A paper delivered on 24 May 2016 to the Chartered Institute of Arbitrators, Australia
D.F. Jackson AM, QC, FCIArb, FACICA, FAAL
I commence by saying something about the ambit of the paper tonight.
The paper is about advocacy. That term can be used broadly or narrowly, and that is so whether it is employed in relation to proceedings in courts or tribunals or employed in connection with arbitrations, domestic or international.
At the heart of advocacy in this sense is the endeavour to persuade. Persuade others, of course, not self-persuasion. Used broadly in the present context it would be an apt description of all the steps taken on behalf of the client in, or in relation to, proceedings. It would include matters such as preparation of witness statements, examination, cross-examination and re-examination of witnesses, opening statements or addresses and written and oral submissions.
But it would be impossible to deal with all these matters this evening. The aspects of advocacy with which I shall deal with are the oral and written submissions as to outcomes which may be required to be made at various stages of the arbitration. And in doing so I shall mention one or two related matters.
I referred to “outcomes”. By that I mean the result which the submissions seek to achieve. The submissions may be as to what may be described as interlocutory aspects, or as to final results.
Interlocutory aspects they might relate, for example, to what would be called “interim measures” under the UNCITRAL Model Law in Schedule 2 to the International Arbitration Act 1974 (Cth), i.e. temporary measures to maintain or restore the status quo pending determination of the arbitration, prevent harm to the arbitral process itself, preserve assets or preserve potentially material evidence. Again they may relate to the procedure to be followed in the arbitration.
SOME PROCEDURAL SIMILARITIES. SOME PROCEDURAL DIFFERENCES
There are obvious procedural similarities between arbitrations – domestic or international – and court proceedings, but there can be differences too and in the case of international arbitrations the differences may reflect a number of matters.
One is that the arbitrators may not be from the same legal milieu. There may well be a spread of nationalities in the composition of the tribunal, and their backgrounds may be European or Indian or Asian, Central or South American or something else. Even if all the arbitrators are from countries which have a common law background, it does not mean they will all have the same, or necessarily a very similar, approach to the ultimate resolution of the matter, and also to questions of procedure.
The different approaches may manifest themselves in a number of ways. At the simplest level it may be reflected by silence by an arbitrator throughout oral argument. This rather Trappist approach is not uncommon for those with a European background. On the other hand it may be manifested by considerable involvement, a more interventionist, dare I say garrulous, approach. It may also manifest itself in the tribunal discouraging oral, and preferring written, submissions.
Another difference in procedure from court proceedings is that the arbitration, of course, will be conducted according to the arbitration rules applicable to it. Those rules may be determined by the agreement to arbitrate, or by the domestic procedural law applicable to it, or in some other way. Those rules may provide for, or allow, a procedure with which lawyers from an Australian background are not entirely familiar. For example they may allow the arbitral tribunal, if it thinks it appropriate to do so, to adopt an inquisatorial approach. They may also affect the identity of the party upon whom lies the burden of proof of an issue or the extent to which a party may have recourse to the other side’s material (for example by disclosure or discovery of documents) in order to satisfy a burden of proof.
The differences in legal background may be reflected in matters which are more substantive.
For example, a member of the tribunal from another national background may have a more flexible view than Australian lawyers about the extent to which the provisions of a contract cease to be applicable if the passage of time has made them operate rather more harshly upon a party to the contract than was perceived at its inception.
The points I would seek to make from all that are first, it is necessary to think about the procedures that are likely to be applied, and how they may be used to your client’s best advantage, and to its least disadvantage. Secondly it is worthwhile to do at least some research into the background of the arbitrators. Your side is likely to have appointed one, but the other two may otherwise be a mystery.
THE SHAPE OF SUBMISSIONS
There is, of course, no “one size fits all” for submissions. So much depends on the issues and circumstances with which they are to deal, and the stage of proceedings at which they are being made. The comments I shall now make are thus necessarily expressed at a level of generality, but they should be capable of application to the many issues and circumstances which arise.
