Hilary Heilbron QC and Klaus Reichert SC, Brick Court Chambers
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
Closing arguments or submissions are the culmination of the advocate’s role in the arbitral process, and they are often key to the end result. They are the ultimate reference point for an arbitral tribunal wanting to write its award. They bring together the strands in the case and, more particularly, the documentary and oral evidence. They contrast with opening submissions, which can only be introductory. Closing submissions, on the other hand, are produced at a time when the tribunal will have heard the full story from both sides. More particularly, they provide the last chance to persuade a tribunal of a party’s cause. It is often said that the written submissions should be a draft for the award. However, that should not be viewed as an invitation to rewrite or replead a case. Rather, closing arguments represent an advocate’s key moment to focus on what is important and to persuade a tribunal why their side wins or, more particularly, why the relief sought should be granted or refused, as the case may be. This chapter gives some guidance on how to proceed.
Persuasion, not prolixity, is the key. Time may be curtailed and, thus, distracted discourse on irrelevant points can mask the more important issues. This could, at best, waste time or, at worst, throw the tribunal off the course the advocate wants them to follow. A particular challenge in closing arguments, whether made in writing or orally, is to consider the purpose of the submissions made, to ask oneself why a particular point is being made and whether it is necessary: is it, for example, to correct an erroneous impression made by the other side, or to clarify certain misconceptions in the factual evidence or legal argument? Most critically, will the submission assist the tribunal in its deliberations? They also have to be attuned to what the tribunal is likely to consider important. A subjective view of one’s own case and what are believed to be the key points without analysis of one’s opponent’s case may not necessarily be what assists or persuades a tribunal. Mistakes at this stage can be costly, as the record will close fairly shortly thereafter and the opportunity to undo damage will simply not be available.
Closing argument should do just that – close down
Opening argument should provide an overview of the case, identify the points truly at issue as the hearing commences and provide the advocate’s position on those points, without necessarily previewing all the points the advocate hopes to bring out during the hearing. Closing argument should tell the tribunal what actually happened at the hearing, take account of the full record as the evidence closes, and explain why the position laid out on opening was confirmed and vindicated. There can be no question that cases will develop during a hearing, sometimes substantially so. But the opening and closing should remain symmetrical – the closing will layer the narrative with the points made and the evidence elicited during the hearing, but it should order the universe in the same way as did the opening, and hopefully the pleadings from the very beginning. Closing argument should do just that – close down, from the advocate’s perspective, all open points.– Donald Francis Donovan, Debevoise & Plimpton LLP
Closing submissions versus post-hearing briefs
There is no hard and fast rule as to how closing arguments are to be given. There are many variants, but the main alternatives are:
- exclusively oral submissions, either directly at the end of the witness testimony or some time thereafter;
- exclusively written submissions or post-hearing briefs, usually delivered a short time after the end of the oral hearing; or
- a combination of both, with the written submissions coming before or after the oral submissions.
Ultimately, the primary consideration is what method will most assist the tribunal. Counsel should also bear in mind that, by the end of the evidential hearing, the tribunal will be very familiar with the nuances of the case. This in turn enables it to have a much greater degree of control over what is the most appropriate course to adopt in relation to closing arguments. Depending on the legal culture of its members, and that of the parties and their counsel, tribunals in international cases are usually guarded in the run-up to a hearing about becoming too prescriptive as to what form the parties’ arguments might take, whereas at the conclusion of the main hearing, a tribunal is in a much better position to make an informed decision as to what it really wishes to hear.
First, a cautionary note: too often counsel, particularly those not experienced in international arbitration, provide submissions they think will assist the tribunal that do not necessarily do so. The increasing tendency to provide ever longer written submissions taking every point, in which the good points get obscured, is often counterproductive. It is worth remembering the old adage: ‘I would have written a shorter letter, but I did not have the time.’ (Seemingly a slightly roughly hewn translation from Blaise Pascal’s original and leisurely, ‘Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.’)
