CYAG event: "dos and don'ts" for arbitration counsel

On 13 September 2013, the China Young Arbitration Group, together with the Chartered Institute of Arbitrators' East Asia Chapter, organised a roundtable discussion on  "What counsel in international arbitration should do and not do - practical tips on how to be a good counsel in international arbitration".

Mr Gary Born, a leading international arbitrator and practitioner who has participated in more than 550 international arbitrations, led the discussion and shared his extensive experience with the participants. In particular, Mr Born offered insights on handling and preparing witnesses, a particular concern for Chinese lawyers, who often deal with Chinese witnesses unfamiliar with the cross-examination process. According to Mr Born, it is natural for a witness to find testifying and being cross-examined a daunting experience.  As such, it is important that counsel prepare the witness well before the hearing by familiarising him or her with the format of, and techniques used in, cross-examination. However, Mr Born noted that counsel should remember that arbitrators generally prefer witnesses to give evidence in a way that is as close as possible to how they would normally speak. Too much preparation risks making a witness appear unnatural.

Mr Born highlighted some of the challenges that counsel face when dealing with witnesses from a range of legal, linguistic and cultural backgrounds. For example, in an arbitration between Eritrea and Yemen (in which Mr Born acted for Eritrea) the "star witness" was a 92 year old blind man. Mr Born also encountered the challenging issue of "double interpretation" in the Eritrea arbitration, where witness evidence had to be translated first into Arabic and then again into English.

Mr Born also offered tips on how to be an effective advocate in international arbitration. He emphasised the need to strike a balance between being realistic and honest, while not being afraid to be bold in making applications to the tribunal. Mr Born recommended that, when making oral submissions in an international arbitration, counsel should not only focus on the logic of their arguments but also try to appeal to the arbitrator's sense of what is right or wrong.

 Mr Born noted that the number of Asia-related international disputes and arbitrations is rising, providing opportunities for young lawyers with an interest in international arbitration to develop their careers, particularly in mainland China.

 This latest CYAG event, kindly hosted by Fangda Partners, provided an invaluable opportunity for young arbitration practitioners in Beijing to learn from, and interact with, a leading arbitration expert.

For information on the next CYAG event, please contact Edwina Kwan, Senior Associate in Herbert Smith Freehills' Beijing office: [email protected].