The starting point to my mind is that it is always important to identify what you are seeking to achieve by the submissions. In that regard the first question should be what is the ruling or order or award which the arbitral tribunal is being asked to make. You may be seeking that ruling or order or award, or you may be the party resisting its making.
Often the answer to that will be simple enough. Take a common case: the claimant seeks an award of damages for breach of contract, the respondent denies breach and puts in issue the quantum of damages if breach is established.
Sometimes, however, the answer will be more complex, for example if the relief sought is of a different kind – declarations of right, injunctions, orders for transfer of property. It is then necessary to check that the agreement and rules governing the arbitration allow the tribunal to grant an order of the nature sought. Even in the simple breach of contract and damages case to which I referred a moment ago, however, questions may arise, e.g. does the agreement to arbitrate, or do the rules pursuant to which the arbitration is taking place, place any restrictions on the types of damage or quantum of damages which may be awarded?
Having identified the orders sought and the power to make them, the next step is to identify the series of matters that need to be established for such an order to be made. And to identify the logical sequence of them. Bear in mind also that if you are acting for the respondent there may be additional issues that you seek to raise to resist the making of such an order. You then need to identify also the steps which need to be taken to make out that defence.
It will be appreciated that these questions arise, or can arise, more than once in the course of an arbitration.
The first occasion should have been at an early point when the matter is being “got up”, that is being prepared before the hearing. It is then that you do have to work out what are the issues of fact, and of law, that you need to succeed on, or establish, in support of your case. Or, if you are the respondent, to defeat the claimant’s case. Also, do not forget to identify the party on whom lies the burden of proof in relation to particular issues. This may depend on the law underlying the conduct of the arbitration.
A second occasion when these matters need to be considered is when the case is being “opened” to the arbitral tribunals. This may take place orally or in writing (or both). An opening can be of significant importance, whether for claimant or respondent.
- For the claimant it allows the claimant’s case to be put in relatively simple form, combining logically the issues of jurisdiction, law and fact necessary to establish the claim.
- For the respondent it is highly desirable that the respondent’s opening “grasp the nettle” of defending the respondent’s position. As a practical matter this means, I think, that the respondent’s opening submissions should state the issues of fact and law which are contested, noting that the respondent may also wish to contest whether the claimant’s statement of the issues has been correct.
In short I think it important that there be before the tribunal at an early point what will be the true issues in the case. It makes the actual conduct of the proceedings more focussed. It also has the advantage that at that stage the parties know what the true issues are and, importantly, have some better understanding of their prospects of ultimate success. This can lead to settlements which might otherwise not have occurred.
The third, and usually the most important, situation in which submissions are necessary is as the final submissions. Again these may be oral or in writing, or both. The manner in which they are dealt with will vary depending on the occasion.
I shall come to final submissions in a little more detail in a moment, but I add something which I always say in speaking about advocacy, namely that written submissions are at least as important as oral submissions. Even after 30-40 years in Australia where a requirement for written submissions has been the norm in courts, some people disregard their significance, thinking that it can all be fixed up in the oral submissions. That should not occur. To prepare written submissions properly not only concentrates the mind of the writer. It also provides the opportunity to bring home to the arbitrators in an attractive and persuasive way the essential elements of the party’s contentions on the issue the subject of the submissions.
And sometimes – as may well be the case in an international arbitration – the written submissions will be the only submissions.
From a claimant’s point of view, the final submissions, in my view, should, broadly speaking, follow the following lines.
It is worthwhile first to set out in short form the essential nature of the proceedings, and the events which confer jurisdiction on the arbitrators. Try to do this in a way which the arbitrators could adopt as part of their reasons for their award. (Don’t expect attribution, or claim plagiarism.)
Then should follow a list of the issues which arise in establishing the claimant’s case. Indicate the issues which are not in dispute, and those which are. Indicate too the issues raised by the respondent in defence of the claims and again the position in relation to them.