Frame the case in the manner that will provide a decision-making road map
An effective closing argument – whether made orally or in writing – does much more than summarise the evidence presented. The advocate should use the closing to frame the case in the manner that will provide a decision-making road map for the tribunal; and to indicate not only why one’s client wins on a certain issue, but the consequences of that decision for other issues.
If arbitrators can understand that, because of one decision, certain other issues no longer need to be decided, it makes their internal deliberations and the ultimate award-writing much easier. A decision tree can be very effective in this regard.
It is most satisfying when arbitrators adopt the analytical method that one has provided in the closing arguments.– David W Rivkin, Debevoise & Plimpton LLP
The tribunal will be deeply aware of its need for a road map
The key to closing argument (not unlike opening argument or, for that matter, post-hearing briefing) is a clear road map not only of the case but of counsel’s case in particular. A possibly very long and potentially quite disjointed set of hearings may have just taken place, without any single compelling framework of analysis having taken hold. Countless bits of evidence and argument will have surfaced, but they might not have readily arranged themselves in any particular analytical order.
The reality is that by the time of closing arguments, the tribunal will itself be deeply aware of its need for a coherent and apt road map. It may not yet know its likely position on myriad issues in the case, but that will not lessen the urgency of a road map coming into focus. One of the ways in which counsel can best serve his or her client at this juncture is to provide a road map that is not only compelling in itself but also distinctly advantageous to the client’s interests. No single assertion uttered in closing argument will be of much use if it does not align itself with that road map and move the tribunal inexorably in the right direction.– George A Bermann, Columbia University School of Law
It is therefore good practice (perhaps essential) to discuss with the tribunal at the end of the hearing what method of closing submissions the tribunal considers will assist it. Sometimes the tribunal will highlight issues or questions that are troubling its members and on which further submissions would help. In other cases a tribunal may pose specific questions (see below). Tribunals may set page limits on written submissions or make other directions, such as that there be a finalised list of issues and that the parties address the issues in the same order in each of their submissions. A tribunal will also discuss whether and when oral submissions would be useful.
Submissions or briefs?
When it comes to closing submissions versus post-hearing briefs, it should be ‘one or the other’, depending upon the complexity of the case. In simple cases, closing submissions are to be preferred. On the other hand, if the issues are complex and many witnesses and experts have been heard, post-hearing briefs may be appropriate. They should be limited in terms of number of pages and focus on the evidence that has been presented during the hearing. The tribunal should also indicate to the parties on what issues they should concentrate and those that do not need further development. Finally, they should also be filed within a relatively short period of time. With time passing, memories fade and the momentum of the hearing tends to be lost.– Bernard Hanotiau, Hanotiau & van den Berg
Generally as to written submissions
In complex cases where there is no one core or decisive issue, written submissions or post-hearing briefs (which are the same product but with a different nomenclature) are usually essential. Their disadvantage is that there is always a hiatus, sometimes quite long, between the hearing, when everything is fresh in the tribunal’s mind, and the delivery of the written submissions. The timing of post-hearing briefs is, invariably, in the hands of counsel and, therefore, they should be mindful of not inadvertently diluting the tribunal’s appreciation of the case with a long hiatus. However, written submissions or post-hearing briefs in a complex case should bring together in one place all the information that a tribunal needs to write its award, including, in particular, guidance as to which documents and evidence the tribunal should give special attention. Generally, the more complex the case, the more likely it is that written submissions will be of greater assistance to the tribunal.
Oral closing arguments – a rarity
I regret very much that oral closing arguments are rare in international arbitration today. They were very common in the national courts of Canada when I was practising as an advocate many years ago.
Oral closing arguments afford a lawyer the opportunity of having an interactive relationship with his adjudicators. You soon find out the issues that are troubling the judge and you can deal with them, then and there.
There is little advocacy, as I understand the word, required in the preparation of written post-hearing briefs! One hybrid method for closing arguments which I favour directs written submissions followed by an oral hearing when members of the tribunal put questions to counsel arising from the written briefs.
