September 18, 2021


Let'S Talk Law

World-wide Arbitration Critique – The Manual to Advocacy

Authorized programs of English-speaking African international locations

The authorized landscape of English-speaking African international locations is mainly primarily based on the popular law program, though a handful of English-speaking international locations in Africa are rooted in a mixture of the civil and typical law systems. Various historical foreign influences formed the formation of the English-speaking African nations around the world (and in truth African international locations in general) prior to their legal and political independence. These influences also shaped the practice of regulation in these nations around the world – arbitration becoming no exception.

With a specific emphasis on advocacy in arbitration, the widespread and civil law divide implies distinctive variations of presentation and expression, both equally orally and in composing, in the course of arbitral proceedings. The typical regulation procedure adopts the adversarial type, in which it falls on the advocate to just take manage and existing his or her client’s case, with the arbitral tribunal enjoying the aspect of an umpire. The civil regulation program, on the other hand, is embedded in the inquisitorial style with minimum emphasis on oral advocacy and the arbitral tribunal tasked with using regulate of the point-locating workout in the course of the proceedings. The advocate’s purpose would usually be constrained to presenting his or her client’s situation in accordance with the directives of the tribunal, which performs an energetic section in the using of evidence, which includes the assessment of witnesses and professionals.

This dichotomy in between the prevalent legislation and civil legislation devices notwithstanding, intercontinental arbitration is more and more proving disruptive in limiting the impact of cultural considerations and authorized traditions in arbitral proceedings within just most international locations in the English-speaking African location as a result of the provision of standardised frameworks, rules and international smooth legal guidelines (these kinds of as the IBA Procedures on the Using of Evidence in Global Arbitration) that govern arbitral proceedings across the board. Indeed, a variety of English-talking African nations have already aligned their arbitration policies and tactics with recognised international or uniform specifications, or are in the course of action of doing so.

Perception of ‘advocacy’

Advocacy as an art of persuasion is in all probability as aged as law by itself. It is no exaggeration to say that instances are received on great advocacy, when other individuals are dropped on undesirable advocacy. Advocacy in its purest type is typically viewed as, especially in most English-talking African international locations, as a strategy that is made to ultimately persuade an arbitral tribunal to accept the arguments and posture of an advocate and as a result grant the aid that he or she seeks. This objective is preferably attained by carefully knowing the points of the dispute (which is usually rooted in the deal) and remaining able to relay it to the tribunal in a structured and chronological method and aiding the tribunal to recognize the challenges for resolve in the situation that is becoming introduced, in a obvious, efficient and persuasive way, as much as the factual track record and applicable lawful ideas allow.

Arguments are commonly primarily based on lawful precedents (to the extent achievable) and applicable authorized procedures, which are then used to the specifics. When novel and modern lawful challenges existing on their own, advocates in the region are normally anticipated to count on treatises, educational content articles and other secondary sources.

Oral advocacy

Representation of get-togethers in arbitral proceedings

Constraints, where they exist, on authorized representation in advance of countrywide courts in English-speaking African jurisdictions are normally embedded in the related country’s local legislation or court selections. Nevertheless, this kind of restriction is frequently not extended to arbitral proceedings. There is normally no restriction inside of the region on who may possibly symbolize a celebration in arbitral proceedings as quite a few regional regulations do not have specific provisions on illustration. In exercise, nevertheless, lawful practitioners are inclined to depict parties in arbitral proceedings, presumably simply because arbitral proceedings are generally adversarial, and lawful practitioners, with their knowledge in court-place advocacy, are acquainted with the treatment and simple facets of arbitration, while relying on professional proof, where required, for the technical elements of the dispute.

Whether a prospective advocate in advance of an arbitral tribunal ought to be competent in the suitable jurisdiction that is the seat of arbitration differs from a single authorized system to the other. In Nigeria and other related jurisdictions, despite the fact that international counsel advise events in worldwide arbitration, they do not usually act as advocates all through these proceedings.

Selecting the tribunal members

Picking the tribunal is a really vital factor of the arbitral proceedings due to the fact it is generally thought that get-togethers sink or swim with their arbitrators. Exactly where the parties are, by their arbitration settlement, required to pick the arbitrators, they need to acquire treatment to guarantee that capable and acceptable arbitrators are appointed. Notably, the functions ought to appear out for the language, track record and practical experience of the proposed arbitrator candidates. For occasion, in arbitral proceedings that are required to be carried out in English, the parties will have to keep away from appointing an arbitrator who does not have a very good comprehending of the language, so that very little is shed in conversation.