Sometimes it will have been agreed that the arbitration will turn on the resolution of identified issues, and submissions should be tailored to reflect that situation. (A matter to be borne in mind in circumstances such as these is to ensure that the identity of the party bearing the burden of proof on each such issue is agreed or, if not agreed, clearly left as a question for argument.)
In short the object of the early parts of the submission should be to make clear to the Tribunal what it has to decide. In the more complicated cases the issues will involve sub-issues. It will be a matter of judgment whether to list those sub-issues at that point, or whether simply to say that “some of these issues may involve sub-issues, which we discuss below”.
What then follows? Needless to say the several issues in the proceedings have to be dealt with. And, I think, dealt with in the order you have mentioned, and dealt with one by one. In doing so it is better most often to keep submissions on substantive liability separate from submissions on the relief which is appropriate. No doubt it is possible to mention, when dealing with substantive liability, that a finding one way or the other will be the basis for, or affect the type or quantum of relief but it is usually a mistake to run the two together. As a general proposition, separate issues are better dealt with separately.
Turning to submissions on substantive liability, the issues which arise may be questions of fact, questions of construction of a contract, or other questions of law.
Again generally speaking, my view is that it is best to deal with the issues, of whatever nature, in the order in which they arise logically. But it is not always easy to decide what is the logical order. And sometimes circumstances suggest that other features may cause logic to take second place.
A reason why it is not always easy to decide the logical order is because the relationship between issues of fact and issues of law tends to be symbiotic . An issue of fact won’t arise unless a decision on it is relevant to the application of a legal principle, but the question of the possible application of the legal principle won’t arise unless there are facts to which it can apply.
The practical problems brought about by that dilemma can sometimes be ameliorated. The case may be one where the party has a very strong case on the facts and it seems possible to persuade the tribunal that it will be unnecessary for it to go to the law, because on no view of the law, if disputed, could the facts satisfy the legal requirements. In such a case it won’t seem odd that you go to the strength of your case at an early point. The opening parts of the submission should have indicated how the issues relate to each other. But be careful: the arbitrators, or one or more of them, may not hold your view as to the strength of your case. If matters are equally balanced my inclination would be to deal first with the question of law.
I turn next to the some observations about the content of submissions on issues of fact and of law.
First, fact. It is likely that many of the basic facts will have been admitted or are agreed. It is necessary to identify what further findings of fact are required to make out the party’s case. It is then necessary to provide reasons why the fact should be found as suggested by the party.
Bear in mind that “findings” in this sense can refer not only to ultimate findings of fact, but also to findings on intermediate facts, i.e. on facts from which the ultimate inference may be drawn.
Submissions on fact are most desirably based on contemporaneous records and events, and inherent likelihood.
In making submissions on factual issues it is often desirable to set out a narrative based on the documents, and then to indicate the issues that remain to be decided pursuant to the evidence of the witnesses. Don’t forget that if there is evidence, whether documentary or from witnesses, which is against the findings of fact which you seek to have made, you can’t just treat that evidence as if it doesn’t exist; your opponent will ensure that the tribunal is aware that it does exist.
Submissions on factual issues may involve, of course, contentions as to the credibility of the witnesses.
There are many features which may affect the credibility of witnesses – their demeanour if evidence has been given orally, consistency of their evidence with contemporaneous events or documents, the inherent believability of what they say, whether they have any interest in the outcome and so on. These are matters which you need to consider in making submissions on whether a witness’s evidence should be accepted, rejected or treated with caution unless corroborated by other evidence.
Secondly, law. The questions of law most likely to arise in arbitrations are questions of construction of contracts, questions of the application of statutory or treaty provisions and questions of the underlying general law. By “underlying general law” I mean in relation to the common law countries the common law and equitable doctrines and in the case of other countries legislation of general application.
