Moot Court Advocacy Series – Season IV: ‘Advanced Oral Advocacy’, Episode IV: ‘Interaction with Arbitrators’

Hello everyone,

it is the fourth episode in the Advanced Oral Advocacy season! Today we will explore the rules of interacting with arbitrators.

The impression you leave matters a lot when arbitrators score your pleading. Interacting with them requires courtesy and professional approach. However, drawing a line between what is appropriate and what is not might be tricky. The fact that different arbitrators might have different expectations does not make it easier.

Let’s see how to successfully navigate through these rocky waters!

  1. Arbitrators are always right…

…as long as they do not get the merits of the case wrong, of course. You are free to argue with them about your legal arguments. What you must not do is second-guessing the way they govern the hearing.

When we compare the hearing to an orchestra, arbitrators are obviously its conductors. As a counsel, you can agree with them what kind of piece of music you play and what kind of instruments you can use, but once everything begins, the arbitrators have the final say.

What does it mean in practice? Arbitrators might request you to reverse the order of your pleading. They might ask you to skip certain arguments and move to other issues. To address a point you wished to omit, but they are nevertheless interested in. As a counsel, your job is to deliver what the tribunal requests and attempts to avoid or question their requests will meet with resistance and disappointment. So, when directed by the tribunal, carry out arbitrators’ requests. And do so gladly 😉

  1. Arbitrators have the right to be mean

Do not get me wrong – in the majority of cases moot court arbitrators are positive, open-minded people whose aim is to enjoy the experience, not to humiliate participants. However, as always, there are some people who by their nature might be rough on others, come across as less likeable or simply act in a less courteous way because they have such manner or are having a bad day. Bottom line is, no matter how unpleasant an arbitrator may be, you do not have the right to respond with the same approach. Even if you feel you are being under too much fire, stay calm, composed and polite. As discussed earlier, good manners matter, even if some members of moot panels forget about it from time to time.

  1. Arbitrators love when you pick up on something they said

In the course of every pleading arbitrators ask questions, share their ideas, invite counsels to comment on a particular scenario that they draw or simple demonstrate genuine interest in a particular issue or argument. You should take notice of it, write it down and then use it while you respond or during your rebuttal! Arbitrators will love it if you pick up on a question they asked, concern they shared or argument they seemed to support. By saying: ‘as pointed out by madam arbitrator…’ and developing an argument around it you show that you are attentive, quick to respond and able to establish a connection between you and the tribunal. Sharing arbitrators’ interest in a particular aspect of the case is not about stroking his or her ego. It is about being helpful – if arbitrators focus on something, then it means they find it critical for the case.

Make sure that you do not misstate anything, though. Putting words in arbitrator’s mouth will backfire seriously.

  1. Arbitrators can be asked for something – if you agreed on it previously

Being subordinate to arbitrators does not mean giving up if you believe something that you have the right to is taken away from you. If you agreed on something and arbitrators seem to have forgot about it, just remind them politely, and they will happily agree. In the majority of cases some arbitrators tend to get the time allocation wrong or forget about rebuttals and surrebuttals. If you fail to get the pleading back on the agreed track, you might waste an opportunity to provide the tribunal with a good argument.

All in all, if you follow these rules, you should be able to survive the pleading without insulting anyone – but also without giving up anything you are entitled to!

Best wishes,

Marek

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