Oral shows

It should be borne in intellect that a tribunal is manufactured up of human beings who are, in most scenarios, affected by ‘human elements’ that are extraneous to the matter of the arbitral proceedings. For example, an unpleasant tone, an annoying selection of words and phrases or an antagonistic disposition in the direction of the tribunal could have a destructive outcome on tribunal customers and finally have an effect on their watch of the deserves of the situation. As a result, advocacy as a system ought to be employed correctly and in the bounds of reason, and an advocate must be equipped to adequately interpret the human things of delight, worry and assurance (amid many others) even though interacting with the actors of arbitral proceedings, like opposing witnesses, advocates, experts and the customers of the tribunal.

Independently, most arbitral tribunals in English-speaking African nations around the world count on an advocate to have a very good grasp of the relevant treatments governing the proceedings as nicely as the principal issues for consideration in the case, and to current those people difficulties in a structured and concise fashion so that the tribunal can observe the advocate’s circumstance and presentation, and to be equipped to remedy any observe-up concerns. It is also vital that advocates realise that a courtroom presentation to a choose could vary from a presentation designed all through arbitral proceedings in particular circumstances, particularly if the associates of the tribunal are not lawful practitioners. It follows, hence, that an advocate really should minimise legalese and empty rhetoric, and be conscious of the viewers at all situations.

Equally, an advocate need to have perception into how an arbitrator’s cultural history influences his or her actions and omissions, and get ready for such. Despite the existence of only two major legal methods, the English-talking African region comprises lots of ethnicities, languages, religions and customs. In certain, faith and ethnicity criteria type a bedrock of the id of some African arbitrators, even much more than countrywide identities.

In most ethnic teams, values of conciliation are emphasised, and numerous customary guidelines are conciliatory in mother nature. An excessively adversarial stance, specially in relation to insignificant procedural difficulties, could be frowned on by some tribunal users. Also, it may possibly be important for advocates to take into account spiritual things by not scheduling arbitral proceedings on or shut to Christian and Muslim holiday seasons, prayer moments and fasting durations. It is as a result needed for each and every advocate to be acquainted with the lawful, social, cultural, spiritual and political backgrounds of arbitrators just before appointment.

All round, an advocate will have to try for a favourable first perception. Overall look is an integral aspect of African values and an advocate’s carry out through original get in touch with and assessment of the initial documents may possibly dull cultural sensitivity. Entire disclosure of proof and a full, still concise, assertion of one’s lawful placement are critical in producing a favourable very first perception.

Examination of witnesses and professionals

The choice and presentation of witnesses and experts in arbitral proceedings slide to the advocate in most circumstances, instead than the tribunal, primarily when the lawful background of the tribunal members is rooted in widespread legislation. A tribunal that is designed up of individuals with a civil regulation background usually strategies its responsibilities inquisitorially.

In any situation, the witnesses and gurus set ahead by each and every occasion will frequently be anticipated to entrance-load their written statements, which will constitute their testimony in the proceedings. These witnesses or specialists can then be cross-examined by the opposing advocate based on the penned statements, if needed, adhering to their adoption as evidence in the arbitral proceedings.

The style of cross-assessment of witnesses to be made use of for the duration of proceedings is mostly dependent on and identified by the lawful traditions (civil legislation/frequent regulation) of the members of the tribunal. This could also notify the types of queries that would be deemed suitable by the tribunal. In any circumstance, the cliché of ‘the sky is the restrict in cross-examination’ is normally not obtainable, as concerns are generally anticipated to be restricted to relevant issues for perseverance. Certainly, the tribunal has, in most circumstances, the power to moderate the array of inquiries devoid of automatically encroaching on the normal liberty afforded to the advocate to cross-look at the witness or skilled.

Cross-evaluation queries would usually be in-depth as the advocate strives to travel property and restate significant points about which he or she wishes the tribunal to get notice.

Advocates need to constantly recognise that track record and jurisdiction develop a chasm in academic basis and, as these (relying on the nature of the make a difference), achievable witnesses and experts would be drawn from a range of the diverse societal classifications. Comprehension this reality implies that the advocate need to endeavour to comprehend the witness and qualified in dilemma to tailor the style of questioning that can elicit the most favourable answers and help his or her scenario. A ‘one size suits all’ method is never acceptable.

Owing to the multiplicity of witnesses’ backgrounds, counsel need to undertake simple and very clear language to express questions, when keeping away from getting way too forceful or having any other steps that could be thought of disrespectful. Witnesses should really often be taken care of with sensitivity.

Performance in the system of cross-examination needs a mixture of employing top queries to steer the witness tactfully in the way the advocate seeks and keeping brevity. Employing the use of extensive-winded concerns results in a chance of the witness, pro or even the tribunal missing the critical place that the advocate seeks to make.

