After reading Stacie Strong's article, I guess I'm not so surprised to hear that there aren't many publications about research methods on international arbitration. Just reading about the various treaties and arbitral rules and the Model Rules this semester has demonstrated that the lack of a set code or civil law makes the practice area quite nebulous, and there is no one handbook on how to navigate preparing for an arbitration.
I know we've seen these laid out before, but I wanted to take this opportunity to memorialize Strong's list of the types of authority used in international arbitrations on my blog so I can reference them quickly in the future:
"In all, there are seven types of legal authority, including, in roughly descending order of importance:
• International conventions and treaties;
• National laws;
• Arbitral rules;
• Law of the dispute (procedural orders and agreements between the parties);
• Arbitral awards;
• Case law; and
• Scholarly work (treatises, monographs and articles)."
I'm particularly heartened to hear Strong say that by the time the oral arguments roll around "most of the advocacy has already been done and is firmly constricted within the confines of binders of documents and long pages of arguments and prior statements.” I definitely prefer the brief-writing to the oral argument portion of arbitration and think that it's definitely the more important portion (perhaps that's my bias, but I think it's still true given the huge amount of prep time in comparison with a few minutes in front of the tribunal). Strong's tips are helpful (and timely for our class) and I will consult them again when the problem goes out in a couple of weeks.
Monday, September 26, 2011
Monday, September 19, 2011
Oral Advocacy
Apologies for my tardiness. I, too, am playing catch-up after a busy music weekend at ACL.
One thing I can say is that I wish I had read this section before my first oral argument. Granted, the actual experience is a much better learning mechanism than just reading about it, so the retrospective advice is still helpful as I reflect on ways to improve for next time.
The keys I took away from this reading are:
-Preparation (pretty obvious)
-Simplicity
Clearly prepping and rehearsing are essential. I think with last week's first run, part of my insecurities were that I wasn't sure I completely understood everything I needed to address so my notes were more scattered than they should have been, and I focused way more on just trying to understand the problem than on rehearsing my own argument. In the future, I will spend way more time preparing so that the fundamentals will be covered and I can focus more on the delivery.
Simplicity, however, is probably underemployed, at least by new advocates. No matter if the audience is a bunch of 5th graders or Nobel Laureates, everyone appreciates a clear, simply-put summary of the main points. I think before reading this, I would have assumed that I need to make sure to use all the appropriate technical language from the relied upon conventions and codes and dazzle the audience with all the fine points and complexities of the issues. It is still necessary to understand all of that and have it at my disposal for nuanced questions from the tribunal, but it will probably be a useful tool for me as the speaker to learn all the necessary details, and then go back and simplify everything down into layman's terms at the very end of the preparation and rehearsal process.
It seems that there could be an inclination for advocates who are comfortable with "performing" to add some dramatic flair to both the opening and closing arguments. When I've observed opening and closing statements that appear to be more performance and less "straight shooting" I'm sometimes a bit skeptical and slower to warm up to the underlying message. Cheesiness is to be avoided at all costs, and I'm a pretty big critic of overt displays of bravado. I understand that everyone has his and her own narrative style, and story-telling flair can grab the tribunal or jury's attention and be much more memorable than a more conventional recitation of the issues. I just don't think that this style is for me. That being said, I am interested in working on developing my own narrative style, and the first step is being well-prepared so that once I've covered my bases I can focus on the delivery and being receptive to the audience.
One thing I can say is that I wish I had read this section before my first oral argument. Granted, the actual experience is a much better learning mechanism than just reading about it, so the retrospective advice is still helpful as I reflect on ways to improve for next time.
The keys I took away from this reading are:
-Preparation (pretty obvious)
-Simplicity
Clearly prepping and rehearsing are essential. I think with last week's first run, part of my insecurities were that I wasn't sure I completely understood everything I needed to address so my notes were more scattered than they should have been, and I focused way more on just trying to understand the problem than on rehearsing my own argument. In the future, I will spend way more time preparing so that the fundamentals will be covered and I can focus more on the delivery.
