Alvin Yeo SC and Chou Sean Yu, WongPartnership LLP
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
Advocacy is the art of persuasion and the goal of an advocate is to persuade. In an arbitration, the object of persuasion is the arbitral tribunal.
To effectively persuade the members of the tribunal, an advocate first has to understand how they process information and make decisions. Arbitrators, like all human beings, are complex. They do not make decisions in a vacuum – a submission from an advocate is tested and compared against the arbitrators’ personal perceptions of the world and their own life experiences,and decisions are made through this same lens. These perceptions are, in turn, shaped by factors such as age, gender, place of birth, social and educational background, training, work experience and culture. Culture is ‘the shared knowledge and schemes created and used by a set of people for perceiving, interpreting, expressing, and responding to the social realities around them’. In other words, in coming to their decisions, arbitrators, like anyone else, rely on their ‘sense’ of how things ought to be, and this ‘sense’ is shaped by the cultural and social groups to which they belong. People tend to focus on information that accords with their existing beliefs, and they assess information positively if it is consistent with those beliefs and negatively if it discredits them.
If tribunal members, advocates and witnesses hail from different backgrounds (as is often the case for international arbitrations), the cultural diversity makes the process of persuading the tribunal complex and often difficult. For example, a tribunal’s assessment of the level of competence expected of a director of a company may vary depending on each tribunal member’s expectations of competency. Even when all the participants to the arbitration are Asian, effective advocacy is by no means an easy task – Asia is a vast, disparate region that is home to a myriad different countries, cultures, religions, races, languages and legal traditions.
Developing an advocacy strategy before an Asian tribunal
The following section discusses what an advocate can consider and do when appearing before a tribunal consisting predominantly of Asian members, who are perhaps not cut from the traditional ‘international arbitrator’ cloth.
Where an arbitration involves arbitrators and advocates from different cultures, issues may arise from the inevitable differences in communication methods, meaning of communications, mental interpretations and behavioural expectations. For example, ex parte communications with arbitrators are generally prohibited in Western countries, but it is not uncommon in jurisdictions such as China, where an arbitrator may also take on the role of a mediator in the same dispute.The Hong Kong Court of Appeal had granted leave to enforce a China-seated award (and dismissed a challenge on grounds of bias) where an arbitrator conducted mediation during a private dinner with (and paid for by) one party in the absence of the other, on the basis that such a practice was found to be acceptable by the courts of the arbitral seat.Differences can even be seen from something as seemingly minor as deciding how long the tribunal should sit on a particular day or perhaps on which days to sit. For instance, considerable deference should be made to avoid a hearing over noon on a Friday if one of the arbitrators is a Muslim. Equally, a hearing during the month of Ramadan should perhaps also be avoided, where possible. Similar caution should be exercised when scheduling hearings close to major festivals in Asian countries, for instance, the Golden Week in China or the Lebaran festival in Indonesia.
Accordingly, effective arbitration advocacy starts with getting to know the members that make up the tribunal and understanding their likely attitudes and beliefs, and how these attitudes and beliefs might be changed if necessary. With this understanding, an advocate can frame his or her arguments and develop a targeted presentation of the case that will resonate with the tribunal members and motivate them to decide in his or her favour. For instance, a retired Asian judge from a more formal national court structure sitting as an arbitrator may be more comfortable conducting proceedings in a manner not too dissimilar to his or her former environs. A good advocate must therefore be prepared for such cultural differences, which perhaps may not represent the international norms that he or she is used to.
An advocate’s job to persuade can perhaps be made easier through the thoughtful selection and nomination of an arbitrator with the desired understanding of the legal and business culture for the case at hand. Since it is safe to assume that arbitrators talk to each other about the case during arbitration and deliberations, such an arbitrator can play the role of a ‘cultural intermediary and translator’ by explaining the social and cultural intricacies relevant to the dispute (the understanding of which may be helpful or even essential to the advocate’s case) that the other members of the tribunal might otherwise be unable to comprehend because of inexperience or lack of knowledge. A civil law arbitrator may, for instance, be better placed to understand the business law norms of an Indonesian or a Japanese party.
