29 Nov 2022

'Be calm, pleasant and measured at all times' - top tips for advocacy in arbitration

Zoe O’Sullivan KC draws on her experience to offer advice to those building careers as advocates in this specialist field

Zoe O'Sullivan KC has almost 30 years of experience advocating in arbitral tribunals, both onshore and in the UAE, on a broad range of commercial and Chancery matters. Here, she offers advice to advocates seeking to develop a successful and robust practice in arbitration.

  1. Prepare for a hearing like your life depends on it. If you try and wing it, you will be pitilessly exposed in front of your client.   That means knowing your own case, your opponent’s case, and what your answers are to your opponent’s case. 
  2. Know the facts and deploy them effectively.  All cases are won on the facts.
  3. Know what the documents say and where to find them.   This will enable you to adapt your cross-examination of a witness “in flight”.   Check that your references are correct: there is nothing more excruciating than the silence of counsel trying to find a document.  (But learn techniques for “styling it out” when this happens, as it invariably does).
  4. Make your written submissions as short as you dare and avoid repeating points.  Writing short submissions is hard work, as you need to structure them carefully and eliminate bad points, but the end result is much better than a “kitchen sink” memorandum into which you have dumped every possible argument, good or bad. The Tribunal will be profoundly grateful to receive a clear, concise submission which tells it which points it needs to decide, why they matter and how they should decide them.
  5. Lists of issues are a great way to work out what the important issues are and how to structure your submissions.   But try to take a reasonably high-level view: an “issue” doesn’t necessarily mean everything which is not admitted in the statements of case.
  6. It is good practice to write out oral submissions in full.   Even though it is unlikely that you will be allowed to read them out word for word, it gives you the comfort that you have thought through your arguments and covered the relevant ground.  The same goes for cross-examination questions: if you get diverted by a witness’ answers, having a script can help you get back on track.
  7. In written and oral submissions, always try to imagine you are on the receiving end.   The Tribunal will know much less about the case than you do, at least at the beginning, and may have had limited time to read in.   Help them to understand your client’s story.  Always be clear on:
    • what order you are asking for 
    • why the Tribunal has the power to make it
    • why the Tribunal should exercise its power to make such an order.
  8. Remember that the Tribunal only wants to get the right result.  Anticipate the aspects of your client’s conduct which may make the Tribunal feel uncomfortable and try to address or at least mitigate their impact.   Getting the Tribunal to understand the commercial motivation for your client’s actions can be very effective. Think about conceding points which you cannot win.
  9. Always answer the Tribunal’s questions.  If you need time to find out the answer, ask for it, but refusing to answer will not make the point go away and will annoy the Tribunal.
  10. It is critical never to misstate the facts or the law.  If the Tribunal feels that it cannot trust what you tell it, your client will lose the case.  Also, if you set out the facts and issues in a reasonably objective manner, the chances are the Tribunal will use your version or at least be influenced by it in their final award.   This gives you the chance to set the agenda.   Save the adversarial advocacy for the points which are in issue.
  11. Be calm, pleasant and measured at all times.   Getting angry makes you look weak.  Avoid the temptation to abuse the other side.  The Tribunal isn’t interested, and it can be very tiring for them to listen to aggressive advocacy, even if the client loves it.  Save your objections for the points which cause real prejudice to your client, and they will carry much greater weight.
     

Zoe O’Sullivan KC is a commercial Chancery barrister and arbitrator at Serle Court. She is regularly appointed as presiding, sole and co-arbitrator in claims proceeding under the LCIA, DIFC-LCIA, ICC and UNICTRAL rules. She is on the List of Arbitrators of the HK IAC and is registered in the DIFC and admitted to the Bar of the BVI.
 

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