Opening and Closing Arguments

First of all, I want to apologize for the late post. I've been I'll these past couple of days, and had vertigo, so I really could not read, much less write. Hopefully I'll be good to go by Wednesday.

I really enjoyed Chapters 14 and 19 because it put words to what several of us have conceptualized about oral arguments over the years. The most important point, at least for me, out of chapter 14 was "STRUCTURE STRUCTURE STRUCTURE." Having a simple narration that conveys your arguments effectively is key to making a good opening argument.

The chapter mentions that each attorney can use an outline that provides them with enough detail to allow them to look at the arbitrators, and only look at their outline to make sure that they're hitting the key points. Being a reading/writing person, I know that just writing an outline will not do for me. I actually have to write down my whole argument, read it aloud to myself several times, and then create an outline from what I wrote. It may seem like extra work, but I think it makes it much easier for me to remember the necessary information. In the end though, everyone knows what works best for them.

The reading also pointed out things we may not have thought about before. For example, concerning your pace, it is better that you slow down or completely pause if the arbitrators are trying to locate a document you referred them to or they're writing alot. Also, you have to be aware of transnational communication issues, such as translation and the interpretation of your body language. Having done a little legal translation and interpretation in the past, I know that it is of great help to provide the translator/interpreter with the legal terms and points you will be discussing in your argument. Otherwise, your message might be lost in translation.

You also want to be credible, and to this end, many of us from the western countries like to look the arbitrators in the eye. However, the reading points out that other cultures might see this as a sign of disrespect. Obviously, this can make a HUGE difference to the credibility and acceptance of your argument.

I was surprised to learn that in arbitration, the closing arguments should not be a simple summary of your arguments. It should include information that reminds the arbitrators of specific facts which support specific arguments.

But I am left wondering, why are counsels given 2-3 weeks to submit their closing arguments if these are in writing? I don't see why it takes so long, considering they have all discussed the facts, evidence, and legal arguments already.

A few notes and thoughts on the CISG initial reading...

Right away, the author notes that the CISG governs only three areas: conclusion of the contract, obligations of the seller including the respective remedies of the buyer, and the obligations of the buyer including the respective remedies of the seller. Having not done much contract law since my traumatizing experience in the spring with Professor Kadens, I initially assumed this was enough. Eventually, I came to the realization that very important things were left out.

However, I do appreciate the CISG alot more than the other organizations which we have read about, because the convention seems to recognize the neutrality that may be attained through uniformity. CISG’s  principle of autonomous interpretation and the international character help promote this uniformity. Domestic standards of interpretation do not suffice in the international business arena, and this is awesome because it eliminates at least a little bit of variation amongst different countries.

Neverthe less, there remains the commitment to honoring the parties' intentions, as stated in Art. 8(1): Subjective meaning will be used to interpret the intention behind the statements or conduct of parties when they all intended the same meaning – subjective meeting of the minds - and when there is no other way that the parties could have understood more than one meaning.  In case these alternatives fail, Art. 8(2) gives us a familiar standard: If the first options fail, then resort to objective interpretation based on what reasonable person would’ve thought. Finally, I like the fact that negotiations and subsequent actions b parties will be considered to determine what the parties thought was the meaning of the contract. The CISG excludes parol evidence rule, which has seemed have lost its objective over time anyway. Quite frankly, I found it an archaic rule - another obstacle for attorneys to overcome.

Nevertheless, CISG has received criticism for trying to apply univormity. Particularly, it has been criticized for applying the Incoterms to contracts, but that promotes uniformity, and easier application of the law, as shown by the German courts. Furthermore, there is a reasonable approach to the desire for uniformity. The CISG does not push for any “world languages,” merely that the parties understand the language in which they read terms, particularly standard terms.

Furthermore, the CISG attempts to "fill in the gaps" and thus promote uniformity through the gap filling principles of the CISG Art. 7(2). It states that the gaps are to be filled according the CISG general principles, and if these don’t exist, according the private international law – but not domestic law. UNIDROIT Principles may be used only to support the CISG’s general principles.

