[Music] hello and Welcome to our live audience and to all those who may be viewing this uh recording at a later date Welcome to our 12th session from our Education and Training series for the 31st Vis International commercial arbitration moot competition brought to you by African the Moot and with support of our media media sponsor the arbitration Channel African the moot is a volunteer-based nonprofit dedicated to increasing the representation of African teams competing in the VIS mood and in their in-person attendance in Vienna and Hong Kong I am Mark Anthony Bano the chair of African the mot's Education and Training committee I'm an associate attorney at siden law based in New York for all of those of you who are viewing this live please do write your questions in the chat if we have time there will be a live Q&A portion towards the end of the session where our steam speaker will be able to respond to your questions live without further delay I'm very excited to introduce all of you to our profess uh to our speaker Professor Dana McGrath she is a leading independent arbitrator with over two decades of experience in international arbitration disputes she's on the roster of several arbitration institutes uh where she has served in a variety of roles as arbitrator in numerous arbitrations in support of the general goal of continuing to develop and diversify the international arbitration practice among others Professor McGrath is on the AAA icdr Council and co-chair of its large and complex case committee was co-chair of the CPR institute's rules revision committee on various task forces of the ICC Commission on arbitration was the chair of the New York City Bar association's arbitration committee she is the immediate past president of arbitral women and is on the steering committee for equal representation in arbitration pledge and the co-chair of the USA subcommittee Prof Professor McGrath has been recognized as a leader in international arbitration in ious directories and is a fellow of the in fellow of the chartered Institute of arbitrators she serves an Adjunct professor at Forum law where she teaches International arbitration and previously taught as an Adjunct professor at Brooklyn law school here's Professor McGrath to present on the dues and don'ts of oral advocacy at the vismo competition hello uh good morning good afternoon good evening depending on what part of the world you are in now um I have among other things uh coached Vis teams uh over the past decade or longer and have served as arbitrator at the vismut in Vienna many years so it's that context um that allows me hopefully to share some useful comments and advice on the does and dos for oral advocacy at the bismo in both Hong Kong and Vienna uh as you will hear from people in the field oral advocacy is a subjective topic so style and approach vary depending on uh the the advocate so my suggestions and advice to you are are in my personal capacity I obviously don't speak for the vmot and or any of their arbitrators that said I've observed many many many vmot arguments and so hopefully uh I can share what I've dis SE discerned learned from that um I put some slides together and I'm going to share my screen now and hopefully you can see them now okay so dos and don'ts on Vis or vismo oral advocacy so uh the reason I went with an Olympic theme is because the vmot is often called the Olympics of arbit ation advocacy and um in the context of the Olympics I chose figure skating and I have actually used the figure skating metaphor in my teaching over the years because it has sort of a doveet tales in some ways to some of the required elements and um and additional elements you might want to bring to your advocacy at the vismut so um bear with me with the metaphor with respect to figure skating um I myself am not a skater let alone an Olympic skater it's uh it's just a metaphor that hopefully breaks it down more tangibly so moving on to the road map which you all probably are familiar with that term by now um we're going to cover six topics today um what I'll call the short skate Elements which are you know arguably required elements for a smooth oral advocacy presentation at the V uh the long skate Elements which are additional elements that I don't want to say are required but are are certainly uh important to doing well at the VIS teamwork which is a critical aspect of the VIS going for the gold which are some aspects uh that really take you deeper into the areas that the VIS explores in international arbitration and international sales avoiding a fall some some mistakes or areas or or things to avoid to maximize your performance and finally a few words on rebuttal which typically is afforded to both speakers um regardless of who speaks first or second so moving to the uh short skate elements so to speak on the left is sort of the structural short skate elements and on the right I'm going to talk a bit about substance and style um on the left I'm going to really stay close to the slides on a lot of what I say today I'm going to depart from the slides and augment so so we're not reading the slides so to speak um and that goes to one of my points is that you should not be reading when you are at the vmot at all you should make eye contact with the tribunal so I'm going to try to uh to Echo that here but with respect to the structure of your vmot argument you really should strive to hit all of the road signs and book ends that I've mentioned on the left of this slide so that's the introduction where you introduce yourself and your colleague and you offer a road map or outline of your structure of the argument that you will be presenting then you give a road sign turning to my first issue when you're finished discussing the first issue you should do a mini conclusion you should then do a road sign for the second issue turning to the second issue and then after you've discussed that you do a mini conclusion on the second issue and then you do a conclusion on both issues that you have presented uh and that's the structure that almost every vmot argument will have and you want to allow in your time to hit all of those arguably required elements so no matter where you are at the end of your 14 minutes you want to try to say to conclude and get your conclusion in because the arbitrators who are judging you are looking for some of these you know structural elements in your argument um briefly turning to the substance and style which is going to vary depending on the issue you are addressing um you want to cite key law for each issue one of the things the arbitrators judging you will be looking for is whether you cite law how you site law how you use the law how you explain its relevance to the issue at hand so that's something that