one of which was that as claimants we had not established jurisdiction because we had not provided all documents on which we rely in our very first submission and if you come from a common law background you know that you only supply the documents that you want to put in your first submission the ones that make you look good you might perhaps put in all of these sort of perfunctory documents that establish jurisdiction but if you know that there's going to be a massive cost difficulty in doing so you don't so in this instance we had to put in three Spanish documents from local municipalities throughout Spain for each one of the special project vehicles that had held investment in solar power in Spain that was thousands so we would have had to submit thousands times three of all of these sort of permissions or permits from the Spanish government that we thought we don't need to do that you know the government will the tribunal rather will accept that we have established that these are actual investments until challenged well the other side said that the case should be thrown out then and there upon their objection that we had missed the chance to put these documents in and I'll tell you that we sweated it a bit because you always when you start to go through the advocacy process you always give some credit to the other side's case particularly after you've held their submissions for a long period of time they start thinking oh gosh if we don't establish jurisdiction because we didn't put in 33,000 of these certificates from end of Luzia then it's my ass I'm fired from this law firm well of course the tribunal came back and said this is nonsense this is an iterative process we haven't even you know this is the state of claim you will have plenty of opportunities to go through it and what's more because of the objection we put them all in but then we got this objection from the other side Spain saying well no you can't put them in now you had your chance and it was typical form over substance but that is the approach in Spanish law so as a consequence I had this really lovely task of every couple of weeks having to fly over to Madrid and sit with this partner in our Madrid office who Alexi knows quite well who would give me what Alex Ferguson used to call the hairdryer treatment every day because he thought we were gonna lose in this point because he came from a Spanish background in which you put all those documents in at the beginning and the partner had sent me over was a fellow American and he was like oh don't worry about it buddy it's fine it's fine but he wasn't going to Madrid he wasn't the one having to sit there and get yelled at by this guy with a double-barreled last name and told that that's not how we do things in Madrid and he was what's more what's called a state lawyer former state lawyer and these are like the top of the top lawyers in Spain and it fucking sucked you know you're already in a cool job as well oh I don't put it in so there is some convergence in that but it's a matter of approach the tribunal in that instance put that jurisdiction and the objection aside in an instant it garnered more than maybe perhaps two to three paragraphs in their award but it's reflective of the fact that when you get people who aren't kind of converged into the arbitration approach they will come to it with their relevant background and you see that from Americans as well they will compound disclosure requests and discovery requests on the other side or sorry, a proponent is what is the weird legalese term of art in the US legal system and it's you know thousands of thousands of questions that are all pretty much the same thing and the tribunal is there to tell them that's not how we do it in this field so you you're referring to the clash of cultures between council but what if you have a mix of cultures on the tribunal itself well in that instance we had one of the tribunal members we had two tribunal members who were from civil law jurisdictions and we had one who was Charlie Brower who is an American lawyer but has basically been in Europe since the early 1980s and one of the arbitrators in that case was new to investment treaty arbitration as a former ICJ judge called Bernardo Sepulveda and we got the distinct feeling that he was being coached on how things are done and Kaufman Kohler wrote the award and despite being a civil lawyer you have got a real issue and a potential due process objection if you're not allowing another party to submit documents that they didn't put in for submission just because what you're giving the other side some kind of tactical benefit it was silly but it was something that was silly that cost the climb probably five hundred thousand pounds and a lot of stress for everyone in keeping himself yeah, my trainee he suffered okay, any other, did you want to respond to this? actually it's it's a linked point I just wanted to say, and I'd like to hear from my colleagues on this have you ever found a smoking gun? yes you have? yeah has that happened a lot of times? actually quite a few times, yeah but actually it's something that you talk at the point arising from can you hear me in the back? yeah well it's being recorded, Alexi, so oh, okay no, seriously, they need the mic for the mic yeah, okay, they can't hear me okay, well it's something that when I was preparing for my presentation as you can see I actually included a discovery in advocacy because for me in arbitration it's something you use to get arguments against the other side there's also a key difference between say the UK and US courts and the French courts then the UK and the US at the outset you have to disclose documents relevant to your case whether they are in your favor or they go against you in France, you only disclose what you want to disclose so obviously you only disclose what goes against you now arbitration, the solution is a mix of the two you get to request a lot of documents but at the outset there's no obligation to produce something that goes against you so part of the game of document production is trying to identify and get from the other side documents that would be helpful to your case and would undermine their case and also part of the game is if you have any to prevent them from getting your bad documents so I thought it was an interesting point and an interesting actual experience in an investment treaty case we were acting for an investor against Mexico and the story went that way our client did everything right the government did not like us so they sent an intervener to manage the project that intervener did a great job, the project flourished so the intervener was fired and replaced by a new intervener who clearly had a job that was to close down the business and make us look bad so that was our case anyway, the Mexicans said that was really wrong that's not what happened however when we looked at the documents they sent us during disclosure we found a letter, an internal letter within the government saying that well the current intervener has not done the job properly and it is time to to appoint a new intervener who will do the job well and again this is where this sounds already quite damning right they want to find someone that's going to do a good job what is what is a good job is it to get rid of us and now another point here the document was translated into English with a Spanish original and if you looked at the Spanish original because they changed the ending of of now depending on whether it's feminine or masculine you could tell that actually they wanted to to name a new intervener feminine in your woman so that was clearly a hint that they already had picked the intervener and they had picked her for some very very specific reasons that was our spoken good and then that that excluded the hearing because very cleverly we we put the document in front of her and again very cleverly she refused to answer any question when she got the document in front of her we asked her have you seen this document before and she said you mean this piece of paper exactly no i mean this document well yes and no and that went on and on for about 15 minutes and she just killed her credibility in fact to to terminate a credibility she finished by saying that she had she was born a member of the the pay-e-pen party which was the party in power she had all her life been a member of the pen party and she would die a member of that rich party so as you can imagine i mean that that smoking gun and combined with that testimony made a great impression on the figure i found smoking guns but it's not just about the search for this smoking gun you can find documents took over a case last year where we were brought in just to do the hearing and through disclosure the lawyers that have been working on the case found these documents in which the other side was calling our client racist names inapplicable racist names they kept calling him a white man but he was from Egypt which he took real umbrage with these emails where they said things they were a Malaysian company and they were saying look i'm going to scare this guy off our tail with this email i put it down below let me know what you think i put some and then they kind of went into malay but we translated i put some shrimp paste in there which for those of you know anything about cooking from that area it's really spicy and said i'm gonna scare that white man a bit and was like what white man the guy's last name is his name is usury macamber like he's you know but um lo and behold what came at the first slide of our submission and our opening submissions uh large part because we didn't really have a case but we had to trade on something um not so much a smoking gun story is um and i thought it was really interesting what you said sadio about this notion that and i think it's definitely predominant in common law jurisdictions that we have this idea that justice is still about the truth and therefore you got to get all the documents because then you might actually get to the truth and i think there's a bit of naivety to us all if we really think that's what it's about but i had the unusual experience last year where i had run a whole case in a private international commercial arbitration um English governing the London seat but with a quite mixed tribunal very limited document production and very frustratingly having heard the whole case the tribunal then rendered an award refusing jurisdiction so then we rerun the case in the English commercial court with full on English disclosure and we really thought going into that arbitration we had everything we wanted we wanted to close down document production fit when it came to it all the rest of it we enjoyed the fact that we had this civil law tribunal that wasn't really going to go for a huge amount of disclosure what we