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The Task Force on Third-Party Funding was a joint project between ICCA and Queen Mary University of London which set out to systematically study and make recommendations regarding the procedures, ethics, and policy issues relating to third-party funding in international arbitration.
An overview of upcoming Task Force events and meetings 2 October 9 October Norton Rose Event in London public 17 November The draft report is available here. Rusty Park, please email your remarks to tpftaskforce arbitration-icca. ICCA President Donald Donovan expressed his support for the project saying "ICCA is grateful for all the hard work by members of the Task Force, and hopeful that the draft report will promote robust discussion during the public comment period.
In the lead up to the launch of the final report at the ICCA Congress in Sydney in Aprilthe Task Force will also be discussing the draft report with representatives of the insurance industry, maritime arbitration practitioners and other international arbitration experts.
Should you have any queries, please contact bureau arbitration-icca.
A copy of the Annex can be viewed and downloaded here. The draft will be posted for comment on ICCA's website www.
Rusty Park, look forward to engaging with public comment on the draft, which will include chapters on the impact of third party funding on costs and security for costs, attorney-client privilege, and conflicts, together with overarching chapters on definitions and best practices. For more information, please contact bureau arbitration-icca. Drawing on the findings of the ICCA-Queen Mary Task Force on Third Party Funding, the conference offered participants a deeper look at what defines third party funding and opened a discussion about the legal-ethical concerns surrounding the concept.ICCA 2017 - The Nor'easters
A discussion evolved and came to the conclusion that counsel should never go into a witness interview with a prepared draft, avoid that the briefs and witness statements have the same tone, and not try to put too much on the back of a single witness. Professor Sachs then mentioned that one way to ensure the effectiveness of witness statements is to have a meaningful mid-stream conference.
This procedure, which is sometimes referred to as Kaplan Opening, aims at creating more interaction between counsel and arbitrators.
It stems from an old tradition in the UK and amounts to having a mini-hearing after the first round of submissions in which the arbitrators, based on the briefs and documents they have received at that point, discuss with counsel the relevant issues on which they want to hear more or need more evidence.
Adopting this approach will often lead to a more effective and focused second round of submissions and witness statements. Clients hardly ever want to have a brief with excessive attacks on opposing counsel or witnesses filed on their behalf. Tanya agreed that keeping language simple and easy to follow should be a rule adopted by both native speakers and non-native speakers.
Thomas advised against hammering home a point at oral hearings as the arbitrators may see this form of educating the tribunal as offensive.
Counsel should rather focus on convincing briefs and anticipate problems at the hearing. Professor Sachs also opined that practitioners should concentrate on clear language, avoid too strong terms and repetitions and try to be concise.
The second session included the following topics: According to Bernd, who wrote a seminal article on the topic, demonstrative exhibits were first used in jury trials in U. Demonstrative exhibits are evidence presented through visual aids with no probative value that are expressly created for the proceedings.
Examples frequently encountered in practice are charts, graphs, timelines, computer animations or simply enlarged copies of decisive contract provisions. When asked which rules should be taken into account when using demonstrative exhibits, Bernd stated that there are no hard-and-fast rules with respect to demonstrative exhibits, and that arbitral tribunals generally admit them but retain discretion to address their cogency and probative value. They simply turn complex information into interesting and persuasive graphics.
Berlin Young ICCA Arbitration Skills Training Workshop 27 September - ICCA
She considered that the use of demonstrative exhibits depends on the subject matter of the case: The goal is to find a perfect balance and not to overdo this exercise by focusing on the most relevant aspects. Olga explained that counsel should always verify whether visual aids are really useful to know and understand the facts of the case. Regarding technical issues, it may rather be helpful to liaise with the client. However, engineering issues can for example also be visualized to help the tribunal understand what counsel or experts are talking about.
Other examples include tables detailing payment streams or damage calculation, charts showing developments in different markets, shares or currencies or other graphs such as timelines that tribunals often find helpful.
Professor Sachs remarked that it makes a difference whether demonstrative exhibits are incorporated into a brief or used in an opening statement.
The other party will normally counter that it has not created something new since all relevant facts used in the demonstrative exhibit are already on record. It can also be very challenging for an in-house counsel to trace the right information. The next task then consists of understanding what is technically relevant and translating it for external counsel so that they can digest the facts. Professor Sachs mentioned that he considers it very important to provide the tribunal with charts visualizing all relations, dates, assignments and mergers in multi-party and multi-contract arbitrations.
Concluding this topic, Professor Sachs stated that there is a common agreement that demonstrative exhibits are helpful if used correctly. They must be well prepared and well dosed - otherwise they will not enhance the quality of the pleadings. At the same time, arbitration practitioners have to take a critical look at such new developments because the more parties use innovative tools such as demonstrative exhibits, the more complex and therefore more expensive the proceedings become.
Professor Sachs left the audience on a personal note, stating that maybe it would be time for practitioners to forget a little about complicated visual aids and to go back to the roots of arbitration: Arbitrators should therefore actively work against this trend by streamlining the proceedings.