Simplicity, however, is probably underemployed, at least by new advocates. No matter if the audience is a bunch of 5th graders or Nobel Laureates, everyone appreciates a clear, simply-put summary of the main points. I think before reading this, I would have assumed that I need to make sure to use all the appropriate technical language from the relied upon conventions and codes and dazzle the audience with all the fine points and complexities of the issues. It is still necessary to understand all of that and have it at my disposal for nuanced questions from the tribunal, but it will probably be a useful tool for me as the speaker to learn all the necessary details, and then go back and simplify everything down into layman's terms at the very end of the preparation and rehearsal process.
It seems that there could be an inclination for advocates who are comfortable with "performing" to add some dramatic flair to both the opening and closing arguments. When I've observed opening and closing statements that appear to be more performance and less "straight shooting" I'm sometimes a bit skeptical and slower to warm up to the underlying message. Cheesiness is to be avoided at all costs, and I'm a pretty big critic of overt displays of bravado. I understand that everyone has his and her own narrative style, and story-telling flair can grab the tribunal or jury's attention and be much more memorable than a more conventional recitation of the issues. I just don't think that this style is for me. That being said, I am interested in working on developing my own narrative style, and the first step is being well-prepared so that once I've covered my bases I can focus on the delivery and being receptive to the audience.
Monday, September 12, 2011
CISG: Formation
I read this week's assignment with an eye toward the first in-class oral argument. As such, I paid special attention to the section on p. 21-23 regarding validity. The validity of the "alleged agreement" is part of the question in this week's problem regarding whether the Super Market rescinded their offer in time to avoid conclusion of the contract, which may determine whether Wine Co-op can bring them into an arbitration. (I'm over-simplifying, but this is the issue I want to focus on for this post.) I realize that this section of the CISG is differentiating between "formation" and "validity" because the CISG governs formation of a contract, whereas it does not govern other validity issues. Rather than focusing on examples of validity issues (and there are others in our problem), I just want to focus on the definition of formation as it applies to the ability to bring a party into an arbitration.
Take a look at the CISG's definition of formation:
"The predominant opinion correctly assumes that 'formation' in the sense of the CISG is the so-called 'external consensus', i.e. the mechanics of how the contract is concluded (e.g. offer and acceptance)."
Without choosing the claimant or respondent's side, I initially interpreted "formation" to include the process leading up to the actual conclusion of the agreement, "how the contract is concluded," whether a conclusion is reached or not. To me, this jibes with "external consensus" because the attempt to form an agreement leads to a general consensus before any signatures are involved. To consider formation to be the concrete, signed, concluded contract, would mean that "formation" excludes all the steps leading up to the agreement. I don't agree with the notion that if the existence of the concluded contract is disputed, it means that the side believing that no contract was formed can refuse to participate in an arbitration on the basis that there was no formation. To say that you must have a contract in order to argue about whether or not there is a contract negates the purpose behind arbitrating to resolve such disputes. Thus, if you can only arbitrate relating to the "formation, interpretation, breach or termination" of the contract, then formation should include the process leading up to the conclusion of the contract to allow arbitration to resolve whether or not an agreement was ever officially concluded or not.
Take a look at the CISG's definition of formation:
"The predominant opinion correctly assumes that 'formation' in the sense of the CISG is the so-called 'external consensus', i.e. the mechanics of how the contract is concluded (e.g. offer and acceptance)."
Without choosing the claimant or respondent's side, I initially interpreted "formation" to include the process leading up to the actual conclusion of the agreement, "how the contract is concluded," whether a conclusion is reached or not. To me, this jibes with "external consensus" because the attempt to form an agreement leads to a general consensus before any signatures are involved. To consider formation to be the concrete, signed, concluded contract, would mean that "formation" excludes all the steps leading up to the agreement. I don't agree with the notion that if the existence of the concluded contract is disputed, it means that the side believing that no contract was formed can refuse to participate in an arbitration on the basis that there was no formation. To say that you must have a contract in order to argue about whether or not there is a contract negates the purpose behind arbitrating to resolve such disputes. Thus, if you can only arbitrate relating to the "formation, interpretation, breach or termination" of the contract, then formation should include the process leading up to the conclusion of the contract to allow arbitration to resolve whether or not an agreement was ever officially concluded or not.