found in those documents was unbelievable and really educational in terms of how the same case can look utterly different factually speaking having run us into very different processes so i don't know what that's really taught me i suppose not to make assumptions at the beginning of a case as to whether or not you have everything there could be more out there say to ask for more maybe more probably and maybe not be so uh cocksure that you wanted to nominate a civil law lawyer if you uh if you think there might be something fair enough are there any any questions comments from the floor come on someone must have a burning question what about the technology involved in all of this because you're the like the next generation so um you know when when when when i started out a lot of the time documents were being delivered to um council and to tribunal members as hard copy binders you you know i've been involved in cases where you'd be packing 20 boxes of binders per party and per tribunal member and as a junior lawyer that's it's a lot of work i stayed up a lot of nights checking page checking binders um but now obviously times have changed so um i mean not always but a lot of the time those hard copy binders are replaced with you know electronic just the case in the common law jurisdiction but i work a lot with our Paris office yeah what do you mean we need a document reviewing software no that's not how we do it come on well i mean also there's a real i think messiah covered it quite well there's a there's a very kind of laissez-faire approach to disclosure and we can ask the client if they have those documents but if they say no well there's really nothing we can do about it that's not the approach you take in in the common law jurisdictions because you most likely did your training in circumstances in which you're appearing for court that has coercive powers over you people can get sanctioned people in the US can lose their law licenses uh your client can lose their case because of a disclosure failure and digital forensics allow you to figure out now if something important should have been disclosed but wasn't um but where arbitration is being conducted out of a you know Parisian office might be a bit different approach um that said we can come to this later you tend to get found out about it when it comes time for the hearing if i may it also very much depends on the arbitrator right i mean if you're dealing with um old arbitrators which are the majority of arbitrators in the world today um honestly about 40 no i think they're about 60 to be honest um so there's a middle ground of those people um yes no they like paper a lot and um you know we can have a discussion on environment and arbitration as well but um i mean seriously those bundles i mean we still yeah the arbitrators we in all the cases that work but they always ask for the bundles and i think that was helpful in one of our cases where there were so many documents at issue and we had just you know printed out a huge kind it took the entire wall on our side of the ICC and we just wanted to show the tribunal how many documents that involved and i think there's there's a power to that as well if you show like the stacks of documents of filed and folders of how many documents this this involved you know as opposed to yeah we've got it on i mean on this usb q or something if she can't really really see it i actually think at the moment we've got the worst of all worlds because i mean in the most recent case i was working on we actually sent an email to the tribunal saying how would you like your documents delivered you can have them and hard copy we can download of them all of them onto an extra net site and you'll have 48 hours to kind of access them and upload them on your computers or we can send out usb sticks and the gem and helpfully responded we'd like all braved that was not the intention when i sent out the email so anyway okay any any any comments yeah one in the back can you introduce yourself yeah my name's Tetyana hi Tetyana i'm from Duckert and i have a question about how do you deal with issues of privilege or arguing that an document is privileged particularly if you do have a tribunal from a community background or a lawyer from both sides from different backgrounds is there anyone on the panel i'll take that one i mean in my experience in a way arbitration practice has defined its own notion of privilege that's neither the one you'd find i mean here it's very hard to talk about coming on civil law that's not the one you have in the UK not the one you have in switzerland not the one you have in France not the one you have in the united states not you know you have in Italy in germany spain wherever and it tends to be very cautious so you can argue both privilege and confidentiality so i've rejected applications for documents because a lawyer was copied in an email therefore a lawyer was somewhat involved therefore that was enough to involve privilege um also normally i've had a successfully fought back applications for documents on the ground that there were there was some sort of commercial sensitivity and if the other side were allowed to access those documents then they wouldn't find out too much about the company and since they were competing in certain sectors they should not have access to that in some cases that doesn't work they say did that case just do a data room leave the documents there but let some people see them and then leave um i mean privilege and arbitration to some of these are very fluid and generally very uh and confidential it's not really a privilege i'm quite more confidentiality it's a very fluid and very broad notion and it's guided generally in my view by tribunals only to be cautious and avoided any cost to to um to get something out of the bag that could potentially be seen as confidential privileged and again if i may i think the issue of gravity here is is one of you know one that is very interesting in arbitration i mean we had a case where the other side disclosed um we had another case with them and uh there was an award and we agreed it was going to be confidential and all the proceedings were confidential but that proceedings had stopped and it was a very similar case to another one that we had the same um same party and they disclosed the award they said you know oh look tribunal look at that other tribunal and this is what they they thought about there was a notion of force measure involving a certain state and this is what you they thought so this and we were like wait this is completely confidential we reached the confidential agreement they're like okay what's the remedy how do i mean how do you how do you do that and the tribunal had it so what are they going to do are they just going to ignore it or you know are they and usually the you know at the beginning of the proceedings the tribunal is like um you know we've got the documents it's relevant for determination we're going to you know bring it in um and and we can fight for it but then it's it's a fight before which jurisdiction that's the question right i mean we we agreed to confidentiality into terms of reference at the beginning of the arbitration proceedings their proceedings were finished so is it something that we're going to bring you know before the course of the seat of arbitration that finished or um in the current arbitration i mean it's not the same so these are very complicated questions um and often the remedy is is is an issue in arbitration i would say in my experience i mean i think the privilege is a really interesting question and kind of demonstrate um you know how complex certain issues can be in arbitration um and it could lead to a very complex kind of conflict of law analysis i had to think about how at one point how many different laws might apply to the question of privilege and i think i came to about 10 i mean if you think about all the laws that come into play um you know where the document was produced where it was exchanged where each of the council resides where each of the parties resides what is the seat of the arbitration what um uh what is the what is the substandard law and so on so there are lots of potential laws that might apply and and often actually a tribunal want to avoid that very complex analysis um and so there are provisions in the iba laws of evidence that that can guide a tribunal through through the um through the question but often they the tribunal will apply kind of the broader standard so there's kind of an equality between the parties so that there isn't an you know a narrower standard to find one council than there is to the other for example are you licensed in dc then you're bound by the dc ethical rules and i know the the bar council their gene ship you would love to hear this conversation you would find it so amusing because anyone that doesn't go into one of these situations bringing into it their own ethical requirements is likely to get brought up on and and i think that international arbitration is a very fertile ground for bar council and various jurisdictions to get involved because there's a certain level of flexibility that everyone seems to think is okay that wouldn't be if you were doing it in u.s courts um and it's a conversation i used to have with your boss or probably all the time back in a form of firm but no we we've gone through this yeah and also i mean that it also demonstrates the difference between common law and civil law approaches right because in civil law countries they don't have the concept of privilege it's secrecy or something like that isn't it which attaches to the lawyer through different approaches right privilege in common law tends yeah so in common law you look at what the purpose of the document was what type of document it is and that's how you define this privilege or not in civil systems you can and again it's very hard to generalize because the uk system is very different in the u.s system the french system is very different from the italian system but anyway if you're generalizing and in civil law you look at who sent the document or who got the document so it's not about the content of the document it's about who sent it or who got it that's all that matters so for example two french lawyers discuss what happened during the football match for some reason in the course of the case that's privileged because it's two lawyers well i mean if you're sharing anecdotes how did funny you told me about okay last time i was engaged in a heated application and exchanges on whether or not an expert was allowed to get their handwritten notes outside out of a data room because we said they couldn't they were confidential and they said no no no the rule says we are allowed to take our handwritten notes out and Tim is very familiar with who was on the other side