Digital hearings

Arbitration practitioners are not entirely new to virtual hearings in several features of arbitral proceedings. For example, conversations on administrative and procedural issues are normally held by means of telephone and videoconferencing. On the other hand, the covid-19 pandemic has hastened the adoption of virtual hearings in entire scale subsequent the imposition of lockdowns and travel limits in many international locations throughout the world.

Components to take into consideration in relation to advocacy in digital hearings in English-speaking Africa (and most other African nations around the world) consist of time-zone variations, allowance for disruptions due to power outages and world wide web connection problems, information safety and privateness concerns, and issues concerning specialised arbitral proceedings, this sort of as development disputes in which web page visits could be beneficial. There is also a have to have for advocates to recognise that prolonged digital periods may perhaps be inimical to their cause, and hence concur on shorter periods for every single day as well as boost the range of breaks for the duration of the periods.

Similarly, digital hearings do not absolutely express the use of voice intonation, gestures and system language. Advocates really should decide to convey the entirety of their posture by way of uncomplicated and concise language. Most importantly, advocates must make certain they are adequately ready and knowledgeable in the use of digital listening to platforms.

Written advocacy

Even though oral advocacy is presented far more emphasis in frequent regulation jurisdictions that make up the bulk of English-speaking African international locations, the ability of an advocate to express himself or herself in creating is as significant as the means to categorical himself or herself orally. In fact, a few arbitral proceedings, especially building-associated disputes, are carried out only in composing, with no listening to at all.

There has been a shift in the latest years to substantially limiting the time permitted for oral advocacy in courtroom to preserve time and lower the ever-rising charge of litigation. Likewise, many arbitral tribunals are transferring inexorably to created advocacy. The development is to have advocates merely adopt their arguments and use the limited time to adumbrate on specific significant challenges. That’s why, the preference amongst published and oral submissions is not normally an ‘either-or’ scenario.

Pleadings, as well as interlocutory, opening and closing submissions, are expected to be well penned and supported by the appropriate authorities currently being relied on. It is typically thought that the hallmark of good composing is clarity, and that transcends simply staying inside of the confines of regular grammar, punctuation, syntax and semantics. In other words and phrases, a great advocate need to eloquently do the job in direction of a clear goal with each piece of crafting. Arguments on the challenges for dedication must be canvassed in chronological order and devoid of ambiguities.

Conciseness and construction are also essential. This entails becoming brief with an suitable degree of element (depending on the context and topic make a difference included), and conveying points succinctly, without the use of superfluous text. A deliberate and significant composition has to be thought of. For instance, the to start with pair of paragraphs or sections ought to be applied to summarise an advocate’s views as logically as feasible.

Nevertheless, arbitrators from a civil legislation track record may well count on considerably in-depth documents, which include a complete assertion and all particulars and proof in help. An advocate really should be knowledgeable and guided by the background of the arbitrator in getting ready created submissions.

More, whilst most common legislation arbitrators would be prepared to order a celebration to research for and produce documents unhelpful to its induce, some civil regulation arbitrators may possibly be unwilling to grant these types of apps. Irrespective of the aim of the IBA Guidelines on the Using of Evidence in International Arbitration to harmony these things to consider, the creation of files can vary in each and every circumstance. An advocate ought to, therefore, think about the track record of the tribunal associates just before publishing an application for disclosure of files, specially where by these application has a wide scope or will be unhelpful to the induce of the other party.

Concluding remarks

Most English-speaking African nations around the world share equivalent levels of specialist and cultural experience. This affinity can be traced to the actuality that most of the English-speaking legal units in Africa, with a number of exceptions, are cut from the identical inventory – the common regulation system. That getting said, the versatile nature of arbitration encourages arbitral tribunals, advocates and events to construction the applicable procedure to the instances of the dispute and the track record of the advocates and tribunal users. As a result, tribunals are usually keen to undertake options from the frequent regulation and civil regulation devices to achieve performance through arbitral proceedings.

To proficiently signify shoppers in English-talking African nations, there have to be a thorough comprehending of the numerous nuances that could arrive into participate in. Advocates are typically anticipated, in adopting the artwork of advocacy in all its kinds, to be proficient and persuasive in eliciting what is relevant and help the client’s situation, on the foundation of the out there evidence and lawful principles. An superb oral advocate is able of grasping the important troubles of a circumstance and conveying them to the tribunal in the way that very best suits the client’s pursuits. Successful composed advocacy in individual connotes the means to deliver the troubles into the central arena and help the tribunal in owning a significant dialogue with the advocate, where the need to have arises. This, in turn, will aid in a speedy determination of the problems in dilemma.