Wednesday, September 7, 2011
Reservations of the New York Convention
Please excuse my delay... I promise to be on schedule next week!
After reading more in detail about the New York Convention, I'm left with several questions regarding the (1) reciprocity and (2) commercial relationship reservations, and have attempted to construe various hypothetical situations that might not fall under the New York Convention.
Regarding reciprocity, if for instance, the United States enters into an agreement with a country who has not signed the New York Convention, such as Germany, will there only be reciprocity if the location of the arbitration is in a State which recognizes the New York Convention? Meaning that despite the fact that Germany is not a signatory and has not agreed to be held to the New York Convention, if they are compelled to arbitrate in a third state (neither the U.S. nor Germany) which has signed the New York Convention, then they are held to it? So it seems that as long as 2 of 3 factors agree to the New York Convention (at least one party, and the State where the dispute is arbitrated, or else both parties in a neutral state), the award will be enforceable.
The commercial relationship stipulation makes sense to me, because it seems that the vast majority of arbitrations center around international trade and commerce in some sense. But does this mean that arbitration under the definition of the New York Convention will never involve something political in nature, or a dispute that involves an individual as one of the parties? For instance, say the Jamie Leigh Jones v. Halliburton/KBR had actually occurred with international players in some sense, for instance a foreign "subsidiary" of KBR (I add quotes because in my hypo it would be a company that was originally autonomous and later acquired by KBR such that it is more definitively foreign and not just located in a foreign state) and perhaps even if Jamie Leigh Jones had been a foreign national contractor instead of an American. In that case, a term of her employment was that any dispute would be resolved through arbitration. Because her claim was not commercial in nature, would this mean that it would not have been subject to the terms of the New York Convention? And what would be the ramifications of recognizing and enforcing an award in such a dispute not subject to the New York Convention?
I assume we will clarify many of these issues in class, but these are the immediate questions I had in response to this week's reading.
After reading more in detail about the New York Convention, I'm left with several questions regarding the (1) reciprocity and (2) commercial relationship reservations, and have attempted to construe various hypothetical situations that might not fall under the New York Convention.
Regarding reciprocity, if for instance, the United States enters into an agreement with a country who has not signed the New York Convention, such as Germany, will there only be reciprocity if the location of the arbitration is in a State which recognizes the New York Convention? Meaning that despite the fact that Germany is not a signatory and has not agreed to be held to the New York Convention, if they are compelled to arbitrate in a third state (neither the U.S. nor Germany) which has signed the New York Convention, then they are held to it? So it seems that as long as 2 of 3 factors agree to the New York Convention (at least one party, and the State where the dispute is arbitrated, or else both parties in a neutral state), the award will be enforceable.
The commercial relationship stipulation makes sense to me, because it seems that the vast majority of arbitrations center around international trade and commerce in some sense. But does this mean that arbitration under the definition of the New York Convention will never involve something political in nature, or a dispute that involves an individual as one of the parties? For instance, say the Jamie Leigh Jones v. Halliburton/KBR had actually occurred with international players in some sense, for instance a foreign "subsidiary" of KBR (I add quotes because in my hypo it would be a company that was originally autonomous and later acquired by KBR such that it is more definitively foreign and not just located in a foreign state) and perhaps even if Jamie Leigh Jones had been a foreign national contractor instead of an American. In that case, a term of her employment was that any dispute would be resolved through arbitration. Because her claim was not commercial in nature, would this mean that it would not have been subject to the terms of the New York Convention? And what would be the ramifications of recognizing and enforcing an award in such a dispute not subject to the New York Convention?
I assume we will clarify many of these issues in class, but these are the immediate questions I had in response to this week's reading.
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