and their argument argument was well they say it's unwritten notes but what they've done really is they've copied of a 12 page line by line and word by word was what was written in document so those are not notes it's a copy of a document anyway so we won that one pretty easily but we still had to spend about a month arguing back and forth and it cost a lot of money to there you are okay so any other questions oh yep one back um sounds like you're screwed that is one of the conundrums of our field and i think it's really difficult when you talk to clients about confidentiality and these sorts of things because you do get some bold tribunals that will say sorry we're not going to accept this and we will treat it like it's like unread and they will kind of obsequiously go out of their way in the final award to denote that that evidence didn't have anything to do with it but there's a million cliches you can use for putting a cat back in a bag and you can and the same is true of documents that may or may be used in a legal proceeding right so almost every jurisdiction and the icc rules themselves have this carve out in terms of confidentiality that allows you to pursue a legal right with the documents that are disclosed or submitted even some submissions in an arbitration and when you are up against unscrupulous parties perhaps from jurisdiction like russia that might want to start some kind of criminal proceeding in russia um you just have to sit around and deal with it because unfortunately you can't say well everyone knows what you're really doing here you have to treat this foreign uh proceeding as if it's on the same footing as the one that you're in and it's uh quite unfortunate um one of the things i know someone on this panel knows quite well does is he will go out to people in uh using their bar council finding out whether they are a member of the chartered institute of arbitrators and you know having a go at them and i think that's a bold bold thing to do and i i hope to see more of it frankly so you know maybe go talk to the folks in about the senior council did this okay so um yeah one more question i i'm yashna i'm a student from india i was wondering how do blocking statutes impact discovery and disclosure of documents in arbitration what do you mean a blocking statute so um i love that some countries have statutes which prohibit or penalize people from their country for distressing documents or things from their country in international disputes such as arbitration data protection and uh it's mostly found with civil law countries but i think Canada also has a statute for that development because um then if the people of um the arbitration is safe France then that would of course impact the man you wish the disclosure the disclosure department would also do an arbitration in order to well if you're bound if you if you're if you're a council from that jurisdiction and you're bound by that those kinds of laws then those are objections that you would would make if you were asked to disclose those documents um has anyone on the panel had experience of that particular question and then it would be for the tribunal to decide whether or not to admit documents yeah i suppose what you then have to if you really wanted the document if you really wanted the documents and that objection was raised in the tribunal rejected production of the documents you could go to either the court wherever the legislation exists or sorry i'm not sure if i'm actually going into the microphone properly yeah because really it's going to be talking about the interaction of the courts and the tribunal so you can yeah you can touch them later on okay so let's move on to um Alexi's topic of advocacy yeah okay it works um i'm so topic of advocacy so the way i approach this subject is i was interested in seeing how arbitration developed and how it was impacted by various legal systems so what i'm going to do is go through the solution in three systems uh the uk and the us the two common law systems in france a civil law system then see how that is reflected or not reflected in arbitration practice um so my my first topic was actually discovery but that's that's been covered so i i moved to um written advocacy written submissions now actually i i didn't really know much about the us but i was surprised to learn i prepared for this talk that in the u.s court it's actually unusual to have written submissions in advance uh i actually i don't need the power point i'll make it shorter that way and then hopefully stay within my five minute limit uh so in the u.s courts it's unusual to have written submissions they may happen if the court asks the parties to summarize a specific point they may they may occur if as part of a strategy you ask for a summary judgment or make a specific application but generalizing they actually are quite rare in the uk it's very different uh you always have written submissions um you have pleadings to start with in other words a statement of case followed by a defense but that that those two documents generally are just to set out your case you don't get into the details of the law you're not supposed to discuss the evidence it's just to give the the judge a general overview of your case and then just before the hearing you exchange skeleton arguments which are sent to the judge and those two discuss the law and the evidence but then you go straight to the hearing and and skeleton arguments are very much what they're called skeleton arguments they are they're really an outline of the submissions you're going to make to the court um so that last hope to the two common countries i've picked france has a very different system and france you the written submissions are the most important part of your advocacy you send all your case in writing it has to be very detailed you discuss the law you discuss the facts you enclose evidence you enclose whatever you want to put in support of your submissions you have several exchanges in fact in theory there's no limits to the number of submissions you can have with the other side and of course the judge can say it's enough and therefore it's sufficient but the time to make an impact on the judge is when you are writing your submissions this is the key key part of advocacy in the french court and what what what do you do in arbitration when arbitration for written submissions are as very much taken the civil law approach you generally have six exchanges of pleadings written pleadings which discuss the law which discuss the facts which often about expert reports witness evidence etc you start with a request for arbitration you follow up with an answer to that request for arbitration then have a statement of claim then you have a statement of defense then you have a reply and then you have a rejoinder and all of those come with all the the the law the facts the evidence all you want to put in dispute and that's very much also where you make your arguments and a very key point of the advocacy so for that that part you you can clearly see an impact of the civil law now if you turn to witnesses then the US you don't normally get a written statement of a witness before you go to before they go to court but what does happen is they are cross-examined very thoroughly and they can be prepared for cross-examination also very thoroughly but the other case in in in england and wales if you stop saying the uk in england and wales you have a written witness statement beforehand then you have cross-examination in the court and there's a very limited amount of preparation you can do for your witness in theory you're not allowed to do very much and in practice their little actually gets done in france witnesses actually very rare outside of criminal proceedings the general approach of the of the course and that's very much true throughout civil law countries is that witnesses are not reliable and it's better to have hard written evidence and that will trump every single time at least in the mind of the advocates anything a witness can say so witnesses are quite rare but if they do appear there is a written statement and then there's an interrogation at the hearing by both the judge and the advocates now what's the solution arbitration well the solution arbitration is actually almost identical to the the english approach you have a written statement that is submitted with the written submissions in advance so that is then followed by cross-examination at the hearing in fact hearings are usually centered under cross-examination of witnesses and experts so there we go so now we see arbitration being impacted by yet another system thirdly i'm going to talk about the actual oral arguments at the hearing the oral advocacy at the hearing in the u.s and in the uk here they are quite similar this is where this is your chance to make an impact this is where you discuss the law this is where you discuss the fact this is where you discuss the evidence with the judge and this is pretty key it can last a long time particularly in the uk like hearings last thing over a month where you discuss every single point in fact and law and try to convince the judge in france it's much shorter and the hearing is just seen as an opportunity to highlight the key points of your case and for the judge to ask any question they may have that arose in the written submissions so this here is a very big difference between civil and common at least france and the uk and the us and what did arbitration go for well here arbitration has gone for a blend although perhaps i would argue slightly more toward a civil approach what often happens is you have an opening submission which is quite short where the advocates highlight the key points of their argumentation and that's quite short and it's really just to hide the key points and for the tribunal perhaps although they often stay mum to ask any questions they may have and then after all the witnesses having cross-examined usually but not always have closing submissions and these are used by the advocates to highlight the most important things that were said by the witnesses during their hearing and they try to relate those things to their important points that they made during the opening so that's quite interesting system actually very much a hybrid of the common law and civil law approach although clearly much more focused on the much more impacted by a civil law at that point so i'll briefly conclude really you you see in document production you see a truly hybrid system in terms of written submission you see something that gives the importance to the written submission and therefore is more civil law in this aspect in terms of witness interrogation you could you have something that gives it love importance against a lot of civil systems therefore shows a clear impact of common law and in