Interlude: Arbitrators on the role and art of advocacy in ISDS
Ten rules for better written advocacy
Rule 1: use short sentences
Short, easy-to-understand sentences are more effective than long ones.
Rule 2: use language that non-native speakers can understand
Use language that arbitrators from a different legal background can understand accurately. For example, the French word ‘procès’ is often translated into the English word ‘trial’. For a US lawyer, however, ‘trial’ signifies the hearing on the merits, while for a French lawyer, ‘procès’ designates the entire procedure, from the filing of the complaint until the final judgment. It is best to avoid referring to a procedural device in your own national system to describe what you want to accomplish in a request for arbitral relief.
Rule 3: start each paragraph with a topic sentence
The first sentence of each paragraph should announce the main point of the paragraph. This organisation will make your argument clearer and stronger.
Rule 4: describe the parties by their names and not by their procedural position
Even though it is investment arbitration, do not refer to the parties simply as ‘claimant’ and ‘respondent’. The arbitrators will not always remember who they are (and neither will you). Use the parties’ names.
Rule 5: do not use the pronouns ‘you’ and ‘we’ in correspondence and pleadings
When drafting correspondence and pleadings, do not refer to opposing counsel or their client as ‘you’, and to oneself or one’s own client as ‘we’. Instead, refer to the parties (e.g., ‘ABC Corporation is seeking to delay the proceedings in bad faith’ as opposed to ‘You are seeking to delay the proceedings in bad faith’). This keeps the debate from getting personal and gives your writing a more professional (and less offensive!) tone.
Rule 6: minimise abbreviations
Only introduce an abbreviation when it is essential to do so. It is not essential in contexts where one would not do so in ordinary speech. For example, we do not stop to define ‘John Smith’ in ordinary speech – we simply refer to him as ‘Smith’. Do not make arbitrators uselessly memorise lists of coded names.
Rule 7: do not make your opponent’s argument
It can be tempting to begin a responsive argument by summarising the point in question. In that case, begin the argument by stating that the adversary’s point is wrong. For example: ‘ABC Corporation errs in suggesting that the sun rises in the west’. Do not merely summarise your opponent’s argument because by doing so, you risk stating your opponent’s argument in a clearer manner than they do.
Rule 8: facts should show, not tell
The tone of the fact section should always remain factual and neutral, without drifting into argument. By carefully selecting the facts and presenting them in the right way, you should lead the reader to conclude by himself or herself that your client is right and the adversary is wrong. This approach is much more effective than merely telling the reader what to think.
Rule 9: do not use superlatives
When discrediting the opponent’s point, you only need to establish the point’s lack of merit – adding a superlative is unnecessary. In those rare cases where it is necessary to convey a stronger degree of emphasis, it is better to do so through careful selection of nouns and adjectives than through the addition of a superlative.
Rule 10: begin a procedural letter to the tribunal with what you want and who you are
When writing a procedural letter to the tribunal, start by stating who your client is, and what you are asking. For example: ‘On behalf of respondent ABC Brazil, we respectfully submit that the tribunal should deny the request for documents stated in the 20 June letter of claimant XYZ Corp.’ The tribunal should not have to wonder until the end of the letter why it is that you are writing.
– Barton Legum, Dentons
Advocacy in investor–state disputes – what’s different?
Commercial arbitration is generally about interpreting a contract to decide which party owes money to the other and how much.
Some would say that treaty arbitration is no different, that it consists of interpreting a treaty and deciding how much money, if any, the state should pay to the investor. That, however, does not capture the full reality of investment arbitration.
The political dimension
Rightly or wrongly, there is a perception among arbitrators that investment arbitration is not just about money. Rather, arbitrators have the impression that they are asked to pass judgement on the actions of a state whose motivation can go well beyond the simple breach of a treaty protection. This perception is amplified by the legitimacy crisis that currently afflicts investment arbitration. As a result, there is an extra dimension in treaty arbitration and it is crucial to take that extra dimension treaty. Failure to do so, by limiting the arguments merely to why the treaty has been breached, may fail to address some of the elements that go into the decision-making process of the tribunal.
This does not mean that political or societal considerations should be at the heart of the argument. The argument should remain technical in nature and non-political, but the narrative of the investor should be such that it gives sufficient comfort to the tribunal that is not interfering with the inherent powers of a state. The very notion of a state is of course abstract, and the actions that are criticised in investment arbitration are very often taken by one or more individuals. Sometimes there is coordination among them, sometimes there is not (and the state may be at fault for the lack of coordination). In some cases, the tribunal may have the impression that the state has acted in bad faith. Those cases, however, are the exception. Very often, the tribunal will take the view that the state is not in bad faith but that it may nonetheless have to indemnify certain investors because it had made promises in an investment treaty and those promises are to be respected.
Any good oral argument in an investment treaty arbitration takes into account the political dimension of the underlying story without addressing it as such. That is easier said than done. However, this is a major difference between treaty arbitration and commercial arbitration.
No aggressive grace notes
Another aspect of advocacy before investment arbitration tribunals is the need to adopt a very neutral tone and to avoid aggression. Unnecessarily aggressive pleadings or oral submissions are generally not helpful in commercial arbitration. In investment treaty arbitration, they can have a disastrous impact on the parties whose counsel choose to adopt them. Investment arbitration pulls specialists from both the commercial arbitration arena and public international law, including those appearing before the International Court of Justice (ICJ). Counsel’s behaviour before the ICJ has to be policed in the extreme. As a result, it is counterproductive to address opposing counsel in the same way as one would address an adversary in a commercial court in a domestic dispute. That behaviour can reflect badly on a party that does not realise that the game is played with slightly different rules in front of investment arbitration tribunals.