you definitely need to build into your argument you additionally need to site facts from the record and use them in your argument effectively um we'll talk a little bit more about that later but some of the key facts are going to be coming from the exhibits much more so than the pleadings the pleadings are there um because they're part of the record but you would not want to rely on your own clients pleading when you're arguing your case you would much prefer to rely on contemporaneous evidence which is in the form of exhibits in the problem before you procedural order number two has come out now and I'm sure you mind it for the many many many new facts that have been shared in procedural order number two so you want to use that um to the fullest uh to the extent that the other side has cited facts um and or cited a document in the record that has content that's actually beneficial for your client in your case uh you want to try to take note of that and use that document when it's your turn to speak or on rebuttal and to the extent that there's publicly available information on the topic of your your issue uh you can use that in a limited fashion uh you know the record is not closed to uh the problem you are sort of charged with some basic knowledge of the industry at issue in the VIS but not an expansive or detailed knowledge of it so just be aware that you you know you could add some industry knowledge um but uh in doing so uh the problem and the facts before you come first uh and as we'll discuss later you want to stick to the facts and not inadvertently uh misstate the facts or the law uh in your vmot argument this just illustrates how important it is to have structure to your presentation and to try to have the mini conclusions uh if possible within your 14 minutes the second mini conclusion on this slide is in red because that's about when your time's running out and if you need to skip that of any of these elements that's the one to skip um because you need to give a shining conclusion no matter how smooth or UNS smooth your argument has gone so you definitely want to have time for your full conclusion on the both issues that you will be addressing so some of the long skate elements so these are some additional aspects of your argument that I think uh would really you know enrich your presentation first is uh you and your colleague who will be arguing should settle on a theme um sometimes teams have different oralists AR arguing in different arguments and actually use different themes that's beyond the scope of what I'm going to discuss I just want to take this to a team of two and the two who will be arguing together at any specific round should have a theme and it should be the same theme that syncs up to the case and covers both the procedural issues and the substantive issues so what you don't want to do has is have two different and disconnected themes in your argument it's better to have one theme that works for both the procedural arguments you're making and the substantive arguments um so you'll Echo those themes throughout your argument to the extent that you can not just throw out a theme at the introduction and then never say it again it's best to Echo it bring it back um that's just a natural aspect of advocacy that's that's usually persuasive um you want to identify of the authorities that you have cited what are the most important legal authorities so that it's not left to the tribunal to discern well what's really the key Authority on that issue they mentioned three or four cases which is the key one you help them by identifying the key one you're there to help the tribunal similarly you want to identify the key facts that really show why you're side winds in real arbitrations I've seen Advocates say you know this case really turns on three exhibits in the bundle even though you have 200 exhibits before you uh in the VIS it's good to identify what are the key exhibits or facts in the record that really show why your side wins commercial reasonableness is an underlying theme of the VIS every Vis problem and this year's no doubt so what you want to do is when you are presenting your argument you want to make sure that you are presenting it in a way that sounds commercial commercially reasonable because commercial reasonableness is a big aspect of international commercial arbitration and finally you want to say why the result that you invite the tribunal to reach is going to yield an award that will be enforcable in the 180 countries around the world that are signatories to the New York convention they should have no concerns that the relief that you seek will not be confirmed by a court so that's content wise you know how I think it's best to package your arguments in terms of advocacy style uh first and most important is eye contact with the tribunal and not relying on notes and that is harder than it sounds particularly in the beginning even though all of you will know your arguments inside and out by the time you go to competition it is natural for Advocates to feel nervous because it is you know game show time and they have a piece of paper in front of them and it is almost human nature to look down at it and try not to specifically try not to when you are introducing yourself you know your name you know you're representing the claimant or the respondent you do not need to look down at your papers and it is natural to do so at the beginning of a presentation but I urge you not to turn that sheet over when you are introducing yourself because you do not need your notes to introduce yourself to the tribunal and you should make eye contact with each of them not just the chair or the presiding arbitrator under the ICC rules but all three arbitrators you should also speak slowly and clearly and that is because not only is that more effective advocacy but many of the arbitrators will not be native English speakers and you will be presenting in English so the slower you speak or the more often you give a pause in your phrasing you allow someone whose first language is not English to process what you were saying if you speak very quickly and don't have any pauses you may lose the attention of an arbitrator because you're just going so fast they can't keep up and they're trying to follow your argument but it's just going so so so fast and like you don't want that pauses are actually okay they do not signal that you don't have command of your arguments they actually suggest that you do in terms of directing or inviting the tribunal to look at the record um it's very important that as part of your argument you take the tribunal to the key exhibits in the record that you think prove that your client should win and you do that very specifically by saying something like