terms of the advocates or submission that you're hearing on law and facts again you go back to civil law and clearly a civil system so something's quite interesting really since arbitration has developed into some creature which is really a blend of common civil law approaches quite happy to discuss are there any questions and that's at this stage well what is the best i can give you my opinion i think arbitration has borrowed the safest practices from all all systems so in civil law systems you this law all faces some written advocacy so you have written advocacy in arbitration it's very important common law there's a lot of importance given to the witnesses the cross-examination of witnesses therefore in arbitration you have a lot of importance given to come to cross-examination of witnesses and then when it comes to advocacy that's that's perhaps where arbitration has taken a slightly riskier route they've gone for the shorter highlight the key points of the argument and give the judges or the arbitrators the transverse questions route but overall in my view of course it's the best but i think in summary they've gone for the safest approach possible if i may just add to that i think it's difficult to answer if it's the best practice or not because it really much depend on every on a case-by-case basis most of the time actually the parties agree in advance you know how many you know exchanges they're going to be having you know the amount of evidence put forward are they going to be any witnesses no witnesses you know how many hearings are they going to be verification of hearings or not you know can you do direct examination or is it just going to be cross-examination things like that are usually discussed in advance are they going to be closing submissions written submissions after the hearing or is the tribunal satisfied with you know just the oral closing submissions so this kind of depends of course on the case right but also on the background of you know the tribunal and and council i would say for example if you're having an arbitration in london sometimes you know it's very very different to to an international arbitration that you would do in paris for example because you have members of the tribunal or you know as judges who used to sit on the bench you know the the both council are from you know our qc barristers cpr rules are applicable so in that you know in an arbitration like that how can you compare that to you know another arbitration in paris where not it wouldn't necessarily be more civil law applicable but it would be more a blend i would say of you know civil and common law than an arbitration purely maybe you know orchestrated by common lawyers maybe any other questions yep yeah i mean i will answer that question because i was involved in the ukos arbitration so for those of you that don't know that's like the highest value arbitration of all time i was actually on the russian federation side and i was i i left before the award came out in the ect case so when i found out that 50 a 50 billion award had come out against the russian federation i emailed in a a fellow um ex-colleague and and said great we are now responsible for the greatest loss of all time really since then the award has been challenged but um the submissions in in those cases there are several related arbitrations were about eight to nine hundred pages with thousands of thousands of footnotes and thousands of documents and i i mean the the tribunals referred to the fact that they found this unhelpful and actually it was almost embarrassing working on the case because you realized that no one was ever going to read the thousands of footnotes and at that time our hands were kind of tied because we were co-counseling with another law firm um and um so there was disagreement as to kind of what length of submissions we were going to provide and so on um and then there's this fear by most of us where we're where we're representing a party that we're going to we're going to miss something important so there's kind of taking the cautious approach just to put everything in just in case we miss out something something important but i agree with you i think that um uh we as council should uh be much more disciplined and produce shorter submissions um uh to help the process help the adult the tribunal make it more efficient but that will depend on obviously the case okay and then i do a point actually uh i mean i agree i mean actually is to confirm what ania has said we were a few years ago asked to do the return arbitration in a case where our client had sacked their previous council because they lost billions in the previous case and actually well bankrupted the company literally the company had to settle the case by giving the large amount of his shares to the winning party they were not happy with that council which is probably the most famous arbitration firm i know uh and they came to us but so when that can happen we're why did they lose what happened so look what we looked at what had happened in the past so that very well known firm highly respected and very talented had written very detailed and excellent submissions but they were humongous there were thousands of footnotes they were extremely complicated and they're very hard to understand and the arbitration was about the price of gas very complex topic very hard to very hard i mean it's incredibly complex the other side had produced fairly muddled but very short submissions decided one but they kept repeating every page or so the price of oil is the element that directs the price of gas and they repeated that at least almost everywhere and at the end of the day the tribunal said well it's the price of oil directs the price of gas therefore the other side wins and they won absolutely everything absolutely everything and in fact actually that's the reason they won one reason my view it's just my opinion why they won absolutely everything and i'm afraid i can't give you any more details on the case but the firm that lost had not articulated any backup position so once they had lost on the main point there was no backup to for onto the tribunal to decide to split the baby so they are the only data they had was the one that had been provided by the winning party so they gave the winning party absolutely everything and then had dire consequences so i mean just just follow this this next one point that alexie made i i actually had the opportunity to sit as secretary of her tribunals also and that has taught me so much more than acting as council actually because you're on the other side and you actually you know any secretaries are not you know i didn't draft the award or anything like that but you still do help you know very much the construction of the award for the the tribunal they're going to make a decision and frankly what happens is you take you know you take both of the pleadings and and as alexie said you take the less complicated one to create your structure right so you can i'm not saying that you know you copy paste elements directly but your students you know a lot of your students here so when you start writing a piece the structure i've seen awards that look a lot yeah but when you when you start writing a structure it kind of defines the way you're going to go in your in your in your thinking right so so it really has a huge impact you know the clearer your your written proceedings are the sharper they are they're on point the tribunal is going to love that uh the longer they are the more complex they are often they always ask for i mean in my experience they ask for a last like you know posterior submission and where the tribunal asks for five six questions and they're like okay it's going to be limited to 30 pages and this is this is the last set of of writings that you are going to produce and and what happens is that they only look at these last pleadings you know sometimes too at the moment of drafting the award and it's so frustrating you spend so many years advocating stuff you put it so much evidence forward and look at the icc awards that you know icc or any other awards that are public i mean do they go in so much detail honestly a review of the evidence sometimes it makes me wonder have they looked at all the evidence before you so yeah it is overwhelming my response is uh absolutely so you should be careful with that well i mean you're the tribunal are obviously human so you've got to when you're writing submissions or presenting in front of them you've just got to bear that in mind there's only so much information that you can absorb any other questions yeah i'm sure we'll keep going on just to keep impact so they have a different way of working and they do look at people so well then i supported about both the council and assisted by the council and assisting the arbitrator and arbitrator at the time and i wonder i i almost worked as a secretary effectively and the tribunal because i was the one who read everything and worked through everything for quite a long period of time and so i wonder when i used to sit there and listen to the parties arguing on the conference call and say you know we need a chest cover we need you know don't want closing submissions or we want closing submissions or we want first hearing briefs what would you say is probably the best way to go in terms of whether or not you should have a closing statement or whether or not you should just simply leave out the equation and push for a first hearing brief because i think you touched on it and my question i get is i'm wondering is it best to sort of leave a lasting impression in a separate document that they'll look at and sort of just push everything else in the cycle this thought was so much terminal for the last few weeks or months and is it best to just go with a quick hearing brief again i mean i probably not gonna like the answer but it's very relative right it really depends on your case i mean i just had a hearing um yesterday and i felt like the hearings went pretty well for us so i don't want to close like a written submission right i knew out of the tribunal looks at the transcript is the last stuff and and we did well and the other side didn't and if they're given an opportunity to write you know submissions again um maybe they'll make another point that's stronger that didn't come out and they hear it you know what i mean so it really depends what where you stand in your case i mean that that's my view you know personally i well there's this thing that you feel at the end of a hearing where you kind of want to die all the adrenaline into your body so the notion of then writing a hundred pages at that stage on everything that's happened is just horrendous um but you know i think it's very much dictated by the quality of the advocates opposite you um if you have had oral