But I miss the days of the oral closing arguments where, as an advocate, you could review the factual matrix of the case as well as the legal issues and engage in a constructive dialogue with the judge. Some 30 years ago, after a nine-month trial in an antitrust case, my oral closing arguments lasted four days. The president of my client company said to me afterwards: ‘Yves, you know more about my company than I do.’ ‘Yes,’ I replied, ‘but Bill, in one week, I will have forgotten it all.’– Yves Fortier QC, Twenty Essex Chambers and Cabinet Yves Fortier
If allocated two hours for your closing, plan it for an hour and 45 minutes
Be mindful of time limits. You want the decisions about what to cover and what not to cover to be your decisions, not to have them made for you because you ran out of time. If the tribunal allocates two hours for your closing argument, plan it for an hour and 45 minutes. I once argued an important case in which the tribunal allowed each side three hours for closing argument. My co-counsel and I divided the argument and finished 15 minutes before our time was up, to the tribunal’s pleased surprise. Our opponent (which chose both to divide its argument among multiple lawyers and to put every word of it on slides) still had 60 of several hundred slides remaining after three hours and 15 minutes, when the tribunal abruptly told them they were out of time and ended the session.– John M Townsend, Hughes Hubbard & Reed LLP
Generally as to oral submissions
Exclusively oral submissions are, in current practice, relatively rare in international arbitration, save where the case is fairly short and the issues not too many or too complex. Oral submissions have many advantages. They distil and analyse the evidence at a time when it is fresh in the minds of the tribunal and thus avoid any preliminary views becoming subtly entrenched or, indeed, dissipated, owing to the passage of time, in the minds of the members of the tribunal while waiting for written submissions.
The disadvantage is that it may involve some burning of the midnight oil for counsel in the short time between the conclusion of the evidence and closing argument. In countries where oral advocacy is the tradition, this is not uncommon. Particularly if submissions are to be given exclusively orally, it is good practice to accompany them with a short written skeleton or index to the arguments being made, with the relevant transcript references, as well as cross-references to the relevant paragraphs in the opening submissions, so that the tribunal can look back to them when writing its award.
Generally as to both written and oral submissions
A combination of oral and written submissions does seem to be becoming more common. Oral submissions before written submissions are of limited use. They are far more useful when the tribunal has had the opportunity to digest the written submissions and can then give directions as to the particular issues on which it requires further oral submissions. However, some tribunals are reluctant to do this in case they are seen to give some indication as to how their minds are working. Nonetheless, the prevalent practice does indicate that tribunals, following receipt of the written submissions, give in advance a steer on what they would like to hear during the forthcoming oral submissions. Often this is carefully phrased with ‘the parties should not make assumptions as to the questions being asked’ or ‘assuming, without finding, that . . . , then please tell us . . .’.
Aim for Caesar, not Cicero
You should strive for a certain degree of rhetorical excellence. At the same time, you must keep in mind what the Romans said about two famous orators in ancient Rome. When Cicero spoke, the comment was: ‘By Jove, that was a beautiful speech.’ But when Caesar spoke, the Romans said: ‘Let us march.’ Put differently: your closing argument must seek to induce the desired action: an award in favour of your client.– Kaj Hobér, 3 Verulam Buildings
One of the practical problems with oral submissions after the written submissions is finding a date for them to take place, and it is always desirable to put in a provisional time for them when fixing the time for the hearing. Parties, and tribunals, should not overlook the fact that merely because a date is tentatively set for post-hearing oral submissions, it does not inevitably mean that it will be used.
Generally as to which method to use
Save where parties can agree that a particular post-hearing process will be used, the tribunal tends to be in the driving seat when deciding on closing arguments. Counsel should be alert to this fact. The tribunal’s knowledge of the case will have accelerated dramatically during a hearing and it is a matter of practical reality (and actual experience, rather than abstract theory) that a lively exchange of views between counsel, or between counsel and the tribunal, on matters of evidence and law focuses minds in a way that no words on a page can ever achieve.