this not the words exactly but something like you know I invite the tribunal to turn to page 15 of the record give them time to get to the record here we see what has been marked as exhibit C1 I'm making this up this is the witness statement of Miss so and so she is the CEO of my client name your client and and in the third paragraph of her witness statement she states and I quote so you use the exhibit in a way that the tribunal understands what this document is you identify it by its exhibit number or reference its page number in the record who if it's a witness statement or a comment by somebody who is that somebody if it's the CE o of your client that's important or if it's the CEO of the other side's client that's important so why should the tribunal care what this person is saying well they're the CEO of one of the parties before them so you want to show why the evidence to which you're directing the tribunal is relevant in material to the outcome of the case and by doing that is part of it is telling them what this exhibit is answering questions of the tribunal you must answer the questions the tribunal poses no matter if you've heard them 50 times or if you think the question sounds somewhat uninformed so answering the questions of the tribunal is something on which you will be graded and you really need to do it no matter what the question is and if the question is a yes no question you should answer with yes or no and then you can explain but if it's a yes no question don't avoid answering yes or no because that will be noticed as somewhat non-responsive even if the explanatory response you give is responsive and conveys yes or no if the tribunal asks a yes or no question say yes and that is because or no and that is because and explain your answer finally no matter which aspect of your argument you are presenting the weaker side or the stronger side always try to speak with confidence and enthusiasm never let it show that this is your weaker argument try to show that every point that you were making you are absolutely convinced of and you believe the tribunal should rule in your favor even if you are making alternative arguments that should not be presented as a sign of weakness with respect to one of the arguments you have a number of reasons why you should win even if the tribunal does not agree with us on this this issue you know alternatively our client should also win for the following reasons you have multiple alternative arguments because you have multiple reasons to win not because the first or second argument is weak teamwork is something that is valued highly at the V and actually in real life which is why I think the VIS puts so much weight on it this is something that is newer to teams post pandemic because we did spend several years of this advocacy on the screen and now we are back live in person so it's important to learn how to work effectively with your partner so there's a Subs aspect to that and there's a style aspect to that the subs of aspects are largely on the slides here but I want to highlight a few of them it is really important not only to know your argument but to know your partner's argument and Trust Me by the time you go to competition you will know your partner's argument because you will have heard it and practice sessions so many times but listen to it during those practice sessions don't tune out listen to it so that when you get to competition you genuinely know your partner's argument their key exhibits their key legal authorities you can help them by turning to the page you know what they're going to site you know when the other side cites something that your partner is going to come back with a a rebuttal that's going to probably be you know using an authority that you're also familiar with knowing your partners argument is really really helpful on top of your own while you are not speaking and your partner is speaking you want to take notes of what the tribunal is asking of your partner or the your opposing Council on the issue that you are not arguing but your colleague is arguing taking notes of what the tribunal is interested in is really important because you want to ultimately come back back and focus on areas of interest of the tribunal now not every question by an arbitrator means that that is a central dispositive issue for the case you have to you know calibrate and use some judgment but you should take notes on what is being asked and when some of the questions you know go to the heart of the case whether it's the weaknesses of the case or the strengths you really want to focus on those questions so that you can come back and say the tribunal asked about X you know that that's important and and you can address it but if you don't take notes in real time when it's being mentioned you may not remember that that's a key point to come back to and arbitrators notice and like when Council return to issues they've asked about because it affirms that Council are listening to the arbitrators that Council are there to help the arbitrators reach the right result and it's a it's a example of good advocacy that you're listening to the tribunal and that's something that you can work together as a team so while one partner is speaking the other partner is taking notes of what the tribunal asks or when the other side's speaking taking notes because ultimately you're going to want to confer briefly on potential rebuttal points and one of the ways you can do that effectively is by having taken note of what the tribunal has asked about both of your side and also the opposing Council side in terms of style when you are not the oralist when your colleague is speaking you are still on camera so to speak you were there you are in the room you are being observed by the tribunal so don't tune out or I don't know act like you're not focused on the argument don't look around the room don't you know you need to actually be watching the tribunal closely watching opposing Council taking notes just like you would at a real hearing you are as engaged as your colleague you're just not the person who's speaking you will be assisting your partner by turning to exhibits when your colleague is going to you know cite something from the record um you should look at the tribunal but don't stare at them in a sort of you know over invasive way that that could make them uncomfortable but you want to show the tribunal that you're paying attention and in that respect you look at the tribunal you look at opposing Council you take notes you act engaged with respect to your professionalism you do not want to use any any kind of body language that signals like yes or no regarding the content of what's being said so for example if your colleague is speaking you don't want