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Like Swiss Clockwork

Like Swiss Clockwork

Two weeks ago I wrote a blog about the planning and preparation for an 8 day ICC evidential hearing in Geneva.
We are back. “So how did it go?”

Well, as far as we can tell it all went very well. Why do I say that?

Firstly, because I am confident that our planning and preparation paid off. The key to successful advocacy at any hearing is a strong case analysis, such that you have a very clear understanding of the factual and legal issues of the client’s case, and also of course the other side’s case. Without this you cannot focus on the relevant evidence and put forward a convincing position to make it as easy as possible for the Tribunal to render an award in your client’s favour. All this ‘homework’ definitely shone through in the evidence given supporting the client’s case and the testing of the other side’s evidence.

Secondly all the ‘domestic arrangements’ which we played our part in organising went like Swiss clockwork! The papers and printer arrived; the translators and transcriptors turned up and performed very professionally. Our witnesses, factual and expert, arrived and left on time, and each gave credible evidence consistent with their prior witness statement/ expert report, which was taken as prior evidence-in- chief. Each witness handled the cross- examination by the claimant’s team and the questioning of the three arbitral Tribunal members in a straightforward and confident manner. In other words the presentation of the client’s case met our client’s and our expectations. Thankfully there were no nasty surprises!

Thirdly, it was evident that the three Tribunal members were each very well prepared. They were clearly focussed in a desire to better understand the respective parties’ cases, and keen to demonstrate a rigorous and intelligent testing of the cases, using various hypotheses, so as not to  pre-judge either case at this stage. Also they were certainly not work shy, with a number of days proceedings not ending until after 7.30pm. So as predicted in my previous blog it was a full-on experience, with our only free time being to eat (and I would have to admit Geneva did not serve up a bad meal!) and then it was time to prepare for the next day. (We did however manage one day off and took the train up the lake to Montreux and into the mountains.)

But the advocacy (in the wider sense of that word) of the client’s case is not finished, because written closing submissions now fall to be delivered in February. The task now is to read and check the 8 daily transcripts running to over a thousand pages. Then it is a matter of drafting the final submissions, demonstrating that the evidence, which has been presented in previous submissions and in the oral testimony at the hearing, is sufficient to prove the client’s case. At that stage we will finally be in the Tribunal’s hands. We won’t know whether the case is won until late spring.

Chris Mackay

Richard Farndale