Message for Teams
We ask everybody to come with a good and positive attitude. As this is a competition, it is important to note that only one team will win. In a short competition like this in which teams have only two opportunities to argue, making the quarterfinals is based on a multitude of factors.
The competition depends on students embracing this unique learning experience and participating in the whole process with sincerity, which means attending all events and especially the final round, the awards ceremony, and the reception. Even if your team does not move on to the quarter finals and further up, there is always something to learn by watching others.
Also, please bring reusable water bottles - we have plenty of water fountains for refilling and are trying to be gentle on the environment.
The basics of how an arbitration is conducted
The purpose of this document is to give competitors a basic idea of how an arbitration is conducted, how the parties should conduct themselves before the tribunal and opposing counsel, and to elucidate some of the important differences between arbitration and litigation.
The setting of an arbitration is usually a room with a U-shaped table where the Tribunal sits at the head of the U, the Claimants sit to the Tribunal’s right, and the Respondents sit to the Tribunal’s left.
For the entirety of the procedure, the Parties and the Tribunal will remain seated, including when counsel is making its submissions to the Tribunal. To open the proceedings, the Tribunal will introduce itself to the Parties by name, and the Parties will do the same to the Tribunal. Please do not mention the name of your law school. Then, the Tribunal will invite the Parties to indicate how they will be allocating their time in the proceedings. As the arbitration proceeds, the Tribunal may interrupt either side with questions or requests for clarification, or other interjections.
The conduct of the Parties’ with respect to the Tribunal Generally, it is accepted for the Parties to address the Tribunal members by their surname and title. Mr. or Madame President is appropriate when addressing the President of the Tribunal. An arbitration is less formal than a proceeding before a court, so there is no need to be excessively formal. When making its submissions, counsel should keep in mind the following with respect to the Tribunal:
a) Maintain eye contact. Arbitration is supposed to feel conversational.
b) When directly referencing materials, wait for the Tribunal to find the relevant portion and keep them with you as you work through it.
c) When referencing materials, do so in a way that enables the Tribunal to find the relevant part(s) of those materials.
c) Deliver your argument in a clear and concise manner. This is an exercise in oral advocacy that should not be beset with long direct quotes or other cumbersome readings.
d) Organize your submissions in a way that prioritizes your strongest arguments.
e) Be prepared to deviate from your pleading strategy in order to accommodate for the Tribunal’s questions and concerns. It is looked upon favorably if competitors can notice something that was said, or was not said, and use that to their advantage thereby demonstrating flexibility and an ability to adapt as the proceedings move forward.
f) Do not thank the Tribunal members for their questions. Simply answer them respectfully and completely. Note that questions are usually an indication of where an arbitrator’s interest or concerns lie, so treat them as an opportunity to entertain those interests or concerns when you are able to.
g) Keep track of you time. Do not exceed it.
Below is a link to a video of a recent ICSID arbitration that may prove useful. In this segment of the arbitration, both Parties interacted substantively with the Tribunal in a perfectly acceptable manner as they worked through a procedural issue. (audio begins at 2:20) https://livestream.com/ICSID/events/6515750/videos/139288348
General observations from ARBITRATOR JOHN CROOK to the participants of the 2016 Arbitration Competition Final
Do not thank people for questions. They are not doing you a courtesy. They are not being mean. Questions are your friends, questions are an arbitrators way of communicating what bothers them, what they think is important, where they think the holes are and so questions are your friends and should be treated with affection and full attention. Nothing is as bad when I have had some cases in actual court and it is a frustrating experience because you get no feedback, they just sit up there and you have no idea if what you are saying is working or not. You really want a bench that asks questions, because then you know what is on their mind and then you can deal with it.
On the other hand, if you get a question and you don’t know what the answer is or you’re not comfortable with the answer, do not make it up on the spot. If you are not comfortable with the question, that is perfectly okay. You can tell the arbitrator, thank you I would like to consult with my colleagues and we will get back to you on that and as long as you get back to them on that with reasonable dispatch that is okay. Do not let them press you into an artificial position where you do not want to go or where you have not thought through the consequences. There is nothing dishonorable in saying, in this context, let me consult my colleagues and we will promptly get back to you on that. But do listen to questions and be careful in your response, because questions are your friends.
Deal with your weaknesses, assuming your panel is reasonable conscientious they will have read the material, they are probably not stupid. If you recognize weaknesses in your case they will have done so as well, and so be prepared to deal with them, maybe up front, but if not up front at least be ready for the questions. I am actually a big advocate of dealing with them up front. There is nothing as frustrating and disappointing as losing a case because of some issue where you knew that you had a vulnerability, it has not been addressed, and then they go off to their deliberation room and they say, “Well you know there is “this” and we never heard anything about “that” and you might have had a perfectly good answer, but it’s not any place there on the record.
Structure your Presentation
Read realtime transcription for the final round provided on a voluntary basis by David A. Kasdan, RDR-CRR, Worldwide Reporting, LLP.
I am really glad that we have a record here because what you are doing is really persuasion on two fronts. On the one hand you are trying to communicate to us orally, we are trying to get a sense in that sort of human way; but you are also, as you make your transcript, you are creating the document that is going to be the most important document for them as they write that award. Structure your presentation, remember, what you are trying to do is to generate a transcript that they can look at and essentially say “okay, yea that is the sequence we are going to use as we write this thing up (assuming you have managed to persuade them)”. So recall that you are not just talking to us, you are talking to this excellent gentleman here who is creating the document that they are going to place very heavy reliance on as they go off to write this thing up.
Defending a Position
Be prepared with fallbacks and think about whether you really need to defend some positions. We had some back and forth on questions, where people were defending positions that you know maybe you really did not need to defend. We had some interesting colloquy about “fair and equitable”, and you know is it “near”, is it not “near” and we went off in a certain direction and that’s fine. But, you could ask yourself the question, “Do I really need to win this one, one way or the other?” Maybe whichever way the argument goes, I have got a case. At least consider whether you have to die in the ditch to defend a position, maybe whichever way that you go you have arguments. Also, in keeping with what I said before, be prepared for the contingency that the tribunal may not agree with your preferred position and if they don’t buy your preferred position be ready to come back with why you are right, even if you have to fall back.
Moot Problems and Facts
In these types of moot problem you can’t have a highly developed factual record, but in the real world it is facts that drive cases. Cases ultimately depend on the appreciation of facts and so you have to know your facts. In the real world, like here, if you don’t know the facts, don’t make them up. Don’t make them up. Tribunals really view that with disfavor. In this kind of an advocacy situation we are dealing with certain artificiality because we don’t have a fully developed factual record, but in this kind of a situation, and all the more so in real life, do not make up facts.