How to cross-examine Chinese speakers
Anyone who has taken part in advocacy trainings on cross-examination has been taught to ask questions that call for short, ‘yes’ or ‘no’ answers. However, this type of questioning often tends to be less effective when it comes to Chinese witnesses. Chinese people tend to be less direct than Westerners, and will frequently express themselves in a roundabout way instead of using explicit language. Pressing the witness to answer a question will rarely help, and might come across as rude or inappropriate in the eyes of Chinese arbitrators. Western lawyers who are cross-examining Chinese witnesses should, therefore, be prepared to ask the same questions from different angles, consider asking more open-ended questions, and be prepared to leave markers for the transcript in circumstances where a line of questioning fails to achieve the desired result. Another frequent difficulty arises from the complexity of the Chinese language, which almost invariably results in difficulties of interpretation during cross-examination. Speaking slowly is therefore essential, and it might sometimes be advisable to consider consecutive, rather than simultaneous, interpretation.
– Emmanuel Jacomy, Shearman & Sterling LLP
It is not the intention of this chapter to explore the precise differences in communication and behavioural norms that exist between arbitration participants from different cultures. However, we will briefly discuss a few points of which an advocate can usefully take note.
If the language of the arbitration is English but English is not the first language for one or more participants, or if the participants have varying levels of proficiency in the language, it is necessary for the advocate to tailor his or her written and spoken communications to ensure that everyone involved can understand them. In such situations, an advocate may wish to adopt clear, simple and concise language without colloquialisms, while at the same time ensuring that the language used is not so basic as to lose the interest of an arbitrator whose first language is English. Conversely, if the arbitrator’s first language is not English, the advocate would do well to ensure that his or her oral submissions are clearly understood.
Efficiency versus cultural sensitivity
That parties should have a reasonable opportunity to present their case has become widely accepted international practice. Some lawyers from developing countries lack the advocacy skill to efficiently help their client to present the case. International arbitration is an activity in which one side can easily be a relative newcomer. Arbitrators should give some consideration and additional opportunities for them to present their client’s case.
In addition, lawyers in many common law countries are not familiar with advocacy skills such as cross-examination. Many lawyers may have to use language of arbitration that is not necessarily their native language. To be patient with the advocacy of these lawyers is a must for international arbitrators.
Having a flexible attitude to meet the conflicting interests of disputing parties is a delicate balance that the arbitrators should work out with the parties who come from different legal and cultural backgrounds so that the arbitral procedure will not be unreasonably delayed and, at the same time, parties will have real and reasonable opportunities to present their case.
– Jingzhou Tao, Dechert LLP China
An advocate also has to be cognisant of the fact that translations are rarely perfect – words spoken by a native English speaker may not have the same meaning once translated into another language, and vice versa. With the rise of cross-border arbitration involving international parties, being conversant in multiple languages or having an advocate on your team with this linguistic capability can only be an advantage.
Technical language proficiency aside, the manner in which people communicate, both verbal and non-verbal, differs from culture to culture, notwithstanding the fact that they might be speaking the same language. Participants in an arbitration frequently converse in the same language but sometimes do not fully understand the meaning of or the reasons behind what is said, resulting in them talking past each other. Words, facial expressions, body language and gestures can be interpreted differently by people of different cultures. This is particularly the case for South Asians, where a shake of the head may mean an affirmation of a point rather than a denial. Further, something as simple as a wave of the palm can carry multiple meanings, and can be read in a different manner depending on a person’s culture.
Style and tone of communication
Apart from language, an advocate should also be aware of the cultural sensitivities of the tribunal members and tailor the style and tone of his or her communications accordingly, to maximise the persuasiveness of his or her message.
For example, an American litigation lawyer who is used to advocating before lay juries in the US courts may subconsciously advocate his or her case in an international arbitration with the same level of aggressiveness as in an adversarial system. Accustomed to oral depositions of witnesses where the ‘goal often is to create . . . short snippets of testimony in the form of admissions that can be inserted into summary judgment papers . . . to show the presence or absence of factual issues’, he or she may also carry over the same aggressive, accusatory questioning style when cross-examining witnesses in international arbitration. This would not be well received by an East Asian civil law arbitrator who is more used to an inquisitorial and conciliatory approach, and who, because of social conventions influenced by Taoist or Confucian precepts that define how East Asians behave and communicate, is sensitive to behaviour that implicitly diminishes the position of the recipient and results in a loss of face. If one or more members of the tribunal hails from an East Asian jurisdiction, an advocate may wish to consider adopting a measured and neutral tone in his or her communications, while explaining the case in a clear, concise, accurate, reasoned and authoritative way.
An East Asian arbitrator also may not appreciate a zealous and aggressive cross-examination of an elderly Asian witness. Deference and courtesy are important, expected behavioural norms for an advocate who wishes to command the respect of an Asian arbitrator.