– Philippe Pinsolle, Quinn Emanuel Urquhart & Sullivan LLP
Less is definitely more
A more and more common feature of investment cases is long written and oral submissions. It is now not infrequent to see memorials spanning 500-plus pages, a significant part of which are quotes of investment awards that can be easily retrieved on the internet, with thousands of footnotes. These submissions invariably include a significant number of repetitions, as if repeating arguments could make them stronger.
And oral submissions, more often than not, are accompanied by hundreds of dense slides, the reading of which – if they can be read mid-presentation – will inevitably distract the tribunal and create a distance between its author and its audience.
Blaise Pascal wrote in one of the letters in Les Provinciales: ‘Mes lettres n’avaient pas accoutoumé . . . d’être si étendues . . . Je n’ai fait plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.’ (‘My letters were never accustomed to being so extensive . . . I only made this one longer because I didn’t have the leisure to make it shorter’ – or as it is sometimes said, ‘I’m writing you a long letter because I don’t have the time to write a short one.’) Being short requires focus and takes more time than drafting an encyclopedic statement of every minute aspect of a party’s case. The time needed to be short and concise, however, will always be well spent.
– Alexis Mourre, MGC Arbitration
What persuades on the substance?
Tips on advocacy during the substantive stage
As counsel, it is always difficult to identify the argument that will convince an arbitral tribunal. And as arbitrator, it is not always easy to say exactly which argument has led the tribunal in a certain direction. Yet, some principles ought to be respected if the advocacy during the merits stage is to have the greatest chance of being successful.
First, a party has to develop a narrative. The advocate is a storyteller and that story must be comprehensive and must explain the case from the beginning to the end. That story is the background to the legal arguments; those legal arguments will be understood by the tribunal in a much better way if they form part of an overall narrative. The narrative has to be consistent internally; it also has to be consistent with the facts of the case, as established by the written documentation and the testimonies. Finally, it must sound logical. If the narrative is a good one, that is great. Of course, not every case is a candidate for a good narrative. Either way, developing a narrative is essential. Merely reciting the legal arguments one after the other will be insipid and ultimately ineffective.
Properly connected legal argument
The second principle is that the narrative should not override legal considerations. Too often the legal portion of the oral or written submissions is neglected. The legal discussion is frequently another discussion of the facts, presented in a different manner, but not a true legal discussion. Convincing an arbitral tribunal can only be achieved by putting forward clear and consistent legal reasoning. Ultimately, it is the tribunal that will have to draft the award. To do so, it needs to understand each party’s legal position from the beginning to the end. To be of help in the drafting of an award, the legal arguments must be articulated in a logical fashion and more importantly they must lead to the conclusion that is requested in the prayer for relief.
Sometimes, the legal arguments are developed separately from the facts and with no direct or obvious connection to the damages requested. The tribunal is then faced with a story (the facts), a discussion of some legal principles, and one or more requests for indemnification. Parties tend to think that the arbitral tribunal will make a choice among these various elements and find the reasoning to give them the relief requested. That is not only wrong, it is a recipe for disaster. It is not for the tribunal to make a choice. It is for each party to advance their own choice, with the assistance of counsel.
A good discipline is to proceed in the following manner: (1) start from the prayer for relief, (2) identify the rule or legal principle that is applicable to obtain the prayer for relief, and (3) explain why that principle, applied to the facts, leads to the desired result. This is surprisingly absent from many submissions.
Acknowledge your weaknesses
The absence of clear legal reasoning is generally not due to the lack of talent of counsel but to the fear that clarity will expose a weak argument. It is, however, futile to attempt to hide from the tribunal a very weak point in the reasoning. A weak point should be addressed up front with the tribunal rather than buried in confusing explanations in the hope that the tribunal will not see it. Any attempt to defuse a weak point will often backfire because the party will not have had the opportunity to address the tribunal fully on why it should prevail notwithstanding this weak point. As a result, in deliberations, the tribunal will have insufficient arguments in front of it to overcome that difficulty.
In summary, regardless of whether the legal arguments are strong or weak, clarity is key.
Don’t dilute your strongest arguments
Lastly, when there is one good argument and three bad arguments, it is not a good idea (especially in oral submissions) to plead all four of them. It is an even worse idea to put them on the same footing. Good counsel can tell the difference between a good argument and a bad one. When it comes to oral submissions, only good arguments should be presented. Putting forward good and bad arguments as if they had equivalent force will only dilute the good argument and sometimes confuse the tribunal.
– Philippe Pinsolle, Quinn Emanuel Urquhart & Sullivan LLP
If it’s worth saying, is it worth saying thrice?
Sadly, it is commonplace today for memorials to extend into hundreds of pages. Worse, replies and rejoinders are now almost always longer than the underlying memorial to which they respond. Something has gone badly wrong.
Mindful advocates will understand how much a focused, precise and un-repetitive submission will be appreciated by the members of the tribunal. Bearing in mind the inadvisability of irritating the mind of your decision maker, the best counsel will avoid the chaff and present only the wheat. He or she will do so succinctly and without reiteration. Those who follow this course will not be only be rewarded suitably if their case is sound, they will also be much admired and sought after.
– J William Rowley QC, Twenty Essex