to be nodding like she's right or he's right and when the opposing side speaking you don't want to be making any kind of facial expressions that suggests like that's ridiculous or you have a game face on always it is not professional to be making Expressions about what the other side's saying or what your your colleague is saying you really have a neutral expression other all you want to be is alert attentive engaged you don't want to look like you have an opinion about what's being said keep time for your partner this is very important many people use you know small size cards that say five minutes remaining two minutes remaining sometimes they even give them colors you know the two minutes might be orange the one minute might be a red card they should be neat they should be small um because most of what you will have in front of you the tribunal will see it's a small you that you will be arguing and so your materials need to be neat and they need to be what you would be happy the tribunal sees so your note cards in terms of keeping time should be neat your binder that you share should be neat everything should be very very orderly and professional and not distracting finally in terms of teamwork if your partner seems to be stumbling and that could be not the fault of your partner but it could be from the questions that are being posed that are just you know you know not readily understood by your side for you know different cultures ask different questions you know it happens that you know you get into a situation where you're stumbling your partner can silently assist by turning to a page in the record or pointing to something and then helping you sort of get out of that you need to Pivot out of if you get stuck in a morass of a question that seems to never end and they keep asking it in a different way you need to Pivot and move out of that sometimes your colleague can help you by turning to a page or passing a Post-It so those are ways that you can show effective teamwork and you are graded on your effective teamwork so you want to you want to do that as much as possible so going for the gold um these are things that may actually already be front of mind and uh you know but I want to just emphasize a few of them that uh first of all a thorough understanding of the law and the context so it's not just enough to know the specific provisions of the rules or the statute or the conventions at issue it's really important to understand the overall context of those conventions treaties rules statutes and to show that so and to show the underpinnings of international commercial arbitration you know that arbitration is you know first and foremost you know turns on the consent of the parties to arbitrate you know what what is the role of the inol model law and the New York convention in international arbitration generally you need to know how all of these pieces fit together where do the unid principles fit into the picture where do the ICC rules fit into the picture what's the hierarchy of the law you really need to understand you know the big picture and then zoom in for the tribunal on what they need to focus on to understand the issues and decide the case you know in your client's favor so understanding the law is really key and showing that you understand it is really key so look for an opportunity to to show that you understand not just article 52b of the New York convention but you understand what the New York convention's goals are and how many Ator countries there are and and just show your your deeper knowledge of it um similarly knowing the case facts inside and out is critical to excelling in the V at some point towards you know game time uh competition time you should be reading that record twice a day you need to know everything in that record inside and out now not every page is is filled with you know important information but you know the pages that are and you need to look at those every time you read the record you're going to see something new whether it's good for your side or good for your adversary So reading the record over and over and over and knowing those facts and knowing what page it's on and knowing what paragraph and the witness statement it is that is really really valuable and it will make your argument go far more smoothly you won't need notes to find what you're looking for because you will know that record so well you will it'll be all in your memory so much so that you don't want to actually look like you have it all memorized so you have to you know even if you've answered the same question 40 times you know we you answer it as if you're being posed it for the first time and you take it slowly and you go to the exhibit or the part of the record that's relevant and you show the tribunal here's the answer to the question that you've asked to the extent that you can show what your adversary has argued or relied on in the evidentiary record can actually support your case that's very helpful and it's very helpful to make it clear to the tribunal that that's what you're doing so you can say claimant relied on exhibit two for the proposition that whatever it is you know let's turn to claimants Exhibit 2 if we and then look at the language and claimants Exhibit 2 that actually is favorable to your client and I bet if you look at every exhibit in the record there's something in every exhibit that's helpful for both the respondent and the claimant it's just a matter of reviewing it it closely enough to find it so you want to show how the evidence and law that was cited by your opponent actually can be used to support your client's case I mentioned earlier how important it is to pick up on the points the tribunal asks about and write them down you don't have to get it verbatim but you need to take note of what the tribunal seems to be really interested in because it's probably dispositive of the case if you've got a good Tri funeral you want to focus on the facts and the law that are relevant to the outcome of the case not ancillary facts but the central facts and the tribunal should be focused on the ones that really are you know dispositive of the case we talked about answering yes and no questions with a yes or no that sounds easy it is not easy especially if you are bombarded with multiple questions at the same time that shouldn't happen but it does happen so one arbitrator will ask you a question and another arbitrator May chime in immediately thereafter yes I I was wondering about that issue too can you also tell us such and such and maybe even the third says and could you tell us such and such that's a situation where you're going to have to take each question in turn first to Mr arbitrator question about such and such answer that second answer the