In dealing with questions of construction of the terms of a contract, don’t forget that the meaning to be attributed to the words of a contract may depend on the legal approach to be taken in determining contractual meaning. The principles as to the interpretation of contracts that we are accustomed to apply in this country may not be those which the tribunal, or some of its members, are accustomed to apply.
The country whose law is applicable to the arbitrations may also have its own rules for interpretation. Thus some countries may treat the literal terms of the contract as more important. Others would regard the terms as generally binding but not in circumstances which could not reasonably have been foreseen. Again the extent to which pre-contract negotiations on the one hand, or post-contractual behaviour on the other, may be taken into account in interpretation of the contract can vary from jurisdiction to jurisdiction. (And even in Australia, from time to time.)
Submissions in favour of, or against, particular interpretations of contracts need to be based on matters such as the role played by the provision in the structure of the contract, the consistency with other provisions of the contract of the interpretation contended for, the consequences of adoption of that interpretation, the “flow on” effect if that contention is correct, and similar matters. The object is to persuade the tribunal that the interpretation contended for by your side is the “better”, the more workable, the more likely, interpretation of the relevant provision.
Rather similar observations apply in relation to submissions on questions of statutory interpretation. Again the meaning and operation to be attributed to a statutory provision will depend on the legal approach to be taken in statutory interpretation. Jurisdictions in places like Australia will have Interpretation Acts, the provisions of which have to be taken into account. Sometimes if the arbitration is taking place in circumstances where a treaty is being interpreted, the treaty may “pick up” provisions of the international agreements as to the interpretation of treaties.
As one might expect, the critical matters to be dealt with in submissions on the interpretation of statutory provisions will be the role played by the provision in the statute, the consistency of the interpretation contended for with other provisions of the statutes and the consequences of adoption of one, or another, interpretation.
It should also be borne in mind that there may be a difference between the substantive law and the procedural law applicable to the arbitration. The substantive law may be that of Nation A – but the procedural law that of Nation B. For example the arbitration may be being conducted in London or Singapore with United Kingdom or Singapore laws respectively applying to its conduct, but the substantive law may be that of Japan.
SOME CONCLUDING SUGGESTIONS
I mentioned earlier that the aim of submissions is to persuade the tribunal to whom they are directed to find in your client’s favour on the matter the subject of the submissions. I also said that there is no “one size fits all” form of submissions. Let me, however, conclude with a few general observations.
Put your case simply and clearly. The object of advocacy, as I have said, is to persuade. This is best done putting arguments in a manner which is clear, and logical, and expressed in simple terms. Unnecessary repetition should be avoided. So far as possible the argument should be put in a way that seems to suggest the “right” answer.
Don’t overdo it. Far too often advocates succumb to the temptation to be overly emphatic. Their submissions are littered with phrases such as that the opponent’s contentions are “absurd”, “ridiculous” and so on.
Of course submissions can be forceful and direct, and sometimes should be expressed vigorously, but it should not be overdone. In the first place the tribunal may disagree. Secondly overuse gives rise to a suspicion that the advocate is substituting words for logic. An arbitrator is always more likely to adopt a well-reasoned argument which does not descend (or perhaps ascend) to unnecessary superlatives. And in any event why raise the barrier for yourself?
Deal with the opposing case. The opponent’s case cannot be ignored, it can’t be treated as if it is no more than a slightly unpleasant smell in the room. It has to be dealt with.
In relation to final submissions the time on which this will best occur depends on the nature of the case and on the directions given for submissions.
Thus in some cases, if there is provision for submissions in reply, it may be appropriate for the claimant to wait until the reply to respond to various issues raised by the respondent. After all the respondent’s submissions may not actually raise every contention mooted during the hearing.
If, however, the respondent’s case challenges elements essential to the claimant’s case (e.g. a finding of fact which is sought) it is better to deal with the issue earlier.
It may also be the case that directions have been given that the submissions of the parties are to be delivered at the same time. In that case it is necessary to deal in those submissions with the opponent’s case, as well as one’s own.