Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

28 April 2024



28 APRIL 2024



“I will let you know what actually happened in the TDA case in the final episode but park it in your mind as we return now to the next episode of the Arbitration case focusing on damages. Remember in the arbitration case you, the Advocate, are representing a client who you believe may be relying on a false contract to establish a lower market figure for the damages he has to pay.”

What are you – the Advocate with suspicions – not going to say to the Client? You do not accuse him of being a liar or a fraudster or a manipulator of documents. Such accusations may pass through your mind but you do not represent a client by accusing him/her of being a cheat. That is not your job. You are there to represent the Client and not to convict him. You are the Advocate not the Judge or the Jury.

So you let the Client down step by step. You take him/her through the evidence noting what the Client is saying at each point in the evidence and talking through the doubts that will be in the minds of the arbitrators. You have been an arbitrator – you know how the arbitrators will assess the evidence. It will be a step-by-step discussion of the evidence with the focus on what the Arbitrators consider is strong evidence and what is weak.

You have been selected to be the Advocate for two reasons – first, because you are good at advocacy. You are clear, well organised, and familiar with the documents. There are other Advocates but the Client has chosen you. The second reason? – because you can look at the facts from two different points of view. The first perspective is from the client’s point of view and the second is from the arbitrator’s point of view. You can be subjective and wear the shoes of the Client – you can also be objective and wear the shoes of the Arbitrator. Your goal is to do right by the Client – to give the Client your own view of the strengths and weaknesses of the Client’s arguments and how they are likely to be received by the arbitrators.

You should avoid being dismissive, heated, controversial or confrontational. It is not necessary. Remember the Artichoke image. Take the Client’s defence point by point (leaf by leaf), assess each point For and Against and talk up the probable way in which it will be interpreted by the Tribunal. And convey your views in a tone and manner which is acceptable to the Client. Don’t get frustrated or irritated or tetchy. Just be persistent and objective and always with the client’s best interests uppermost in your mind

So with the issue of the questionable contract you focus on how the contract discussions were initiated with the seller; how matters were discussed within the Client’s office; your views at the time of the low price; the decision-making process by the Client; and the absence of supporting market evidence and inner office contemporary paperwork. You give the case for the Client’s position and the likely case against that your opponent’s advocate will make even suggesting questions that will be put to the Client by the Buyers’ advocate in cross-examination, and by the Tribunal. Be balanced, fair, independent and just a little persistent.

It is the Client’s case and not your case. So unless the Client is asking you to lie for him you put his case to the Tribunal and you do so with all the presentation skills you can muster. So Head Up, Take a Deep Breath, Be Strong of Voice and Clear of Purpose and Do your Very Best.




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