Moreover, a tribunal will be concerned to adopt a post-hearing process that is proportionate in terms of time and cost to the case before it. Every moment spent by a tribunal and, more particularly, huge teams of counsel in an international arbitration incurs very substantial costs, most of which are usually paid for by the losing side. The drumbeat of concern about time and costs, regardless of who may be at fault and whether the concern is based on perception or reality, is such that no tribunal can ignore it. In any event, a tribunal made up of experienced and busy arbitrators, many of whom will have acted regularly as counsel, will not want to encourage wasteful writing or invite wasteful reading upon themselves.
Perhaps the most succinct way of answering the question as to which method to use is for counsel to place themselves in the minds of the tribunal and ask: ‘What will help us most to resolve the issues in this arbitration?’
What to cover and what not to cover
Written advocacy is no different from oral advocacy – its aim is to persuade the tribunal of the advocate’s client’s cause. Written submissions should not be just a narrative: they are advocacy in written form and that is an important distinction. They should be written with the mind of an advocate, not that of a novel author. They should recognise, as previously stated, that unlike at the time of the opening submissions, by the time of closing submissions, the tribunal will be thoroughly familiar with the case and the evidence.
There is no substitute for closing arguments
Nowadays, counsel often ask for longer than needed openings, and plan to use the balance (of the hearing week) on cross-examinations. The possibility of doing an oral closing is just that, if time allows, with the offer of post-hearing briefs increasingly being seen as a good alternative.
But they are not. There is also no substitute for closing arguments. This is because there is no better way for counsel to engage with the tribunal on open issues. Closings provide the ideal forum to answer the arbitrator’s questions and to tie a party’s case to the evidence as it developed over the hearing. Good counsel will sacrifice set-piece openings and unnecessary cross-examination to maximise the benefit of dealing with the tribunal’s question during closing submissions.
As a rule of thumb, for a one-week hearing, try always to reserve the Friday (all or half of it) for oral closings. Prepare and hand out a written, point-form slide deck, in which all essential points are summarised. In an electronic version of the deck, include hyperlinks to relevant transcript passages, exhibits, witness statements, expert reports and authorities. And at the beginning of the week, ask the tribunal to identify particular points or questions it would like to see dealt with in closings later in the week. Finally, time the length of your closing in the knowledge that the tribunal is bound to ask questions and to test you. If your time allotment is three hours, make sure that it takes you no more than two hours to cover your deck. This will leave you the extra hour that you will need to respond to and engage with the tribunal.
Post-hearing briefs are rarely a good alternative. Almost every tribunal will have its initial deliberation immediately after the oral hearing (often they will have exchanged preliminary views in the process of identifying questions they wish counsel to deal with). And the best chairman will have reserved time to tackle the award immediately after the hearing. This means that the award will largely be written by the time post-hearing briefs arrive. And the reality is that they seldom sway a tribunal from the initial views it has reached at the close of the hearing.– J William Rowley QC, Twenty Essex Chambers
It is a time to take stock: to jettison bad points and concentrate on good ones. Closing submissions should not lose the attention of the tribunal and good presentation is very important. A list of agreed issues is often a useful blueprint for the presentation of written submissions and tribunals will sometimes order the issues to be dealt with in the same order so that the arguments of both sides on a particular point can be easily compared.
The following are some considerations to bear in mind. Some may seem to be insignificant, but a tribunal reading long written submissions from two or even three parties needs to be able to distil the key points.
- Good advocacy is to make the point briefly and emphatically. Written submissions often run into hundreds of pages and the good points get lost among repetition and irrelevancy. It is, as ever, the quality not the quantity that counts, and often shorter submissions that are well reasoned are more effective.