advocates opposite you um and hopefully you don't have this happen to you often if you feel have done incredibly well and possibly better than you then maybe you do want to written submission to shore up your position um a lot of the time you think you've done better than them and actually you want to to leave it as is a hybrid we've often gone for is take a month and then come back with the tribunal on a day and do an oral closing involved we've done that well i mean because the other the other thing is i mean it is very painful having to wear a post hearing brief because you're basically repeating everything that's happened um but it's also pretty painful preparing for a closing argument if you've been in hearings for a week or two because you probably haven't slept in days um and then you've got to like stay up on the last night whatever to um to prepare the closings um sometimes it's good to have a day off sometimes you can ask for maybe this time to have a day off off to the close of the proceedings and before the closings so you just have that one day to prepare for the oral closing or as Ruth said you can ask it depends where the hearing is if it's very far away probably people won't want to convene again in a month's time but you know to have that um time to go away think about and then come back and do an oral closing so that there are lots of different options anyone else any other questions i wanted to ask maybe on the other scale of the complexity of the volume of proceedings are expedited proceedings so how do you think the procedure changes and the advocacy changes in expedited proceedings is it more civil law approach then because it's mostly written or is it a different system i've had one emergency arbitration and then the icc rules um well actually that's somewhere where the civil law i mean as far as i'm aware that is the uk course i can speak with the uk sorry the english course and the french course are nearly identical you have a very short amount of time to produce britain a britain application and then almost immediately you have to argue it in person before the judge and and the judge will ask you questions whether you're in england or whether you're in France um and actually the icc emergency arbitration is very similar you uh you've got how many days you have i think we had four days for four rounds of proceedings basically 24 hours between submission followed by hearing the next day that was half a day and then we uh we had the uh the award two days later the intern award i think what i learned last actually the choice of the arbitrator is extremely important we had an issue because we um we our client was extremely large multinational and the other side was another extremely large multinational so basically every single emergency arbitrator was potentially available was somehow conflicted um so the icc apparently they told us later contacted 18 different lawyers before they managed to find one who had no conflict um but and again that goes back to the key between the common and civil law the law applicable for that application was swiss law and our arbitrator was an english judge who had just retired from the english courts and we had a slight issue which was that the remedy we were seeking and which you know was perfectly available in switzerland was not available in the uk um so we had to decide whether we were going to challenge that arbitrator and then it would take a lot more time to get someone um and we may not get someone who liked more or we would just have to go for it and so we went for it uh but we were a bit disappointed by the decision because we found out that swiss law looked a lot like english law when it was written by an english judge so i think it's fallacious to think that um an expedited procedure will result in shorter briefs and more succinct statements of case there's some old i think benjamin franklin quote about uh takes a very long time to write a short letter and um that's certainly the case in emergency proceedings because you just have this tendency to throw it all in there and hope that they can discern in that more voluminous pleading that works but you know in contradistinction work expands to fill the time either what's required is discipline on the part of counsel and the tribunal and uh i have a dear friend named class riker who sits on a lot of tribunals and he has been putting in page limits and coming from the american milieu where the most voluminous submission you can do and and say the summary judgment stage is really 60 pages i don't see any problem with that no granted i like you know a decent hundred page memorial that has really good pacing and sets out the cast of characters and a nice factual story before getting into the legal bit but the 800 page submission that ania referred to i saw it recently in a case um submitted by breton pratt in paris the 800 page submission well that's ridiculous that's longer than Tolstoy's warden peace almost almost i think it's like 200 pages shy why what what could you possibly say in that amount of space that would be effective advocacy with the first thing i did when i was a student and i would get a reading assignment it was flipped to the back to how long do i have to go because you know we only have so much time i'm not sitting there thinking oh i've got this submission in i've got a nice fire glass of whiskey all night to go through this thing no it's nonsense what do you need to say 800 pages it's ridiculous i think it's very interesting that you mentioned yuko's ania as well because i don't know if you're aware but there was uh there's a very interesting challenge to uh that was made to the secretary uh the fact that there was actually an in essence four members of the tribe in a sense of three right because i think the secretary of billed so much hours so many hours uh but you know i understand why there are so many documents in cleaning but that in was over 10 over 10 years that's an important point to putting on yeah 10 years three million dollars in 10 years yeah uh we can build three million dollars in six months right that's true that's true yeah you work it no i just want that more than gets a really hard time it's 10 years yeah no i mean the challenge didn't succeed no no i know i'm not saying that you know it was it was a good challenger bad challenger i think i'm just saying that it is true that you know we were talking about human beings earlier and it's just the tribunal are human beings and even if you have a from a secretary or anything there's no way someone's going to be reading your 800 pages in detail thoroughly and you know it's i don't think it's a it's a great approach okay any other questions right we're going to move on to role of council that was okay so the role of council i've basically mapped out already most of my thoughts on the role of council i'm asked to talk about the different approaches different roles of council between the civil and common law jurisdictions as it goes to international arbitration in my short answer if you all want to get to the pub for st patty's day is there is none i i could i could put the mic down now i don't think there is any now we've discussed earlier the important kind of backgrounds that people take into say disclosure but if you're doing your job properly my thesis is it doesn't matter what your jurisdiction is you will approach international arbitration seeking to get every possible advantage for your client and as a consequence we've seen the dispute resolution system converge and i would actually say i would disagree with what alexi was saying earlier that you see more of a civil law approach in certain aspects i think it is basically representative of an american english hybrid approach to disputes and i don't say that with any pride as an american i think that's the way it is aside from the fact that the first time i worked on a memorial i looked at 200 pages and thought wtf why why is it so long why is it to have so many footnotes that was anathema to my background as american lawyer everything else about the process is incredibly americanized and this is controversial but i'm telling you is the way it is you the redfern schedule is a tabular way of propounding disclosure requests nothing more you would read columns instead of reading paragraphs if you do cross examination with a civil law approach in mind well you should probably be fired by your client because there is no civil law approach to cross examination there's only a common law approach to it and of course there are various different approaches to doing cross examination across the uk australian new zealand and other common law jurisdictions but an effective cross is an effective cross if you don't have any background for cross examination as a civil law lawyer well you're not doing your clients the job your client needs i have to go teach on monday at sciences po university in parents on cross examination and i'm looking forward to it because otherwise these folks there's no training for them on this but they need to learn how to do it and over the past few years i've had the pleasure of working with two people that i think are very very good at cross examination one's a guy named philip pencil in paris and another guy's named steven yagash in london and they have pretty different approaches to the way they do it philip as a frenchman is incredibly good at cross examination so much so that last year they put out a book through gary on the guide to advocacy and they wrote back to back chapters on the approach to advocacy as a civil law lawyer and the approach to advocacy as a common law lawyer that's largely focused on cross examination there is no difference between those chapters if you ever get the book i'll spare you the time read the second one because there's there's literally nothing you know i've worked with alexi for two years aside from a market difference in quality between the two of us there was no difference between the way that we approach doing these cases and why is that it's because we're doing it in a natural operation it is a melange it is a blend of both we've already discussed disclosure obviously people will take different attitudes towards it but like i said when you get to a hearing stage and a document comes out say one document that you've produced that you somehow or another got a handle on but it is clearly of an email conversation it might not be in the chain but logically speaking you've got something on the fifth of april and then you've got something on the seventh of april and it seems like there's been a conversation that's going on in between those two dates but lo and behold the other side hasn't submitted or disclosed the emails that go on to that well you know what's happened there someone has taken some sort of different approach to