Arbitration November in Kyiv

13 November 2013 was a day full of arbitration events for young arbitration practitioners in Kyiv, Ukraine. They included a workshop “Strategy Considerations in International Arbitration”, a conference “The New Vienna Rules – Quality Arbitration at Your Doorstep”, a programme “Building a Career in International Arbitration” and a Young Arbitrators Forum event  “’Third Parties’ in International Arbitration”.

All these events provided young arbitration practitioners with excellent opportunities to discuss specific international arbitration issues with more experienced colleagues from the leading international law firms in Ukraine and the CIS.

Young ICCA Workshop “Strategy Considerations in International Arbitration”

In the morning the workshop “Strategy Considerations in International Arbitration” took place at the office of Squire Sanders – Salkom International Association. It gathered nearly 40 Young ICCA members as well as young arbitration practitioners and students from Austria, Canada, France, Germany, Poland, Republic of Kosovo, Russia, Slovak Republic and Ukraine.

The first session saw Rostislav Pekar, Squire Sanders (Prague) and Julia Popelysheva, Clifford Chance (Moscow) conduct a high-level discussion on issues of striking a balance between the client’s objectives and budget expectations, choosing witnesses and collection and production of documentary evidence in international arbitration.

In particular, the panellists stressed that costs are a crucial issue which should be discussed with the client before the initiation of any arbitration proceedings. It is necessary to explain to the client all budget expectations and try to take into consideration all possible risks of the case in this regard. The panel also discussed the issue of third party funding and contingency fees.

The panel members stated that counsel should take the case on a contingency-fee basis only after indication of all cultural and legal peculiarities. In particular, the panel members gave an example of third party funding in the investment arbitration case against Ukraine, and described the particularities of relations between counsel and third parties, who may influence the legal aspects of the case.

The speakers stressed that witnesses can play a key role in arbitration proceedings. Thus, while choosing witnesses counsel should take into consideration witnesses’ personal qualities such as emotional stability and good communication skills. In addition, if the witness does not know the language of the proceedings, adequate and accurate translation becomes a crucial issue. However, the majority of the panellists agreed that witness testimony is not always necessary. In most cases it is used only when the relevant documentary evidence on the case cannot be provided.

The speakers of the second session, Markiyan Kliuchkovskyi, Egorov Puginsky Afanasiev & Partners (Kyiv) and Eva Storskrubb, Roschier (Stockholm), discussed the interaction of counsel with the tribunal and opposing counsel, counsel’s role in familiarising the tribunal with the relevant issues and evidence as well as witness examination.

The panellists indicated that body language and eye contact are very important for counsel during all his/her arguments presentation. Moreover, it is always necessary for counsel to thoroughly research the arbitrators’ background in order to understand their position with regard to certain legal issues implicated in the case.

In addition, the panel members mentioned that the opening statement, introducing for the whole story, may play an important role in the perception of the case by the tribunal. However, they indicated that arbitrators from certain jurisdictions (for example, Germany) usually do not pay much attention and hence do not provide much time for the opening statements as others (for example, arbitrators from England or the USA).

The speakers also formulated some “golden rules” for witness examination, eg that the counsel cannot ask a question the answer to which he/she does not know; it is better not to ask “why?” questions , as the answers to such questions are rarely predictable, and others.

Professor Dr. Richard Kreindler, Cleary Gottlieb Steen & Hamilton LLP (Frankfurt) and Svetlana Romanova, Metinvest Holding (Donetsk) discussed the above-mentioned issues from the arbitrator’s and in-house lawyer’s perspectives. They gave valuable advice for young practitioners with regard to the highly important role of paralegals and junior associates in the elaboration of the strategy in international arbitration. In particular, the speakers stated that juniors are responsible for the full factual research of the case and have to know the facts even better than their senior colleagues.

Partners are not expecting that, being at the beginning of their career, the junior associates will know everything, and, thus, they should not be afraid to ask questions or reasonably disagree with the seniors on certain issues. Moreover, the panellists indicated that sometimes even the cross-examination of some witnesses may be more successful from psychological point of view if conducted by younger associates.

Overall, the workshop provided deep insight into the practical aspects of all stages of preparation of the case in both commercial and investment arbitration. The event was moderated by Mykyta Nota, Avellum Partners (Kyiv) and Olena Perepelynska, Sayenko Kharenko (Kyiv). The Steering Committee included Mykyta Nota, Olena Perepelynska  and Olga Troshchenovych, Freshfields Bruckhaus Deringer (Frankfurt).

A detailed review of the workshop can be found here.

Tetyana Makukha

Junior Associate at Sayenko Kharenko