second question third answer the third question or if all of the questions go to something you know you can say you know each of these questions relates to such and such and exhibit C5 is Central to that issue so let's turn to C5 and answer the questions using C5 but you must answer all of the questions if any arbitrator asks a question even if it's a compound piloton situation and they've asked the question last and you don't answer their question that could affect how they grade you so it may not be easy or fair but if you get a series of questions you need to try to answer them all and that is kind of connected to the point of don't let the tribunal hijack your oral argument sometimes you'll get an arbitrator who will start asking a question and they will provide a very fome context as to why they're asking that question and they're taking up a lot of time and that's your time the clock is running on you not on them so you really want to try to avoid if you have a very verbose tribunal allowing them to talk for as long as they want to talk but you have to be respectful and not interrupt interrupt them so you need to figure out a strategy assessing the situation at the time on how to uh how to do that so you want to answer the question and then perhaps move immediately that takes me to my next point and start your next issue or find a way to Pivot away from that arbitrator coming back with yet another question on that same issue because you have more to cover and they will be looking to see can you pivot out of this situ ation the tribunal may try to box you in but you're the advocate you should have control you need to try to take back control so you've got to Pivot to another issue and you've got to assert yourself you cannot wait for the tribunal to Signal somehow that they are satiated that they've heard enough on issue one now you can go to issue two that's for you to do you need to manage your time you need to get to your second issue you need to get as much time needed on that second issue and then have your conclusion without it seeming rushed so that that's part of the challenge and each tribunal is different finally um teamwork means acting like a team all the time that's from when you enter the room when you meet the arbitrators you shake their hands hand your business card um at the end you know when there's feedback I suggest listening and being gracious and thankful and not engaging in conversation when there's feedback in the general rounds and then you shake their hands again at the end and uh and you leave and you maintain your professionalism even when you leave the hearing room the arbitrators have not turned in their score sheets yet you are always in role as a professional when you were doing Vis arguments when you're entering the room when you're in the hearing room when you leave the hearing room when you're in the elevator of the building where the hearing took place there could be arbitrators in the elevator maybe it's not the arbitrator that you just argued before but you may argue before that arbitrator two days later you maintain your professionalism throughout the MAA will arrange social events and that's when you can let your real personality out but when you are arguing for the V you maintain your professionalism a few points on how to Evol avoid a fall or stumbling start with your strongest argument try to make it as simplistic and clear as possible give your strongest points the most amount of your time this is one of the most difficult things to do because the Tribunal is going to focus on the areas that you are weak on they're troubled by the fact that the record says this or the law says that and you need to assade them that you know there's nothing to be concerned about they should rule in your favor that can lead to spending more time on your areas of weakness than strength and you need to try to spend most of your time on your areas of strength while taking their questions about the areas where you're weak and answering them and being at times candid if you need to concede something don't concede your entire argument but if there is a document or there's an aspect of the record that's not favorable to you don't misstate it don't don't gloss over it you you acknowledge it you know there's there are some aspects of the record that are not good for your client but on balance the record supports your case that's really your position and you don't ever want want to misstate the record or misstate the law misstating the record can L can lend itself to you know a very uh biting rebuttal so you do not want to overstate the record many of the arbitrators you will be before have been coaches or maybe are coaches this year they may know this record inside and out as well as you do so they will know when you overstate the record so don't do it we talked about not reading from notes it's okay to have one sheet in front of you that's basically your outline you know your required elements and to even tick off if you've uh completed one of those because that shows that you're on track and you're doing what you plan to do you're keeping control of your argument don't use colloquial Expressions this goes especially to native English speakers who tend to fall into colloquial Expressions more more than than others they are not understood universally and even if they were they are not professional in this context so avoid them also as we talked about avoid speaking too quickly when you're citing cases and authorities make sure you know what those cases and authorities are if it's a case what court is that the highest court has this case ever been overruled or negatively commented on by a a later case do you know the facts of the case did this case go up on appeal if it's not the highest court you should understand what the authority is you are relying on not just what it says but where it fits into the legal system from which it draws so if this is you know of the Supreme Court of the United States of America we know that's the highest court but there are multitude of Courts underneath it so a a state court decision from one of the 50 states may be similar factually but it may not really be as you know persuasive as um a higher court so you want to know where the legal Authority fits into the system from which it derives and and know that honestly most law out there is not binding but is persuasive the record will tell you what law if any is binding certain of the treaties to which all of the countries and the parties um are bound that's binding but a lot of the authority that you will be citing will be persuasive and you need to show the tribunal why and you need to be able to recognize the distinction between binding Authority and persuasive Authority if you are