Counsel who tells the tribunal that she is about to answer their questions is far more likely to have the tribunal’s attention when she begins
A successful closing argument must capture the tribunal’s attention, and the most certain way to do that is to answer their questions. Few things are as irritating to an arbitrator as the feeling that counsel are not responding to the questions and concerns expressed by the tribunal. Just as in ordinary conversation one can hold the attention of an interlocutor better by talking about what she wants to talk about than what one may wish to talk about oneself, so in closing one can grab the tribunal’s attention by addressing the issues that the tribunal has expressed interest in. This does not mean that counsel cannot reorganise those questions into an order that fits the flow of the argument that counsel wants to make, or that counsel cannot interweave additional (and perhaps more important) points into the argument. But counsel who tells the tribunal that she is about to answer their questions is far more likely to have the tribunal’s attention when she begins. And if she actually answers those questions in the course of her argument, she will hold it until she finishes.– John M Townsend, Hughes Hubbard & Reed LLP
- If a point is to be made, it should be made at the beginning of the paragraph, preferably with the supporting reasons thereafter, either in short bullet points or by way of narrative. Long paragraphs of half a page in which a sentence in the middle makes a point risks the point being overlooked. For example, an advocate might say that the respondent is in breach of a certain clause of the contract for the following three reasons, setting out each separately. The tribunal can then assess each reason in turn. Strategic use of subheadings is also useful.
- Counsel often use footnotes to make points. The typescript is small, so if the point is important enough to make it into the document, it should be made in the body of the text. Footnotes are for references.
- Transcript evidence. There are two points on this:
- First, if a party wishes to rely on a passage in the transcript, it is important not just to extract a passage in one’s favour which is, when read in context, misleading. It detracts from the overall reliance on the presentation, yet happens all too frequently. Tribunals will look at the full passage themselves, or otherwise this is picked up by the opposing side. Slanted presentation, or selectively extracted parts, of transcript evidence can dent a counsel’s credibility with the tribunal and undermine the overall reliability of his or her arguments.
- Second, a judgement needs to be made as to whether to refer to more extracts of the evidence in the body of the written submissions, just give references or include an appendix in which the references are set out.
- The opening submissions. It is usually not desirable to repeat what has been written in the opening submissions but it is useful to cross-refer to particular passages on which reliance is placed, as some of the opening submissions may have been overtaken.
- It is useful to make clear somewhere whether any points have been abandoned and which are new arguments, subject to issues on whether the point was or was not pleaded and did or did not need to be pleaded. Considerable caution needs to be taken with new arguments, as trying to run a new case, even by stealth, will quickly land counsel in difficulty, and may well provoke furious objections from the opponent, with good reason.
Closing arguments must answer the tribunal’s questions
Closing arguments do not necessarily have to be structured around the tribunal’s questions, but the closing arguments certainly must answer the tribunal’s questions. Moreover, counsel should not simply assume that every member of the tribunal will realise that a brief discussion of an issue is meant to be responsive to a specific question from the tribunal. I therefore believe that counsel should explicitly tell the tribunal when they are answering the tribunal’s questions, even identifying the arbitrator who posed the question (if known).– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC
Emphasising evidence on liability
The analysis and reference to the evidence is the main difference between a written opening and a closing submission. By the time of the latter, flesh has been put on the bones of the documents by the oral evidence and the tribunal has been introduced to documents whose full importance may not have previously been appreciated. Drawing together the strands of the documentary record, the witness statements and the oral testimony is the task of the author of the written submission. Making assessments of the individual witnesses may be useful in some cases. This is one of the key purposes of a written submission, as it provides the first opportunity to do this. Comparisons may be made with the written contemporaneous record and what the witness said in oral evidence.
Given the time constraints, the practice in international arbitration is not to put every single point that is challenged to a particular witness, often by prior agreement between the parties or the tribunal. This can leave open arguments at a later stage, particularly in closing submissions, that a particular contested piece of evidence or argument was not put to counsel’s witness and hence the witness’s statement must be accepted as accurate. Such arguments garner little sympathy with most tribunals, unless the point allegedly omitted is a key one.
It follows that counsel should be extremely cautious in calling a witness a liar in writing, but not giving him or her an opportunity at the time of their testimony to correct the position, as tribunals may take a dim view (forensically speaking) of such allegations. This is an area of international arbitration practice that can expose cultural differences in cross-examination. Some cultures, even within the common law world, shy away from directly impugning witnesses because counsel is concerned not to have an answer they do not like on the transcript. Other cultures have no such compunction.
