Remarks by Frank Berman

By Berman, Frank | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Remarks by Frank Berman


Berman, Frank, Proceedings of the Annual Meeting-American Society of International Law


A panoptic "view from the bench" would be presumptuous before an audience containing several serving or past judges of the International Court of Justice. These remarks will therefore focus on arbitration, and will be structured round a series of aphorisms.

THE CASE

Who are you trying to impress? Your client? Your opponent? Posterity? Or could it possibly be the tribunal itself?

THE DOCUMENTS (1)

The arbitrator who actually read all the documents submitted to him--and charged accordingly at the agreed rate--would soon become wealthy enough to retire, perhaps after his first case.

Documentary overload is a real and growing problem. The urge to be complete is understandable and laudable, but it leads to the essential becoming swamped by the peripheral. It is perfectly possible for parties who set themselves to it to agree among themselves and with the tribunal on sensible document management, on the basis that there can always be supplementary requests for further documents.

THE DOCUMENTS (2)

The law firm with the strongest ring binders deserves to win the case.

Documentary overload is a purely physical problem as well, posing unreasonable demands on storage space, accessibility, and portability, not to mention the safe preservation of the papers themselves. Huge benefits flow downstream at the hearing stage, from agreed core bundles and hearing bundles (less so witness examination bundles), but all that demands cooperation between counsel on both sides--which in any case ought to be what the tribunal is entitled to expect.

THE ELECTRONIC DOCUMENTS

The law firm capable of giving titles to each PDF exhibit also deserves to win the case.

Most arbitrators (a) are highly mobile, and (b) have several cases pending at any given time, so most of the work on each case will be done off the electronic version of the papers. It is in everyone's interest to help the arbitrators find their way round the document store, especially when the number of documents runs into the several hundreds.

THE "AGENT"

No form of litigation can easily do without someone who can speak authoritatively for the party itself.

The institution of the agent is critical to the good management of inter-state litigation whether before a standing tribunal or ad hoc. It is not automatically transferable to investor-state arbitration, but that should not stand in the way of creating, case by case, an appropriate substitute for it, and for the same reasons, not least that it fosters the cooperation on which the tribunal ultimately depends. But, in any case, cooperation ought to be regarded as part of the professional obligations of counsel on each side, as it is in many domestic systems.

WITNESS EVIDENCE

Don't be misled by the TV series.

Facts matter: the personal impression made by the key witnesses of fact is often crucial to the outcome. But cross-examination is not an amateur sport (nor, for that matter, is direct examination in chief). Bear in mind the cultural and professional expectations of the members of your tribunal, not to mention the cultural and thoroughly non-professional expectations of your witness. Cross-examination through interpretation into and out of a foreign language is murder; cross-examination through interpretation into and out of a foreign language by video or audio link is sheer murder.

Expert evidence is a different matter altogether, and deserves a book on its own.

POST-HEARING BRIEFS

It's a "brief," so make it one.

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