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Fortior Arbitration Guide - Lecture 4 - Written Submissions

This lecture explains covers the written submissions most common in international arbitration and gives practical advice on how to prepare them.



In this lecture, I will cover 4 pleadings of the written submissions normally filed in every arbitration proceeding. In my prior lectures, I have already covered the request for arbitration and the response to the request of arbitration. Here I will cover statement of case, statement of defence and counterclaim, statements of reply and defence to counterclaim and reply to counterclaim.


Statement of Case

In the statement of case the claimant has to set out the factual background, the legal submissions upon which it relies and the detailed description of the relief which it seeks. Depending on the arbitration rules on which the Tribunal operates, all the Tribunal’s directions, the number of documents which you have to file together with the statement of case will vary. Sometimes you do not have to file any documents at all, sometimes you have to file all documents and sometimes you only have to file essential documents, with the others being supplied fully in disclosure and exchange of witness statements. The latter is the position under Article 15 of LCIA Rules.

Elements of the Statement of Case


Typically, the statement of case will have the following elements:


  • Description of the parties

  • Description of the contract between the parties, with reference to the relevant clauses

  • Description of the factual background, disclosing the breach of contract on the respondent’s part

  • Statement to the effect that the respondent is in breach of contract

  • Description of the losses suffered by the Claimant as the result of the respondent’s breach of contract

  • Description of the relief claimed, this will normally include: damages for breach of contract, interest and costs of the arbitration proceedings and legal costs


Statement of Defence and Statement of Reply

The defence is basically the reverse. In the statement of defence the respondent likewise has to set up the relevant facts and the legal submissions upon which it relies. If there is counterclaim it will be governed by the same rules as the main claim. The reply will likewise be governed by the same rules, except that the reply should not be a repetitive document. In the reply, the Claimant should only address the new issues raised in the statement of defence. Samples of all these submissions may be downloaded as part of our Arbitration Guide. The content of each submission will depend on the facts of each particular case. Instead of trying to anticipate those facts, I simply propose to set out 5 points, which you should bear in mind when drafting your pleadings.

POINT 1: Draft your introduction like you would draft an executive summary

Start your pleading with an introduction, which looks something like an executive summary. This will be the first part of your pleading, but it should be drafted last. When drafting your summary, ask yourself, what are the main arguments you are making and why should your claim or defence succeed. If your summary is the good one, the Tribunal might subconsciously read your pleading with the view to supporting what you said in your summary. If your summary is the bad one, the Tribunal might do the reverse.


POINT 2: Be clear and concise


Be clear and concise, write in short sentences. When you have drafted your pleading, give it to someone else to read, the chances are: if they cannot understand what you write- the Tribunal will not understand it either. If you write in long and complex sentences, the Tribunal might get bored and start skipping sentences, paragraphs and even pages of your pleading. Make the Tribunal’s life as easy as possible, make sure that what you write is clear and comprehensible, so that the Tribunal actually reads what you write and understands what you wanted to do and why.


POINT 3: Guide the Tribunal through your pleading


Guide the Tribunal through your pleading, provide signposts, divide your pleading into issues and sub-issues if necessary. For example, you might have a section in your pleading called “the pattern in facts”, it might be divided chronologically into facts that took place prior to commencement of arbitration and facts that took place afterwards. Each section might then be further subdivided with each fact going under the separate heading, namely issue. Heading and subheadings help the Tribunal to navigate through pleadings and make the Tribunal’s life easier. Make sure that you number all paragraphs, so that if you have to refer to your pleading later, the Tribunal does not have to read through all of it in order to understand what you are referring to.


POINT 4: Read your opponent’s case carefully


Read your opponent’s case carefully. You may sometimes anticipate the claims or defences, which your opponents are likely to run, but they might see the case differently. Do not address the arguments which they do not make, because they might realize that they are missing something and bring it up later in the arbitration. If you do not read your opponent’s case carefully, you might miss some arguments. This may lead to the application for the partial award against you, because there is no defence to one or more claims which your opponent are running.


POINT 5: Do not conveniently forget things or ignore arguments


Do not conveniently forget things or ignore arguments. If there is an inconvenient fact or legal issue, do your best to address it. The fact that you ignore an argument, does not mean that the Tribunal will. The easiest way for the Tribunal to rule against the Respondent is to says something like this:


“The Claimant seeks damages in the amount of $1m, the respondent does not raise any objections as to the quantum. We, therefore, award the Claimant its claim in full amount sought”.


This concludes my lecture on written submissions.


If you require more information, please download our Arbitration Guide at www.fortiorlaw.com. Our Arbitration Guide provides more information as to how to commence the arbitration proceedings and it contains template notice of arbitration and the template response to the notice. Alternatively, get in touch with one of our lawyers at info@fortiorlaw.com.

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