jurisdiction and what do you do then well you get really american and you hammer them on it where is this how could we haven't seen it and sure enough the tribunal they're not dumb they will want to see it too for all they know the entire case could hinge on it so they're sitting there saying oh yeah it would be really good to see that document and the other side is going to get asked for it and then they have a choice the choice is okay we submit this now with our tail between our legs or we i don't know try to make up some excuse for why we didn't put it out forward or we say it doesn't exist and then you have the possibility of getting hit with an inverse inference adverse inference sorry and so i think that that different approach to disclosure is just one approach is good and one's bad it's that simple you have to do what is best for your client and in the system that has whether it be fortunate or unfortunate sort of diverged over the past 15 to 20 years you have to be the best advocate that you can be and i can tell you right now that you're not going to be your best advocate by saying like oh i wouldn't ask that question on cross examination why if you're going to get a good admission out of them and you can do it in a way that isn't rude or you know you can do that but then you that's one thing where there's a bit of a sensitivity you know you can there's an old adage as an american trial lawyer that when the law is on your side facts are on your side you bang on the facts and when neither is on your side you bang on the table i can tell you that you know that approach does not fly when you've got some staunch old civil law lawyers they will find it really uncouth um you know these are the same people mind you that wouldn't turn over documents that they thought were responsive during the disclosure process but please by no means be rude or obstreperous with a witness because that's just bad attacked um but that's what i have to say i don't think that there is really a difference i think we've all kind of merged together and i you know challenge people to say otherwise because i think we can always find that there's perhaps a uh a decent argument to the contrary in certain sense of so what that's different well okay but is there a procedural advantage to be gained from doing it the other way any comments on that i agree somewhat with what you say um i do think that we all merged together to a certain approach but in terms of style of advocacy i've really seen huge differences differences because counsel were trained in certain jurisdictions so you know when i was a g people did their own advocacy there even though they were civil trained and but they were from a certain generation um also where things were done in certain way and even though you know the tribunals were international they kept you know their kind of french way of doing things but it was you know i thought it was pretty effective the way they were doing it in the u.s i was working with an ex-prosecutor so you can imagine the style um and it was you know very prosecutor style and and um there were a lot of hearings where i was with him where the tribunal was like what are you doing you know like calm down this is not how you treat an expert witness this is not how you treat a factual witness and it annoyed them you know because they thought it was a bit you know and that was and in in in london um so that was a complete um i surprised from i just didn't know there's this you know historical difference between you know solicitors and barristers etc so um you know the traditional firms in london um the law firms they work with counsel that meaning they have barristers in their team um to argue the case so that that means something that means that you know they think they can't do it and they need a professional advocate to advocate their case which is completely from you know at least someone who has practice in paris completely ludicrous why not be able to advocate your case when you've seen the facts and everything you've worked in for so many years and that that's the london approach and i think well i supposed to say not necessarily the london it used to be the london approach the majority of firms practicing in arbitration at the moment will do their own advocacy so don't want anyone who's keen on doing that was to be afraid that if you you know if you qualify here that you're not going to get to do the advocacy there are most most arbitration practices are now doing right now i think that's true i think that's true but i do think that the fact that you know you have to make a choice whether your solicitor or a barster at the beginning it kind of guides people's might maybe not in arbitration at some point you know of how comfortable they are in doing it and and i think at the end of the day again it really depends who your tribunal is maybe you want to take a certain approach with a civilian you know tribunal um which you wouldn't take with with someone who's from from texas or or you know you would qualify i wouldn't argue the case the same way i agree that there are styles and everyone has a different style and some styles are going to be natural to you and sometimes you have to put one on because you know that your audience the tribunal needs something from you that you're not in my case they typically don't need someone who's an actress in from philadelphia to get up and do some lame you know a few good men uh imitation but what i'll say is that there's effective and there's unaffected ineffective sorry and and in one particular instance to say that some styles are some styles are antiquated overly verbose and unnecessary and you know for instance i will always be abused by advocate telling the tribunal that they submit something well no shit that's why you're standing there who else is submitting it why why engage in all of this extra verbiage and you can't tell me that there's a single tribunal there that won't find you excluding those words to be just as effective as if you put that verbal crutch in there it's true i mean why do we talk when we're advocating in a different way than we talk when we're trying to convince you know a family member or a friend to do something i mean obviously we don't drop the f bomb as much as i typically do but you you will go into it and you don't need to say well you know serves i submit to you why does that make what you're saying better does it add any substance absolutely not and what i've seen it the most is you get advocates particularly senior advocates in india who are engaged in this rigid formality and you sit there and i sat as a secretariat on the tribunal once but there was a really senior advocate and it took 10 minutes just to get to the point because there was so much throat clearing um so whilst i completely agree that there's you have to tailor your style to the audience there's an effective and there's a fact a couple of points just to what ania said in defensive uh london practices at my firm at king and spaulding we do all of our own arbitration advocacy but also all of our own court advocacy in house we don't go to the independent bar unless it's a really niche area and we have three qc's in house and several court advocates in house so don't be discouraged about london the split profession its role is decreasing and say to the extent that you want to be barrister for some reason and but i was going to tell an anecdote which was um i um participated in the discussion along these lines a couple of years back at the aza below 40 so the aza is the swiss arbitration association and it was all around differences between civil and common law approaches in advocacy and i wish i had the slide with me today because it was a piece of transcript from a hearing um that i'd participated in um swiss chair of the tribunal pierre carar who's quite well known um and there was an english barrister a pretty old school on the other side cross-examining a witness um who was i can't remember exactly where he was from but he was quite hot headed and the english barrister on the other side kept saying i put it to you so that you didn't do that i put it to you that you were there i put it to you that even though this document says this you were doing that and the guy kept exploding because he was essentially being accused of lying and then you've got this wonderful piece of transcript where pierre carar as the chair of the tribunal very very weary he says i've got to explain to you that he's just doing his job as he understands it to be there's this rule in england where if you want to tell the tribunal that somebody has lied you have to actually say it to him cross-examination in all fairness to them before you can then make the submission that they were a liar and what i found really interesting and i don't know whether you would agree with this there was a dc practitioner there whose name currently escapes me who said good god in the u.s if we want to say somebody lied when they were being cross-examined we won't say it during the cross-examination we'll say it afterwards but there is this archaic rule and and it's still applicable in in english court proceedings that if you want to you know impugn somebody for what they're saying or really contradict them in your submissions later on you have to have given them the opportunity you have to say i put it to you that when you say that right there it's not the truth um for what it's worth that's the answer yeah i mean i think what that takes us to is i think we're starting to see a well it's been emerging for the last few years we're starting to see emerging an international culture of arbitration and there are some some people who are very much a product of their local school of advocacy but there also are people all around the world who've learned from international practitioners who've done arbitration for a long time with themselves after the international approach and that approach is is very similar whether you are in london as on new york and it does exist but but you're right i mean everybody's right you still have people who are a bit outsiders who are not as familiar with the system and uh if they're having trainers bysters then they will argue before an international tribunal as if they were before a uk court and that's not effective or not as effective unless your tribunal is unless unless a tribunal is made up of retired judges or qc's no but even then they're they're not going to find it more effective because you go engaging in that kind of i think judges if they've learned i mean if they come from a new uk background and they uh and they have the uk approach them is their first time seating seated and sitting as arbitrator they will expect us to collect arguments they will expect uh very much to follow the uk approach very recently i had some fun