THE AUTHORS:
Baiju Vasani, Arbitrator and Barrister, Twenty Essex
Mihaela Apostol, Independent Counsel and Arbitrator, London
“Most of the information in international arbitration is communicated through written advocacy. While oral advocacy is important, an international arbitration hearing takes place long after hundreds of pages of written advocacy have been digested by the Tribunal. If you haven’t already persuaded the Tribunal of your position in writing, it’s likely too late to salvage orally.”
About Lawyering Plus
Lawyering Plus is an initiative set up by Mihaela Apostol, Dr Ilka Beimel, and Svetlana Portman to help lawyers build soft skills. Lawyering Plus organises webinars and invites expert speakers to share tips on a particular soft skill. Each episode ends with an interactive Q&A segment. The first webinar season focuses on communication skills and comprises the following episodes: Communicating with Clients (E1), Communication within the Law Firm (E2), Communicating with Experts (E3), Written Advocacy (E4), Oral Advocacy (E5), and Non-verbal Communication (E6).
Fourth Episode: Written Advocacy
On Lawyering Plus’ fourth episode on communication, Baiju Vasani shared his insights on the importance of written advocacy in international arbitration, emphasising the need for clarity, simplicity, and brevity of submissions.
Clear Structure
At the beginning, Baiju advised setting a clear structure and presenting positions as early as possible in the most convincing way. The written briefs and other submissions form the first impression of the tribunal. By the time of oral submissions, the tribunal already formed an opinion about the case. As a result of “confirmation bias”, it’s very natural for decision-makers to look for information that supports their preliminary opinion, rather than looking for things that oppose that position.
Baiju encouraged lawyers to spend at least 20% of their time on developing the structure: building arguments in sequential flow, crafting headings and planning how exactly it all falls in the case strategy.
He suggested using the IRAC (Introduction, Reasoning, Application, Conclusion)method to convey a message effectively. By making the point upfront in the introduction, the tribunal will get a quick understanding of the case by simply reading the first sentence of each paragraph.
Similarly, the headings and the table of contents should tell a story of the key points and reflect the case’s structure.
Simple Style
Regarding writing styles, Baiju highlighted the significance of using themes and providing context to help the tribunal understand the parties’ motivations and commercial perspectives.
Baiju encouraged simplicity. Excessive adjectives and adverbs in legal proceedings can diminish credibility and make submission difficult to follow. He suggested after writing a text to go back, read again and de-adjective and de-adverb the text, by deleting those which are not needed. Fewer adjectives and adverbs have more power because they are there on their own.
Also, titling subjective aspects as “defined terms” of the case (e.g. instead of saying “The Memorandum which was not disclosed” opting for the label “The Secret Memorandum”) could be persuasive, when done professionally and ethically.
Generally, Baiju emphasised the need for professionalism and avoiding personal attacks. Tribunals preferless squabbling and more solutions.Exaggerations, accusations of egregiousness and bad faith allegations are to be avoided. Baiju also highlighted the significance of credibility in legal proceedings, warning against misquoting or selectively quoting evidence or legal authorities, as it can lead to a loss of trust and credibility in the party’s submission.
Additionally, Baiju provided insights on handling weak arguments in legal cases. He discussed the importance of addressing the points that have the potential of diminishing one’s case, by integrating them in the submissions and explaining how those concerns can be mitigated.
With regard to complex cases, Baiju discussed the balance between simplicity and complexity, suggesting that technical details should be detailed in expert reports and witness statements. At the same time, the submissions should focus on drawing out the key points.
Brevity of Submissions
At the end, Baiju discussed the importance of brevity in written submissions. Short and simple sentences, can convey an idea just as well or better than long or compound sentences Lengthy footnotes and large annexes should be avoided. To facilitate the tribunal’s understanding of the case, it helps to have submissions that are manageable enough that can be read in one go (approx. 150 pages), rather than being split over many days.
Effective Practices
In summary, the following practices can be included in submissions:
- An executive summary (equivalent to a 90 seconds elevator pitch);
- A table of contents which tells the story of the case;
- Visuals: demonstratives, pictures, maps, charts, graphs;
- A glossary of terms;
- A list of dramatis personae (maybe include photos of the witnesses);
- Chronologies;
- Decision trees which include both parties’ positions;
- A list of (agreed) issues in dispute;
- A list of agreed issues of law (when possible).
The recording is available on Lawyering Plus YouTube channel.
Next Episode
The next session is about oral advocacy. Follow Lawyering Plus on LinkedIn to receive updates on future episodes and learn more about soft skills or subscribe here.
ABOUT THE AUTHORS
Baiju Vasani is an Arbitrator and Barrister at Twenty Essex. He is a renowned leader in ISDS, international commercial arbitration, and public international law as both counsel and arbitrator. Before he joined the Bar in November 2022, Baiju spent 20 years in international law firm practice, including 12 as a partner, leading large teams of lawyers in dozens of international arbitration disputes worth several tens of billions of dollars in aggregate.
Mihaela Apostol is an Independent Counsel and Arbitrator based in London. Mihaela is a civil and common law qualified lawyer with ten years of experience in international arbitration having worked as counsel, tribunal secretary and arbitrator. She is an Avocat of the Bar of Bucharest, Romania and a Solicitor of the Supreme Court of England and Wales.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