However, it is also the time to distil the documentary record and to jettison those documents that have no bearing on the case other than to increase the number of files lining the hearing room shelves. By the time of the closing submissions, the key documents will have taken on additional practical importance, as most, if not all, of the relevant ones will have been put to the witnesses, or discussed in oral argument. Finding an attractive and manageable way of presenting the documentary evidence that tribunals can access easily is always a particular challenge in written closing submissions.
The closing shouldn’t be a repeat
The closing should not be a repeat of the opening. In closing, a good advocate will explain to the tribunal how the evidence they have heard supports each aspect of the case as set out in the opening. Focus on addressing the issues the tribunal have raised during the hearing. If you are filing a written closing, do not regurgitate word-for-word lengthy passages from your earlier submissions. Don’t selectively quote from the oral testimony or use it out of context. Either your opponent or a member of the tribunal will notice and it will serve only to undermine your case.
An oral closing is to be preferred as you can engage with the tribunal and it will take place while each member of the tribunal’s memory is fresh and before the first deliberations take place. If you are filing a written post-hearing brief, file it as soon after the close of the hearing as is possible.– Juliet Blanch, Arbitration Chambers
Above all else, it must be emphasised that the written submissions do not provide an opportunity to present new evidence, whether oral or written. The time and place for evidence is according to the procedural calendar leading up to the hearing and, insofar as is permitted in any individual case, during the hearing itself. A party stands or falls on the evidential record. If a party has not been attentive to its evidential burden during the arbitration, closing argument is not the occasion to cure such lacunae. Conversely, it is the precise opportunity for the other side to point out any lacunae in proof.
The closing submissions will be the last opportunity to analyse the expert evidence and to point to areas of agreement and disagreement, particularly in relation to the experts’ oral testimony. A simplification of difficult points is always of assistance to a tribunal. As with the evidential point described just above, the closing argument is not the time for an expert to run a new theory that perhaps he or she might have thought of (or thought better of) earlier in the process. In short, by the time of the closing submissions, parties stand or fall on the expert evidence already placed before the tribunal.
Similarly, caution must also be observed in seeking to impugn the integrity or expertise of an expert after his or her testimony. Many arbitrators might well view doing this in the closing submissions as rather unfair (though again, one needs to be attuned to the legal culture of those involved) and something that should have been done when the expert had an opportunity to respond.
Quantum is too often seen as the poor relation as regards time spent on argument, but in fact it is critical to the result in most cases. Success on liability is but a pyrrhic victory in cases where there are substantial issues on quantum. An analysis of the expert evidence, as tested in the hearing, in that respect is essential. Unrealistic claims are not persuasive and undermine the credibility of the sums claimed. Suggesting realistic figures can be helpful. This is one of the areas where tables or graphs may be of assistance. However, again, caution must be exercised at the closing argument stage so as not to stray into making a new case or advancing a new theory.
The advantages of an oral closing
Closing oral arguments can be very useful for the arbitral tribunal if the counsel are able, in the limited amount of time allocated, to summarise the key arguments relating to the position of the party that they represent.
To increase their efficiency and usefulness, it is advisable to submit to the arbitral tribunal a skeleton of such arguments (so that the members of the arbitral tribunal can better understand the way they are structured) containing cross-references to the exhibit numbers of the relevant key factual or legal exhibits.
Since not all counsel may have the necessary oral advocacy skills, some of them may prefer to file post-hearing briefs. In a very limited number of cases, such as in large construction arbitration cases, it may be helpful to have closing arguments in addition to post-hearing briefs and (possibly) rebuttal post-hearing briefs.
However, for certain arbitration cases, closing oral arguments might be preferred to post-hearing briefs.
It is advisable for a court reporter to record the closing oral arguments so that the members of the arbitral tribunal can focus their attention on following those arguments without having to take notes. Moreover, when deliberating, the arbitral tribunal will be able to refer to the transcript.
Another advantage of the closing oral argument is to prevent the filing of endless written submissions, although a similar objective can be reached if the arbitral tribunal limits the number of pages of the post-hearing briefs.
