A rainy morning on Saturday 25 February 2017 signalled the start of ACICA’s Advocacy in International Arbitration Workshop Series. The Workshop Series, launched in 2017, is designed to provide an intensive introduction to the provision of effective advocacy in international arbitration. The workshops are led by Course Director and ACICA Fellow, Greg Laughton SC. Participants also have the opportunity to hear from high profile guest speakers throughout the series, including Justin D’Agostino (Herbert Smith Freehills, Hong Kong), Kim Rooney (Gilt Chambers, Hong Kong), Max Bonnell (King & Wood Mallesons, Sydney)and Dr Sam Luttrell (Clifford Chance, Perth), who speak to their practical experiences as international arbitration advocates and arbitrators.
The first of the four workshops saw participants led through a crash course in communication and culture clashes, arbitration style.
Titled Communication Skills & the Psychology of Persuasion, the workshop treated participants to an exploration of the influence of culture on communication styles, with a particular focus on the Asia-Pacific region, and how the differences in styles between the East and the West can create problems for practitioners.
Greg was assisted on the day by guest speaker Justin D’Agostino. Apart from bringing his wealth of experience acting as counsel before tribunals all over the world and as an international arbitrator, Justin is a Scotsman operating predominantly out of Asia as the global head of Herbert Smith Freehills’ dispute resolution practice, so was well-placed to draw on his first-hand experience in the nuances of cross-cultural communication.
Participants in the workshop ranged from experienced senior barristers to junior litigators with varying degrees of experience in advocacy and international arbitration. The ‘open forum’ style of the workshop created an environment where participants were encouraged to engage in a frank and open discussion to exchange experiences and ideas.
To be an effective advocate in international disputes an advocate needs to be cognisant of differences in cultures and how these differences can result in mis-communication between solicitor and client, opposing parties, the advocate and the tribunal. It is only through this awareness that an advocate can remain persuasive in any context and arbitral environment. Some may assume only junior advocates fall prey to ignoring cultural differences. Not so, as participants were told of an observed attempt, by a British senior counsel, in opening submissions, to sway a tribunal made up of Chinese and European arbitrators as if it were the UK Supreme Court (complete with the use of cricket analogies). Never has the phrase ‘lost in translation’ seemed more apt.
The workshop concluded with each participant giving an oral summary of a hypothetical cross border dispute, which highlighted the course emphasis on “learning by doing”. Participants were able to receive constructive feedback from Greg and each other. Participants were also provided with a video link of oral submission after the workshop (for those brave enough to watch themselves and self-critique).
The second workshop will take place on 18 March 2017 at the Australian Disputes Centre with focus on Case Preparation & Written Advocacy. Greg will be joined by Hong Kong-based barrister and arbitrator Kim Rooney.
Author: John Oddy, Marque Lawyers (workshop participant)