anecdote actually we had an international tribunal so the chair was le ron levy so very famous swiss arbitrator the uh the court chair was westie park very famous american arbitrator and the other coach was a very well-known english qc and the other side makes made some interesting arguments and one of the things they did at some point is they put up a slide on the screen which with the words of the contract as they should be written if we were going to win the case and then the qc when he saw that jumped out of his seat and said that's not acceptable and it turns out in arbitration that's very acceptable so he ended up just saying steer clear of the english courts and he had he had been appointed by that party who used the slide and that's when actually the party responded well believe me sir i was still very clear of them but then but there you go yes if we all have different approaches when we where we start from but i think at some point they blend in and there they really is an international arbitration way of doing things and uh and you have and you have to debt to your audience and i think you see it um i don't know if any of you had sir gordon langley as an arbitrator he was a former english commercial court judge when he first left the bench and became an arbitrator he was very very english court in his approach and very interventionist with butcher advocates asking him loads and loads of questions exactly as he had been on the bench and now i don't know how many years have been six seven years and we as a firm having not nominated him he was the wing for the other side we've had him a couple of times and he's very much changed and adapted to the culture to the extent that you look at him now and you think he's a genuine genuine internationalist and so you see the process having its influence on people who you think might be really quite set in their ways okay any more questions before we go on to our last perfect okay over to you rie okay so um it falls to me to talk about the intersection between courts and arbitration and the extent to which there's a common and civil law clash there and i know i'm a lot of five minutes and we're getting close to the drink so i shall be mercifully quick and i wanted to talk about two points of intersection and and two really quite short points so the point of intersection during or prior to the arbitration where you may need court support and then the point of intersection during enforcement so when you want to enforce your arbitral award and and in relation to during or prior to the arbitration i was going to rely upon an anecdote and i must say start off with i am a pure common law lawyer i am an english lawyer by background i do a mix of commercial arbitration and english court work lots of english court work in supportive arbitration so to the extent i make observations on civil law jurisdictions and one of you is from there and i'm utterly wrong jump up and down its house and but in any event a couple of years back i had a case which was london seated um italian governing law substantively and so we had italian code council the parties were in various different places and it was all about the supply of luxury goods which seemed initially very exciting but then got old quite quickly unfortunately and and essentially the other side was threatening to withhold supply of these luxury goods with potentially devastating effects for our client and we looked at getting an interim injunction and we thought about some kind of pre-arbitral emergency relief we thought about the malign courts and we thought about the english courts and there's a tendency when people are talking about injunctive relief and common law versus civil law and certainly in europe when you look at england we're almost like the black sheep we have these extraordinary powers anti-suit injunctions worldwide freezing injunctions that courts in other jurisdictions around europe think are exorbitant think they go too far and but really in that case i started to see the limitations of our system in the english courts because we analyze side by side should we try and get a pre-arbitration injunction mandatory to prevent these guys from cutting off the chain of supply should we go in malan should we go in london um and i don't know if any of you have practiced english litigation um or studied english litigation but just to give you the run of it if you're going to try and guess a injunction prior to an arbitration for something of this kind you're going to apply exparse which means you are going to have to comply with a duty of full and frank disclosure which means you will file both a witness statement and a skeleton argument in which not only do you make all of the arguments in favor of your case but you have to dream up every conceivable argument that the other side would make if they were there and disclose those arguments and that's an onerous obligation um there's a decision um borah and jibouti of mr justice flow in the commercial court and i don't normally recommend reading and it's it's a very interesting piece of reading and it's a salutary tale to lawyers but it's an instance where someone was found in breach of his duty of full and frank disclosure and it's it really is sobering reading so that's an exorbitant obligation in addition to that if you're going to get an injunction in english courts your client is usually going to have to give a cross undertaking in damages which basically means if it turns out at the far end of the case that the injunction was wrongly granted there needs to be a pot of money set aside in courts to cover the damages of the other side that they may have suffered and then an additional point is that in guessing an injunction in england you will have one hearing exparsi to get the injunction you will then get a return date by which point the other side knows about the injunction and there's an interpartis hearing where you have a further price date at all and the cost of these things can vary wildly but suffice to say that it is significant and our counterparts in Milan said well if we want to get an injunction our biggest problem is it's august in Milan and most people are away but we'll have to file a written submission and then we might be seen in camera by a judge for half an hour and then hopefully we'll get the injunction and we think it will cost this which suffice it to say was a fraction of what we had looked at and i don't want to do myself out of business here in London but it was understandably much more attractive to the client and sure enough the submission was filed there was a half hour hearing for a female judge who was dragged away from her vacation in august in Milan who basically bashed the parties heads together and said i'm giving this injunction and you have two weeks to settle this matter or else i'll give it permanently and it was substantially more economic than its london counterpart would have been as i say i'm not trying to do myself out of a job but and what was also actually a lesson for me there and i don't know if we have any italians here but the italian courts tend to have a bad reputation in so far as supporting arbitration is concerned but that was a glowing example of a very positive experience and so then turning to enforcement which is the other point in time when you have a heavy degree of intersection between the courts and arbitration and i'm going to agree with Timothy that i don't think there is a civil and common law clash here i actually think by and large you see a universal approach in sophisticated jurisdictions to the enforcement of awards and to issues like public policy which are typically raised in defense of the enforcement of awards and in so far as there are distinctions i don't think they're drawn along civil and common law lines so for instance there's a lot written about the treatment of decisions sorry of awards that have been annulled at the seat of an arbitration and the approach there differs from jurisdiction to jurisdiction so for instance in the UK and the US if an award has been annulled at the seat of the arbitration that judgment will typically be upheld in the courts of the UK or the US but the same is true in the Netherlands which is a civil law jurisdiction where it's not true is France because they take the view that the arbitral award almost stands alone so there is a distinction there but it's not drawn along civil and common law lines and so i think it's possibly too simplistic to try and think about it in that way when it comes to enforcement actually particularly in that case because the US is actually a division through which there are circuits in the US because some US courts actually agree take the view that even if the award is not at the seat they can still enforce it and some disagree so even within the English the the two big common law countries there's a disagreement at least internally well that's split amongst the circuits in the US but i agree i think that when you get into if there's any divergence there it's more along the lines of kind of western countries and then also pro arbitration and sort of kind of arbitration agnostic jurisdictions and i think largely about the Middle East for instance where enforcement of awards is not easy at all because the public policy exception to the New York Convention is read very very broadly whereas if you look at i think it's the chromoly decision in the US that says that public policy exception should be read incredibly narrowly and other courts in in the west have sort of taken that view so but even within sort of this western milieu you have distinctions so i take a case i worked on the dala decision which a decision an award that was not enforced in the supreme court of the england and wales all right actually no that is the uk um but was enforced by the court of cassiana believe in france so and i think there was some competition there to say hey we're more jurisdiction we're more friendly arbitration jurisdiction but what's interesting that piece too that the uk supreme court was applying french law yeah but remarkably when the uk court applies french law it looks a lot like english law it does but i'll say this um what a lot of people miss about that case is if you read the award on jurisdiction from which everything flowed it was worthless i mean if if an associate had brought me that draft award and said oh this is what i think we should do on jurisdiction here i'd probably have to have a talk with hr about whether that person should still be working at the law firm and this is what people had to enforce so if you look at you know the high court there and why they took the approach that they did and then you get up to lord mans and lord mans looks at this thing and says well i'll apply french law it's easy for him to do so and i say this is