Jean-Jacques Rousseau was a Swiss philosopher, writer and composer born in 1712, whose political philosophy influenced the progress of the Enlightenment throughout Europe as well as aspects of the French and American Revolutions.
“People who know little are great talkers, while men who know much say little” is a quote taken from ‘Èmile; or, on Education’, which was published in 1762 and was immediately banned in France and Switzerland as it criticised religion, causing Rousseau to flee. The treatise tells the story of a fictional man named Èmile and follows his development and education. Rousseau’s intention was to capture in Èmile all the virtues of Rousseau’s idealised ‘natural man’, who is uncorrupted by modern society. Rousseau goes on to say that:
“It is plain that an ignorant person thinks everything he does know important, and he tells it to everybody. But a well-educated man is not so ready to display his learning; he would have too much to say, and he sees that there is much more to be said, so he holds his peace.”
For present purposes, it is useful to consider whether Rousseau’s opinion of the ideal man might be transposed or applied in the context of advocacy in international arbitration. In the context of international arbitration, it is widely accepted that advocacy is, as described by David J.A. Cairns, the “persuasive communication of a party’s case to the arbitral tribunal”. This includes all communication, whether written or oral, with or for the benefit of the arbitral tribunal. Rephrasing Rousseau’s view of the ideal man, therefore, one might ask whether the success of a party’s advocacy can be determined by its length? We consider this issue in this article.
Advocacy in international arbitration – an introduction
One of the drivers of international arbitration’s popularity as a dispute resolution mechanism is that it allows parties to dispense with many of the more restrictive procedures and formalities required by national courts’ litigation procedures. The advocacy required for the purposes of international arbitration, both written and oral, is arguably less ‘formalistic’ in both style and substance than that which is usually required for the purposes of litigation carried out in national courts (particularly, common law jurisdictions).
However, whilst the relaxation of formal requirements may be good news for parties engaged in international arbitration, there is a risk that this is accompanied by an attendant lack of scrutiny of the quality of advocacy in those proceedings, given its private and confidential nature. In addition, the parties’ different jurisdictional and, arguably, ethnic backgrounds may lead to vastly different approaches to the style of advocacy they adopt (and, potentially, expected by individual members of the tribunal). Therefore, it remains important that practitioners pay close regard to how they present their arguments to a tribunal in any arbitral proceedings.
The length or duration of a practitioner’s advocacy on behalf of their client will, for a large part, be dictated by the complexity of the case and the number of witnesses required, both lay and expert. There is no limit as to the duration of advocacy in any of the arbitral institutions’ rules; however, both in our practical experience and anecdotally, it seems that the length or duration of arguments (written or oral) presented to a tribunal will have some bearing on a party’s chance of success. Put another way, and to give effect to Rousseau’s quote above, a point made clearly and succinctly by a party might resonate more forcefully with a tribunal.
To that end, it is useful to consider whether practitioners might be guided by Rousseau’s philosophy in their written and oral submissions.
In October 2019, the Global Arbitration Review (“GAR”) published the fourth edition of its guide to advocacy, which includes a chapter giving advice on written advocacy from various experienced international arbitration practitioners.
A point emphasised by those practitioners is that, when drafting written arguments, brevity and simplicity are key. In line with Rousseau’s thinking, Thomas K. Sprange QC, a Partner at King and Spalding in London, emphasises “how less can be much, much more” and the need to “wherever possible, simplify rather than complicate”. On the contrary, rambling submissions only serve to irritate and confuse the tribunal and therefore fail to persuade the tribunal of the merits of a party’s case. This is supported by other commentators, who have all indicated support for a concise approach to drafting written pleadings; Greg Laughton SC, of Hardwicke Chambers (London) and 13 Wentworth Selborne Chambers (Sydney), in particular is of the view that written advocacy should be brief as “unduly long written submissions deter readers from close and detailed reading, because they require lengthy periods of concentration”.
Some suggestions include considering whether the length of a submission is proportionate to the case at hand and being mindful not to ‘overegg the pudding’. By way of example, Hilary Helibron QC and Klaus Reichart SC, both of Brick Court Chambers (London), consider that: a question on a discreet point of law may not require extensive submissions and numerous folders of supporting documents; and closing submissions should focus on questions raised by the tribunal during the course of the hearing rather than regurgitating the written pleadings. Christopher Style QC of One Essex Court, a barrister and practising arbitrator, remarked that “too often arbitrators are presented with written submissions that are too long, too detailed, repetitive and include too many long, boring footnotes”. In his view, arbitrators are committed to doing a good job but it doesn’t help parties win if the arbitrators “can’t see the wood for the trees”.
There are numerous examples that could arise. However, the point being made is clear: keep written arguments succinct, and to the point.
The above considerations apply equally to oral submissions. In its publication ‘Funding in Focus Content Series’, Vannin Capital asked: “London - arbitration and litigation: who wins, where and why?” In compiling the article, Iain McKenny, General Counsel for Disputes at Vannin Capital, asked nine litigation claimants and nine arbitration claimants what the top five issues are that make the difference between winning a case and not winning. Their answers revealed a 7-step method for success which includes “good, clear, concise pleadings and advocacy” to prevent arbitrators having to pick the key points of the case out of “weighty tome or lengthy oral submissions”.
Dr Colin Ong QC, a member of the Brunei, English and Singapore bars and a chartered arbitrator, considers there are, however, some additional factors that practitioners should bear in mind when delivering oral arguments. These include that parties should not underestimate the importance of the hearing and should use the hearing to convey “a structured and coherent vision of the case”. This requires advocates to define their arguments and present them logically to the tribunal. Advocates should also be prepared to take guidance from the tribunal – for example, if the tribunal has clearly understood the point being made the advocate can move quickly on to the next, while conversely, if the tribunal is clearly unimpressed by a point, an advocate might be wise to move on without delay.
Finally, the effectiveness of oral advocacy can depend on the parties’ ability to explain their case coherently within the time constraints of an arbitral hearing timetable. In this regard, some tribunals utilise ‘stop clock’ or ‘chess clock’ methods in proceedings, where time is allocated between the parties equally, to be used as the parties see fit. Once the allocated time has elapsed, no further oral submissions are allowed and extensions are rarely granted. The purpose of the ‘stop clock’ or ‘chess clock’ method is to prevent one party from using up a disproportionate amount of time, and to focus the parties so that they might better understand and express the strengths and weaknesses of their respective cases.
The effectiveness of advocacy in international arbitration will ultimately turn on the substance of the submissions. However, and in line with Rousseau’s philosophy, parties can assist themselves by focussing on the key issues and making points succinctly and simply. This is in keeping with the overall premise that the “golden rule of advocacy should be: help your tribunal.” In this regard, Alexis Mourre, an independent arbitrator and President of the ICC International Court of Arbitration, considers one of the ways parties can assist their tribunal is by keeping their arguments “as simple and as focussed as possible” and in the context of complex cases, parties should seek to “boil down” such complexity to “three or four decisive questions”.
In the context of international arbitration, therefore, it seems that what Rousseau wrote all those years ago still rings true: the length of advocacy will likely have a bearing on the success and effectiveness of the same. Long and descriptive submissions tend to fail to best present the highline points of the case and require extended periods of concentration and detailed reading that can often be lost, even on the most experienced of arbitrators. Accordingly, whether preparing written or oral submissions, parties should be mindful of their duty to the tribunal and should work to structure their advocacy in a way that is clear and concise and focuses on the key points of the case.
See cms.law/ICCA2020 for more information about CMS LLP and ICCA 2020