When there are too many issues to be addressed or when matters are extremely technical, it may be preferable to replace closing oral argument with post-hearing briefs.
A key advantage of closing oral arguments over post-hearing briefs is to allow a discussion with the arbitral tribunal, whose members can raise any remaining questions to seek further clarification before retiring for their deliberation.
Last but not least, closing oral arguments are far less costly than post-hearing briefs and contribute to the efficient conduct of the proceedings, since by experience counsel request less time to prepare closing arguments than to prepare post-hearing briefs.
Some practitioners consider that closing oral arguments and post-hearing briefs are not necessary and are a waste of time and money. Based on my experience, and in particular my practice as arbitrator, I strongly disagree and have almost always found them helpful for the understanding of the case and for drawing the arbitral tribunal’s attention to the key elements that emerged from the final hearing and to their relevance for the parties’ respective positions, as well as for the decisions to be made by the arbitral tribunal.– Pierre-Yves Gunter, Bär & Karrer
Interest is a topic that generally only arises for thorough examination at a late stage in an arbitration and may well have significant monetary consequences. While a discourse on the subject of interest is beyond the scope of this chapter, counsel must bear it in mind in discussions with the tribunal as to how and when it is to be argued in detail, and which tools (such as an Excel spreadsheet with the necessary formulae built in) would make for efficiency in calculation.
A tribunal will generally be more impressed with a party that has sufficient self-confidence to concede a quantum point if the evidence has not materialised. Depending on how the claims for relief have been structured (and by the time the closing arguments are made, trying to change these may be all but impossible), a bad quantum point pursued or contested to the bitter end may actually imperil other, better, aspects of the claims made or challenged.
Often, and regrettably, the law takes a practical backseat until the closing submissions, notwithstanding earlier directions to have all legal argument fully articulated in the opening memorials. The closing submissions, insofar as arguments on the law are concerned, must be highly specific, and within the boundaries of the theories already advanced.
Counsel should be discriminatory in the legal materials put into the written submissions, as a plethora of citations (where effectively the same thing is said over and over again) may well lead to the importance of the point being lost. While legal cultures do vary, with some common law systems having the potential for a citation to innumerable cases on every line of a written submission, counsel should always ask: ‘Why are we putting this before the tribunal and what essential forensic utility does it have?’ Also, apart from the cost of having a tribunal read large amounts of legal authorities, consistency in legal literature and case law may not always be perfect, and the more a tribunal has to read, the more one might have the key message diluted by divergent opinions, even if on minor matters. Attempts to agree principles of law are to be encouraged and one solution offered for consideration is to have parties exchange submissions on law only (i.e., just the principles) in advance of the analysis of the case at hand in the fuller closing submissions.
Reply closing submissions
In complex cases, parties often ask for the opportunity to produce reply closing written submissions. These can often be useful and can answer a bad point made by the other side by referring to additional evidence or law. However, they do add to the overall delay. One common mistake made by counsel is to repeat the arguments made in the initial written closing submission in response to points made by the other side. This is a bad practice. The reply closing submissions should merely deal with specific points that need to be addressed. It is assumed that the earlier arguments will remain extant.
One matter that needs to be discussed with a tribunal is when submissions on costs should be made. Some tribunals require or suggest that these be provided in advance of the award: other tribunals issue a partial final award and then hear submissions on costs. Argument on and disposition by award of costs is beyond the scope of this chapter. It is simply noted at this point as an important aspect of the post-hearing stage of an arbitration.
The art of making any oral submissions, including closing submissions, is likewise the art of persuasion. This calls for good advocacy of a different sort from written advocacy, such as speaking slowly and clearly, presenting points in a systematic way, being able to parry questions from the tribunal and not just reading from a text without even looking at the members of the tribunal. Interaction with the tribunal at this stage is very important and a ready knowledge of the case plus references is essential.
The scope of the submissions may be circumscribed by guidance from the tribunal and whether or not there are to be independent, detailed written submissions before or after any oral submissions. There is also likely to be a time constraint, sometimes as short as a couple of hours for each side. Thus, focusing on the good points in the case and grappling with important difficult issues is critical. The less important points can be dealt with by cross-referencing to other material or submissions (such as a note or skeleton argument handed to the tribunal at the same time).