posed a question when your time is running out answer the question briefly and then ask for more time one more minute or 30 seconds if you need it but do not answer a question with I see my time has run may I please answer the question you don't ever ask for permission to answer a question from the tribunal you answer the question succinctly and then you note I see my time is run may I have an additional 30 minutes to conclude 30 seconds to conclude 30 minutes would be a that would be a serious fall uh so you want to answer the question and then ask for the additional time that you need and hopefully it's not too much often if a tribunal is asking you a lot of of questions they'll be a bit more lenient in giving you time so if you say I see my time is run may I have 30 seconds to finish this point and to conclude they may say you can have another two minutes we gave two minutes to the opposing side so but you can't Bank on that but you may be given more time than you ask for you don't have to use it all but you can um and I think that that's so when the tribunal acknowledges that they've asked a lot of question questions and taking up some of your time you know that's totally acceptable for you to use the two minutes that they've given you that said do not exceed your time unless you have permission from the tribunal except if there's a question pending answer really quickly but not speaking quickly just succinctly and uh then ask for additional time rebuttal is something that is different in every country in every Court in every jurisdiction around the world I'm going to give you some ideas on rebuttal you may hear different views on rebuttal from other people uh but I think that uh it's it's worth spending time thinking about rebuttal once you are getting ready to go to competition first of all rebuttal needs to be short and succinct Punchy and effective it needs to be relevant material to the outcome of the case there is no benefit to saying on rebuttal opposing Council cited page 23 of the record and said such and such that's actually incorrect if we look at page 23 it says such and such but that has really not much to do with the key issues in the case so why did you use your rebuttal just showing that the other side made a mistake that's not the way to use rebuttal the way to use rebuttal is to rebut the key points the other side made by using either something in the record or using the law and doing it really succinctly before you give your rebuttal you should confer very briefly quietly with your colleague on rebuttal topics one thing that both of you should be doing is sort of creating a list as the argument unfolds on possible rebuttal topics and then you'll probably have maybe three to five things that you've noted down and you confer and you choose one or two and you go with those two that's another opportunity to show teamwork and it also allows you time to think about what points are really relevant and material to bring out on rebuttal rebuttal is not just your time rebuttal is also time that the tribunal can ask you questions so it's important to be prepared for questions if the tribunal asks them they don't always ask questions during rebuttal but often when rebuttal goes to a central issue in the case that might be a time that one of the arbitrators asks you a question it may be an arbitrator that's not asked any questions throughout the entire argument they surface now and ask that question during rebuttal answer the question that's something that I think you can have a bit more flexibility in terms of your time if you are asked a question on rebuttal you need to answer it and you should expect it if you're the second speaker on rebuttal doing a sir rebuttal it is really important that you only respond to what was said by your adversary on rebuttal you don't talk about some other topic that you prefer to talk about you don't recap your case you don't talk about anything other than why their rebuttal fails so on rebuttal they said this respectfully we disagree if we look at such and such in the record we can see that and show them why the rebuttal that you they just heard from your opposing council is actually not a winning Point your cuttle demonstrates the winning point it's it's very hard I don't mean to minimize it uh but that is really what is um makes for a really good cuttle so I mean that in short is uh that's those are my key points I'm happy to answer questions um remember no matter how it's going to show confidence and enthusiasm often feedback at prems and even at the competition from arbitrators is that you know you don't look like you're enjoying this Council I'm not quite sure that anyone quote enjoys competition but you need need to smile on occasion you need to act confident you need to somehow convey that this is something that you're passionate about and not that you're waiting for this 20 minutes to run and get to leave the room you are there because you want to be there you want to show the tribunal why your client wins you are super convinced of your client's arguments and you are really grateful for the opportunity finally to be before this tribunal and tell them what you have to say so that's really important and that kind of means you have to show enthusiasm and kind of it seemed like you're loving this you're enjoying yourself don't joke but try to show that this is really something that you've been waiting for a long time and you are really here to win it with that I would be happy to take questions thank you so much Professor McGrath um while we wait for some questions to come in potentially through our uh live viewers I do have a few questions myself for you um so I'll bucket them into um first sort of preparing for oral arguments and so I think something that's very exciting and intriguing about International arbitration as a whole is catering arguments to a very diverse audience um and the most common one is the common law Civ civil law practitioner divide so what are some ways you would recommend to our students to prepare to present to either a common law practitioner or a civil law practitioner if they are from um either a common law or civil law um jurisdiction themselves and are perhaps unfamiliar with the formalities uh that may um come into play sure well one one thing that sort of is connected to that is you will have the opportunity minutes or hours before your argument to find out who your arbitrators will be for any given round now typically the the vmot organizers release the schedule and the schedule's available and you can see who your arbitrators are going to be and you can look them up and see if they're civil law trained or common law trained what you know what their background is and that can be very helpful now you