Similarly, an East Asian arbitrator may not favour the arguments of an advocate who is not alive to the nuances of the ‘high context’ communication style (i.e., with much of the meaning derived from the background culture and left unsaid) of an East Asian witness (as opposed to Western ‘low-context’ communication styles, which are generally more explicit) and who, as a result, relies on the witness’s apparent reticence as evidence of a lack of credibility.
An advocate therefore has to be mindful of and sensitive to cultural differences in his or her communications and behaviour during the arbitration, so as not to offend any arbitrators and other participants to the arbitration or detract from the persuasiveness of his or her arguments.
Role of mediation and conciliation
An international arbitration advocate should also be aware of and prepared for the importance of mediation and conciliation in some Asian cultures, and their influence on the arbitration process. As a result of the influence of Confucian values and principles in some East Asian cultures, non-confrontational methods of conflict resolution (such as mediation and conciliation) have historically been the preferred methods of dispute resolution in countries such as China and Japan, and are still ingrained in their legal cultures. This can be seen in the arbitration laws and rules of arbitration institutions from these countries. For example, the arbitration laws and rules of China, Hong Kong and Japan contain specific provisions for conciliation, mediation and settlement to be conducted by the arbitral tribunal, and for the tribunal to render an award in terms of the settlement. Arbitral tribunals comprised of Chinese or Japanese arbitrators may therefore expect, or even request, parties to attempt to mediate and reconcile their differences before the substantive hearing; it is a widely held perception among Chinese arbitrators that it is the goal of the arbitrator to ensure that parties are able to preserve their long-term relationship. It has been observed that in countries like China, Korea and Japan, contracts and legalism are seen ‘as something as of a last resort, [used] only if personal relations and verbal agreements fail’. A survey conducted with Chinese arbitrators showed that they regard the combination of mediation and arbitration as ‘reflective of traditional values’, including that of ‘the pursuit of harmony’ and ‘avoiding litigation’. Similar cultural influences exist in other parts of Asia. For example, Indonesia’s underlying philosophy of Pancasila calls for ‘deliberation to reach a consensus and discourages contention in all things, where possible’. Advocates who appear unprepared for, or unwilling to attempt, reconciliatory measures may be perceived as insincere and disrespectful towards the dispute resolution process.
A good example of cultural differences – traits of Asian witnesses
In this era of cross-border disputes and globalisation, arbitrators need to be sensitive to cultural differences and different legal traditions. Tribunals must earn the respect of all parties involved, which invariably means affording them, their culture and their laws the respect they deserve. There may also be a mismatch of representation, which needs to be recognised sympathetically. For Asian witnesses, aggressive cross-examination that makes them lose face may backfire with the tribunal, particularly if they are based in Asia. Asian witnesses may smile during cross-examination but this is not a sign of agreement with the other side’s case, or a show of disrespect. Conversely, in some Western cultures, they see this as a sign of mental instability or a suspicious attempt to win over the tribunal.
– David Bateson, 39 Essex Chambers
Know the opportunities for persuasion
Besides knowing the tribunal, it is also important for an advocate to recognise that advocacy is not just about oral or written submissions at the merits hearing. An arbitrator’s decision-making process starts from the time of his or her appointment, as that is when he or she starts to evaluate and assess the parties, their advocates and the information presented. While written and oral submissions represent the two most obvious opportunities for advocacy in international arbitration, every action taken, and every contact with, statement made or document submitted to the tribunal at every stage of the arbitration represents an avenue for persuasion, and should be made with the ultimate aim of instilling confidence in one’s case and the result sought in the tribunal. This is particularly the case for arbitrations involving Asian parties and arbitrators.
Even though parties to an arbitration generally agree (failing which, the tribunal would direct) on the arbitration rules that lay out the basic procedure for the arbitration, differences in the individual legal traditions and practices of advocates and arbitrators still often give rise to different expectations of how these rules are to be applied and followed. While the many differences between the legal traditions and practices of different countries cannot be oversimplified, there are striking differences between the two legal families to which most legal systems belong – that is, common law and civil law; to further complicate matters, there are significant procedural differences that exist even within the two legal families. An international arbitration advocate seeking to persuade members of a tribunal from different legal systems would be well advised to keep these differences in mind when formulating a persuasion strategy.
While pleadings are an essential part of every arbitration and institutional arbitration rules provide for the submission of such documents setting out each party’s case, there is no fixed precept in international arbitration on (and the institutional rules often do not stipulate) how detailed a party’s pleadings must be. Some arbitrators and advocates would be used to, and may prefer, a concise document setting out central propositions of fact and law on which the party relies, while others may expect a full statement of a party’s case, complete with all the particulars and evidence supporting it. An advocate therefore has to take into account the background and likely preferences of the members of the tribunal in deciding the level of detail of the pleadings, so as to ensure that the party’s case is effectively conveyed and easily understood.