However, this is precisely where I begin to see vagueness... because the principles may not be written, they may either be invented or "erased." Different rules may end up being applied to different situations.

Finally, I go back to my initial point - that which the CISG does not cover. Art. 4. CISG: "CISG governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. CISG is not concerned with the validity of the contract or of any of its provisions or of any usage. Nor is it concerned with the effect which the contract may have on the property in the goods sold." Domestic remedies are the remedies usually proscribed to those not covered by the CISG, so this leads to lack in uniformity in several areas, including important areas such as tort and contract defenses such as fraud. Indeed these are important matters that I think the CISG should address, considering how fundamental they are to contracts law.

Potential Inconsistencies in Arbitration

In one of my prior posts, I referred to how cumbersome the arbitration process in the international arena is becoming. Redfern and Hunter's chapters describing the laws governing arbitration add to my frustration with the process. While ideally international arbitration is supposed to be binding, in reality it is the superior tribunal's ruling which is binding... supposedly. The losing party can still appeal in the "seat" of the arbitration proceedings.

Furthermore, this whole process is complicated by the fact that no uniform set of procedural rules has been established in international arbitration. Indeed, the reading indicates that such rules might be impossible given the different cultural and educational backgrounds of all legal professionals. However, if delocalization, with its more sensible idea of having only one procedural law - that of the place of enforcement, cannot be uniformily agreed upon, what hope do other procedures have? Remember, these procedures come with the already familiar problems of distinguishing between procedural (lex arbitri) and substantive law. They're further complicated when for some reason or another, some attorneys decide to use the procedural rules of one state, while located in another state with its own procedudral mandates, and at the same time having to apply the original substantive law that is involved. No wonder there are appeals processes. The whole process is too convulated.

Greater uniformity is needed in the arbitration process. Otherwise, losing parties will keep finding procedural, substantive, or adjudicative grounds to appeal. With the extensive appeals opportunities, what is the point of arbitration other than privacy? Finally, we run into the same problems of enforcement, with commercial pressures and the state systems having to get involved - options which could've been used in the first place. In the end, the parties can forum shop to find a state that will enforce awards in both in the arbitration world, with the support of the NY Convention, and in the states' judiciaries.

Why Arbitrate?

Redfern & Hunter have pointed out that the field of international arbitration is ever-changing and ever expanding. Most parties enter international arbitration because they have agreed to an arbitration clause. This practice seems to have extended to the international government sector as well, though the reading does not directly say this. It says that states have started using “agreements to arbitrate” when making treaties with one another, stipulating that any disputes will be resolved through international arbitration. With emerging technologies and “increased complexity of international trade” bringing in more international parties into the picture, it is no surprise that international arbitration keeps expanding.

On another point, because individuals and/or states agree to submit their issues to international arbitrators, whenever there is a dispute and an arbitrator decides the issue, the decision is made enforceable in the international arena.  So, at least when we have parties of equal bargaining power, it seems that arbitration might make states and private parties more responsible and more accountable. On the other hand, international arbitration is becoming increasingly costly and takes an increased amount of time to resolve matters. Worse is the fact that an arbitrator cannot directly enforce awards without the help of a judge, so if there is a losing party unwilling to pay an award, the winning party may have to wait more time to get its money. Sadly, the parties end up seeing the person they were trying to avoid in the first place – a judge.

Thoughts on Culture and Psychological Dynamics in Int'l Arbitration

I was surprised to read in chapter 1 that many lawyers do not study their arbitrators before appearing before them. Perhaps the scientific studies proposed in Chapter 4 are too dense for lawyers to conduct, but the least an attorney could do is research the basic biography of their arbitrator, or at least read a little on the legal culture of the arbitrator's nationality. The lack of preparation that many attorneys put into this process astonishes me because it is a practice many attorneys conduct in the United States, at least when they're about to appear before a judge. Furthermore, researching some basic facts about an arbitrator and her culture seems necessary to conduct any research about the arbitrator's internal road maps. It seems that any advocate who does not research her arbitrator is at a great disadvantage and does a great disservice to her client.