should also know that for a multitude of reasons you may end up with three different arbitrators than what the list said someone you know gets switched for a conflict or who knows so yes you should pull the bios of the people who on the the list that are supposedly going to be your arbitrators but you should be prepared for any arbitrator um that said let's assume that the list doesn't get changed for conflicts or other reasons and you know that you have some common law trained uh arbitrators some civil law trained arbitrators and you can tell that one of them has coaching experience or is a current coach that's all relevant to you in terms of understanding who your audience is so a current coach probably knows the record inside and out and may be quite active in posing questions a civil law trained attorney and this is by no means Universal you know there there's been a lot of cross-pollination and you know the the practice of international arbitration is no longer so easily delineated civil law versus common law versus you know it's a mix but let's say you know the civil law trained arbitrator poses very few questions and holds them maybe to the end of your your remarks uh that that is not uncommon and that does not mean that the civil law arbitrator is not fully engaged in listening to you they just may be posing their questions towards the end so you should anticipate questions at the end even after you say to conclude and you give your inclusion you are not done until the tribunal says you are done and what typically happens at the end is that the the chair or the presiding arbitrator will turn to their co- arbitrators and ask if either of them have any other questions before moving on to the next oral list and those questions may come at that time another aspect of you know different legal systems is that you know some legal systems will put far more weight on contemporaneous documentary evidence that proves something in the case as opposed to what a witness statement prepared months years after the events at issue uh say and was probably prepared with the assistance of councel if not by counsel so you might want to be cautious about how heavily you rely on a witness statement and you may want to rely more on contemporaneous documents that were emails that were sent at the time you know or the documents that are more you know contemporaneous to the issues in dispute that said witness statements are the norm in international arbitration it's not that you shouldn't use and rely on witness statements but you should do it cautiously um I would say that in common common jurisdictions witness testimony is is arguably given more um more credibility than it may be in other systems um not to say that in other systems there's a presumption that every witness lies but there's um there's skepticism about these witness statements that are prepared four or five years after the fact um that seem to you know perfectly tell the story uh you know it's just a matter of Who's Who background really so you should assume that the documentary evidence that's contemporaneous to the events is the best evidence and the witness statements explain that evidence okay now I guess sort of on to another point which was quite was a theme throughout your presentation today was timing obviously timing is incredibly important staying within the time constraints provided is very important so in your eyes what are the best ways for students holistically to prepare for argument to be within the time constraints that they are provided what are some of the exercises that I guess you have your team do or that you recommend students do so I think it's helpful to have practices pleading practices that have different kinds of arbitrator Styles so that you can get comfortable with different kinds of pleadings so you may have some practices that uh essentially are before a cold bench and you get no questions at all and you have to fill your 14 minutes but you're really only planned for 11 because you anticipated a number of questions but you should have something to say for all 14 minutes in the case of Silence from the tribunal if you are are getting a lot of questions and you see that you know your time management is slipping um you need to figure out a way to Pivot um and you you can do that that by saying there are certain phrases that they must be natural to you but a phrase that's natural to you that basically communicates that you are now ready to move to the next issue and you do that assertively that takes me to my next point or you you know your question essentially the tribunal's question takes you to your next Point as opposed to keeping you stuck on the point that you were on before so it's it's difficult if you get a very aggressive tribunal that's throwing a lot of questions at you um but you get very high marks for answering questions fully and responsively so questions are not your enemy questions can be your friend often the tribunal asks a question because they are inviting you to give them the evidence that they need and they know you have and you've just not delivered it yet so questions can be your friend but you don't want them to interrupt your time management your colleague can also help with this so when they are showing you you know the yellow card and the orange card and the red card showing that your time is running you know that that is approp apprpriate body language to you know very subtly put the card but it's bright red and you can say I see that my time is running um would the tribunal permit me to you know move on to X or you try to use the time cards and your partner sort of you know acknowledgement that the time is running and and noting that as as a way to Pivot to to get to where you need to and cover everything you need in your 14 minutes great so I think on that note actually we have a question from uh someone from the audience who's watching live so Michael asks um are you allowed to refer an to an arbitrator's question that was directed towards you to your co-counsel if you believe they are better placed to answer the question that is a difficult situation um typically if an arbitrator asks a question that is really relevant to what your colleague will be addressing you should in a perfect world have an answer to that question that is very short and succinct and immediately follow it by my colleague will be addressing that issue in further detail when she addresses the substantive issues or vice versa but I don't think that it's a it's not recommended by me to to not answer the question because it's not really a question that's fair to be put to you sometimes arbitrators honestly don't appreciate that the question they're putting to you is really best put to your colleague they're