An arbitrator from an Asian jurisdiction with a common law heritage (likely to be inherited from the British) would perhaps be more accustomed to exhaustive pleadings than an arbitrator from a background where pleadings play a less important role.
One can expect a party to voluntarily disclose all documents on which it relies and that are necessary to support its case. But what about relevant documents that a party chooses not to disclose, perhaps because they are unhelpful to its case? Common law arbitrators and advocates would be familiar with applications and orders for document production to compel a party to search for and produce these documents; however, this practice may not be palatable to Asian civil law arbitrators and advocates since, with their legal background, parties are generally under no obligation to disclose documents in their possession or control that are unhelpful to their case, and civil law courts in Asia generally refuse to assist with such applications.
While the International Bar Association’s (IBA) Rules on the Taking of Evidence in International Arbitration aim to balance common and civil law approaches in respect of document disclosure, it has been observed that the extent to which production of documents is granted is still unpredictable and differs from case to case. The overall structure in different arbitration proceedings may appear similar, but their details may differ significantly as a result of arbitrators from different legal and cultural backgrounds employing their own approaches within the framework set out in the IBA Rules. This phenomenon is certainly true in Asia.
An advocate should therefore take into account the legal background of the members of the tribunal in deciding how best to pitch an application for document disclosure, and the scope of disclosure sought. For example, an Asian civil law arbitrator may view a request for a wide-ranging discovery order to be a redundant and inefficient exercise that slows down the arbitral process, and be less inclined to grant it. The submissions would therefore have to be tailored to take into account such sensitivities.
It is fairly standard practice in international arbitrations for parties to tender statements from their witnesses prior to the substantive main hearing. However, cultural differences may give rise to different expectations regarding the scope and content required in such statements. Asian civil law advocates and arbitrators may expect witness statements to simply set out a short summary of the evidence or topics on which the witness may address the tribunal at the hearing, with the witness to give evidence beyond the statement during the hearing; whereas common law advocates and arbitrators may expect witness statements to cover every point at issue and contain everything the witness has to say. Where there is ambiguity on the expected scope and content of witness statements, an advocate in an international arbitration may wish to seek the tribunal’s directions on this issue so that he or she can prepare the witness statements in the form that would be most persuasive to the tribunal.
One thing an advocate should note when dealing with witnesses from Asian countries where business cultures are heavily influenced by Confucian ideals (such as China, Japan and Korea) is the importance and influence of hierarchy in business organisations. In these countries, junior employees may not feel comfortable about disagreeing with someone of a higher level in the business hierarchy, and may in fact go out of their way to ensure that their recollections are consistent with their more senior colleagues. As observed by a senior arbitration practitioner, the junior employee does this not out of a desire to be dishonest, but because of a perceived duty to support and be loyal to one’s superiors, such that if the junior employee’s account is inconsistent with that of a more senior employee, the more senior employee must be right. An advocate should be aware of this possibility when confronted with consistent accounts that seem too good to be true, and when dealing with his or her own witnesses, take the necessary steps to pre-empt the probability that the truth would be revealed in cross-examination during the substantive hearing.
Use of experts
A good advocate should be aware that whether a tribunal considers an expert to be reliable or qualified may depend on culture-driven expectations of each tribunal member, and this should therefore be a factor to be taken into consideration when selecting experts.
In recent years, arbitral tribunals in Asia have increasingly adopted the practice of witness conferencing, or ‘hot-tubbing’, as the preferred method of expert evidence presentation. As with general cross-examination, even when posing questions to an Asian witness, an advocate should keep in mind the Asian sensitivity to ‘loss of face’ and not be overly aggressive in his or her questioning. Some Asian experts can be fairly modest and less participative when engaged in a witness conferencing session and a good advocate would have to be astute to ensure that his or her expert’s effectiveness is not diminished because of a cultural disposition.
‘A good lawyer knows the law, but a great lawyer knows the judge.’ While this phrase is often used in a humorous manner to depict the legal profession, it encapsulates one essential quality of a good advocate, which is to understand the attitudes and beliefs of the decision makers. As highlighted in this chapter, an advocate in an international arbitration involving participants from different cultures in Asia should go beyond that and seek to understand not just the members of the tribunal, but all the participants, including witnesses and opposing counsel. Only then can an advocate develop a persuasion strategy that is truly effective.
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