someone who was trying to enforce the award okay any questions no well we have 10 minutes to go and i'm told that we can't go early because cocktails are going to be served on so we're up six but if i just in just before we end i mean does anyone have any kind of questions about a career in arbitration you know much more generally i mean you can also see it she's still one question on arbitration anything that you want to know yep very fascinating and you always have all these different first stations and laws applicable and just wondering how do you deal with this in practice do you just have like really international teams all the time or do you just deal with that that's exactly tell you about at some point you almost always get local counsel to work with you if the applicable law sorry the sustained law is is from a different jurisdiction at the extent to which you use them and rely on them will be will differ depending on their quality and qualities are quite disparate across the board you know i've worked a lot over the past three years in various jurisdictions in africa we've had local counsel that we've basically been allowed to take a back seat too because they're really good and then other jurisdictions that come from sort of an english colonial background where we basically need to do all the legal research draft the legal submissions and then send them to them and say does this comport with the law and say tanzania that broke away in 1961 and i'm you're laughing because i think you've had similar experience yes i don't take it in the very space it's yeah but um again you know you do have jurisdictions we have a case in slivernaut where we can rely on local counsel to do everything so it just depends on the quality so i mean local counsel or a lot of us are in international offices so we may well have an office based you know in in a jurisdiction i would say the same thing applies when it comes to some of these multi-jouristic law firm i need some lawyers from all over the world and that is one of the best things about doing operation if i may just add um i totally agree with everything that's been said if you have an international law firm it really helps um you know to work with you know your local offices there if you have it also depends if you have a case that's going on for several years or a client that's been there for for years and usually what happens is you try to recruit someone who's from that jurisdiction because it helps even just for the language purposes for example you know because at least you could check internally you know stuff that you don't want to delegate everything to the local lawyer so some some law firms especially the US law firms in London have interns um that are very that are paid very little but work very long hours um and so actually let's say you have a you know a dispute that's spanish speaking and you don't happen to have a spanish speaker in your team you could just draft in some you know spanish students or you know newly qualified spanish lawyers at in his interns and get them to assist them in the speech so there are different ways of dealing with it it's a great point oh sorry no no go ahead and the other thing and i'm wondering now if this is something that's fallen out of practice because i haven't seen this in a long time is you used to see uh international law firms or English law firms or US law firms running disputes and say the governing law was Kazakh law and each side would have a Kazakh law expert and i don't see that as much these days but it's one way of dealing with it's not very effective but it is when we're dealing with it any other questions yep you haven't introduced yourself but sorry i'm from UCL in my master degree you know um with this amount of data that we're having in in construction architecture we have big thousands of pages that is almost impossible to perform the old kind of research that we are used to done with every single page that was now that it's impossible how much the e-discovery trend has impact your education practice i can say that for the last the last four years of cases that i've done we've had to have any discovery provider involved we've had to do forensic collections of hard drives we've had to use software that wasn't simply come search tournament review platform but kind of software that that did use algorithms to delimit the amount of information that you had to review i think it's pretty common now but i think one of the things that gets taken for granted when you have the discussion about volumes data out of control disclosures out of control is that if you're doing it the right way you are getting that information early even as a claimant or respondent and you're reviewing it first to know what your case is to know where your weakness is but more important to know what the good documents are for you so i do a big arbitration right now involving a petrochemical plant in brazil the client is italian it took a lot of convincing of an italian client that's from a civil law background that they had important jurisdiction sorry discovery duties that they needed to fulfill but the real convincing point for getting them to hire a discovery provider was we want to know the good documents and we want to get those early so we have those now probably six months before any statement of claim will be coming from the other side and we'll have reviewed it all i just think that the focus tends to be a little bit more on expense and volume rather than an opportunity to to make your best case to know what it is not simply be reactive to what the other side says if you're a respondent yeah i mean if the platform you're using is good enough you don't have to read everything to find the good stuff which is really your point whereas when you had the hard copy files which i sort of still slightly miss because i think my eyesight is going but the um you had to read everything to know whether you had something good or not which is pretty tedious there's a question here and my question is where a third party company comes in the picture what's your experience in the relationship with him and how is his participation so i think the fear is that a third party funder is going to somehow come in and try and control the way the arbitration is conducted and i think that's a fear that's held by people that have never actually used the party funding because my experience has been that they very much stay in the background i mean unless there's an order by the tribunal that you need to dispose the identity of the third party funding and the terms of the funding the third party funder stays in the background and relies on counsel to make decisions on strategy procedure or submission to someone you tend to just copy copy the third party funder in or send them copies of documents you're sending out or let them read it before you submit and so on but they don't they don't actually interfere and in how the the arbitration is conducted it's been my experience in my class some are more hands-on than others and want more updates and you have to weekly calls and they'll tell you that they don't think that you're taking the right strategy with a particular submission the big difference that i've seen over the past just say year two years with third party funders is the role they play play in case origination clients are going to them first for years i worked on eight years ago i was working on third party funded cases and it was simply a matter of clients coming to us and i'm saying we'll go find you a funder we have the best relationships with funders and then you convince the funder to take the case now the funders are coming to you with cases and saying we think that you can do a good job on this case we'll pay you rack rates to handle it and the other thing that you see is that recently a funder started its own offer so i think that's an interesting development and i don't care to think of it normally as good or bad but i will say going back to the role that a third third party funder can play and actually prosecuting cases that it's really uncomfortable and some people myself perhaps more than others really don't like having someone backseat drive a case we're doing a case right now that's covered by insurers we have to keep insurers abreast of every single thing you do and it's really irritating to have someone who doesn't actually do international arbitration but does our insurance law second guessing why you sent a particular letter and you can get that with third party funders and you sort of just have to accept it in the same way that you would accept the client second guessing everything that you do even though ethically you're bound to the client's wishes not the third party funders the other thing you're seeing now as well as firms developing portfolio relationships with third party funders so they enter into an arrangement with a third party funder where they agree on a certain profile of exposure and then the firm decides which case it's going to take on and some are more risky and some are less and it has access to the funding for that portfolio and provided it balances out across the board and in that situation the funder would tend less to do kind of thing you're talking about because really the firm has made has done the decision making from the other side that we could i tend to be against parties which have third party funders quite a bit particularly recently and what we are afraid of is well it's not them telling us what to do obviously it's more that once we win because we're going to win and once we get our costs because we're going to get our costs as well and the the party that brought the claim will not be able to pay the costs and the third party funder will not pay the costs because they are not party to the arbitration it's a big issue. For anyone that's interested in third party funding i sit on the ICA Queen Mary task force on third party funding and we're due to be publishing guidelines on third party funding i think at the end of this year so it's an interesting topic and i think we are dead on six o'clock so licea will you close so thank you very much for this wonderful discussion and thank thank you the audience for your very interesting questions unfortunately we have to close now but i'm certain that other families will be more than happy to answer any questions you might have at the cocktail lastly i would like to thank once again iCCR for their support i would like to remind you also that the main heritage arbitration date takes place tomorrow and starts at 10 a.m so we are all very welcome for example i know that the third party funding is going to be discussed at some point so i'm very interested in this point make sure you come tomorrow and now i think i can close our panel so they can invite you all to the cocktail