It is important not to lose the tribunal’s interest by spending endless time on points that will not ultimately determine the case. Counsel should at all times bear in mind that the tribunal’s ultimate task is to decide whether to grant or withhold the prayers for relief, and focusing attention on what is needed in that regard is most effective.
A tribunal will most likely feel much less constrained during oral closings and engage, actively, with counsel in testing the case and the arguments presented. Counsel needs to be sufficiently adroit with preparation so as to field questions of whatever nature that might come their way. Indeed, one particularly useful exercise is to compile a list of all possible hostile questions that may be asked against one’s own case in light of the hearing and to work out answers to each in order to disperse any potential damage. In that way, anything a tribunal might ask during oral submissions can be readily dealt with.
Finally, counsel should not be surprised if the tribunal asks questions that seek to have a party nail its colours to the mast on a particular point. While a party may well wish to run a number of alternative arguments throughout the lifetime of an arbitration to keep its options open, a tribunal may well take the opportunity during oral closing submissions to put such a party to its election. Evasiveness at such moments can highlight the weaknesses in a case, as can a rushed answer.
Closings structured around tribunal questions
As already noted, tribunals regularly pose questions to parties in advance of the filing of written submissions, or before oral closing argument. Counsel can derive particular assistance from such questions, particularly if they are focused on what is uppermost in the minds of the tribunal members.
Parties should not get too carried away by the tribunal’s questions, as they are normally carefully circumscribed with disclaimers. Also, they usually do not limit whatever a party wishes to put before a tribunal by way of closing argument. Ultimately, it is for counsel to make their own forensic decisions as to what they consider to be useful and of assistance.
Applying the law to the facts
The salient points on legal argument and closing submissions have already been discussed above.
If a party wishes to use presentation tools for the purposes of persuasion when making closing arguments, a number of points should always be borne in mind.
- Make sure that there is complete clarity in advance of the appointed day of argument as to whether demonstration tools are to be used, and when they are to be furnished to the other party and the tribunal.
- Under no circumstances can demonstrations present new evidence or case theories. Only matters from the existing record should be used.
- Be particularly careful with PowerPoint slides and how one’s case is expressed; an apparently succinct number of words suitable for a slide presentation may unduly skew a case. If a point is complex, then trying to fit it onto a slide is probably unwise.
- Particularly where PowerPoint slides are concerned, a tribunal’s attention is being split three ways, namely, the hard copy in their hands, the screen and the advocate.
There are differing views as to the benefits of slide presentations in oral closings, even with copies in writing as opposed to using skeleton arguments. Some tribunals find them useful: others do not and prefer something that can be slotted into their files. It is as well to clarify with the tribunal in advance what their preferences are. Finally, differing legal cultures and practices can ascribe different meanings even to the same word (e.g., demonstratives) and it is critical to make sure that everyone is on the same page linguistically, lest there be time lost in needless rows about distinctions without apparent differences. Arguments about picayune points at a late stage in an arbitration have the potential to annoy tribunals, just at the moment when one wants to avoid any annoyance.
A well-argued and persuasively presented closing submission, written or oral, can have a huge impact on the result of a case. It can force tribunals to review anew the evidence and the law, and to reconsider provisional views that they may have formed. It can guide tribunals to critical pieces of the evidentiary record and contrast evidence of witnesses and documents to prove individual points. It can distil tricky legal issues in a compelling and persuasive way. Consequently, it can provide the ultimate reference point to the writing of the award, and its presentation and content is therefore critical. Above all, though, it is the moment for the lead advocate, in particular, to decide what is the best case from the existing record, to make it well and to make it succinctly. This is the apogee of the art of the advocate.
Subscribe here for related content, breaking news and market analysis from Global Arbitration Review.
Covering commercial and investment arbitration, Global Arbitration Review is the unofficial broadcaster for members of the international arbitration community, keeping them feeling up to date and informed.