asking the question because they want the answer and you will know your colleague's case we talked about that at the beginning so you will be in a position to give an answer even if it's a very superficial answer you can answer it very briefly and then say your colleague will you know expand on those issues when she addresses the substantive issues of the case yeah that's uh the the substance procedure divide seems to be the common place where I've seen that uh circumstance arise but Michael's question actually brings me to a question that I had which I think every participant is always reading is what happens when a question's posed to you you ask a clarifying question and you still don't have an answer what do you recommend is the best course of action in that so to speak dreaded situation so not knowing what the question is um if it's a question that you've asked you don't understand the question you've asked for clarification now your best understanding of the question is something that you are not in a position to answer and that's really where you come out there's no way you're going to come up with something that you can say that's responsive yes then you may have to say respectfully members of the tribunal we will um we will we will submit something on that in writing you know after today's hearing we need time to confer on that it's it's actually very appropriate like you know we need to confer with our client on that and um respectfully we'll we'll confer with our client and and submit something after today's hearing if that's acceptable that's what would happen in real life and that's probably uh you know one way to do it yeah yeah um and I think the last question that I have um really talks more is touching more on each person's style or individuality and so obviously there's forms and there's structures that I think are good rules for everyone to abide by but everyone has their own unique delivery their own unique style that they bring to the table and I think that's part of the fun and that's figuring out your voice as an advocate so how do you recommend the students maintain the structure that you sort of highlighted but also be true to themselves and be true to their own individuality I think that it's very possible to be your genuine self as an advocate in the structure that we've described I mean just because the structure seems to be very formulaic and in that respect kind of you know uh tight and pre pre- orchestrated your personal style is what's going to make you convincing so sometimes you'll get feedback at prems like don't use your hand so much or uh all sorts of feedback about who you are how you present you know it's actually a very painful experience to go through rounds and rounds of pre prems where people are judging you on arguably some things that are not even relevant uh try to take away from that the feedback that you get um what works within your style some people speak very effectively using their hands and it's not distracting other people are best you know being still whether it's holding their hands together or doing something that keeps them still because if not they're going to be tapping a pen or they're going to be you know doing something you find your style you find what aspects of your style may be disservice and you find a way to like turn those off and then you find a way way to amplify what is good about your style so different jurisdictions people from different you know backgrounds will be more passionate about the in their delivery of their remarks others may be more you know you know reserved about the way they they speak you know that it's really working with your style if your style is you know to to use your hands or to you know give emphasis in your voice or whatever it is you know you've got to you've got to show who you are because that will make you a more convincing Advocate uh so so no one's gon there's no one way to present a case whether it's style or substance it's really about you know putting those together and putting on the best case that you personally can together with your colleague yeah I completely completely agree and the the speaking with your hands is is a very uh remark that I've always been received myself so someone who does that I always hold on to a pen to try and keep my hands at Bay but yes I think uh recognizing that there's um a lot of individuality and a lot of um Freedom once you are operating within the the pillars that the structure provides because you're able to bring that uh individuality to the actual argument um which makes it in my opinion fun for others maybe less so um but it is important to to work with your team and your coaches to identify what aspects of your natural personality may be a disservice in those 14 minutes whether it's you know how you use your hands or how you make eye contact or you know what are you doing with your feet underneath the table you know you should really edit out the behavioral aspects that are not good for your presentation overall and your colleagues can help you with that I've had years where we've counted how many ums were said by an oralist there were 41 ums in that 14 minutes how is that possible pause instead of saying um pauses are okay they're actually beneficial because it allows a foreign speaker to process what you're saying so figure out what it is that you do that's distracting and unhelpful with your team and then accentuate what is helpful and don't try to mimic someone who's really not like you and it just doesn't feel natural when you try to mimic them fine you really got to just be yourself when you're delivering your remarks couldn't couldn't agree more I think the the genuiness and the authenticity that you bring to the table uh will be very clearly seen by the panel whereas if you're trying to be something that you're not whether it's extroverted introverted or otherwise it will be seen as disingenuous um and can be seen through but on that note Professor McGrath I do want to thank you so much um I very much appreciated it I know each of our teams have appreciated having you here for providing us with a very thorough overview as we start our Journeys on preparing for the VIS in person as well as all the various PRS that are coming up um so I could not thank you enough and we look forward to hopefully seeing you in Vienna or at one of the many PRS either around New York City or around the world depending where uh you may be participating I wish everyone good luck who's competing and the team as a whole because I know that the team may include some who are not l Lally oralists competing but there is no I in team you are all a team and I wish you all collectively good luck both in Hong Kong and Vienna thank you thank [Music] you [Music]