Young ICCA Webinars: Efficient Legal Research Strategies for International Arbitration Cases

Part Two:

Post Event Report

Report prepared by: Gaone Laurel Tlagae (Litigation Attorney, Kewagamang Law Firm (Botswana); Guillermo Madrigal (Assistant Director, Ministry of Economy of Mexico). 

On 23 June 2021, Young ICCA organized a webinar focused on efficient legal research strategies in international arbitration cases in collaboration with Kluwer Law International.

Moderated by Prof. Dr. Stephan Schill (General Editor, ICCA Publications), the webinar faculty comprised Mona Wright (Senior Professional Support Lawyer, White & Case LLP) and Vincent Verschoor (Resident Arbitration Content Expert, Kluwer Law International).
 

The webinar began with an introduction and overview of ICCA and Young ICCA by Theominique Nottage (Young ICCA Co-Chair), followed by introductory remarks on legal research in international arbitration from Prof. Dr. Schill. 

Prof. Dr. Schill pointed out that legal research is a central part of international arbitration. He also highlighted some differences between legal research on international arbitration and traditional legal research for a domestic case, such as the sources and tools. Prof. Dr. Schill then invited Ms. Wright to address in detail the above issues with respect to legal research in international arbitration.
 

During her presentation, Ms. Wright shared some useful recommendations to assist young practitioners in preparing their legal research. First, she stressed the importance of asking the following questions before embarking on legal research of any kind: 

• How much time do you have for the task?
• Who is the research for?
• What is the ultimate purpose of the research? 

Second, while keeping these questions in mind, Ms. Wright encouraged participants to follow, what she considers to be the ‘Golden rules or strategies for efficient legal research in international commercial arbitration’ as enumerated below:

1. Set parameters for your research (such as timing, context, scope and purpose).  
2. Avoid wasting time researching things you or your case do not need and keep track of your sources.
3. Be practical. 
4. Manage your research expectations in terms of what you can find and where.
5. Be international and open minded in your outlook.

Ms. Wright continued her presentation by highlighting the fact that there is no one way or one right way to do research in international arbitration.  Finally, she highlighted other practical aspects to consider when conducting legal research in international arbitration, such citing authorities or  other instruments (e.g., soft law instruments, guidelines and even surveys) and the variety in terminology in international arbitration as well as sources.

Ms. Wright concluded her presentation by stating that sometimes there is no perfect or exact solution to a problem, but there may be plausible support for your argument, which may be the ultimate goal of your research.

Prof. Dr. Schill, as moderator, then referred to legal research and strategies in the broadest sense. He went on to say that it is not only knowledge of facts that is crucial, but also knowledge of the law. Knowledge of the law can only be gained through legal research, Prof. Dr. Schill said. He explained that:

• Legal research enables lawyers to develop successful strategies to defend their clients.
• And for the tribunal to produce reasoned awards, that withstand the scrutiny of domestic courts, so that they are enforceable worldwide.
   

He also explained that legal research is a classic legal skill. It enables one to identify the issues, find and apply the right rules, and come to a conclusion. Most importantly, Prof. Dr. Schill explained to the participants that legal research in international arbitration is different from the usual legal research in the domestic context: he sources in international arbitration are broader and more diverse, and currently consist of a combination of domestic and international law.

Mr. Verschoor then introduced Kluwer Arbitration as a legal database which features a collection of online books, publications and journals, as well as other online tools to assist users in efficient research. One of the core attributes of Kluwer Arbitration is its comparative, multijurisdictional publications. This feature allows researchers to find different topics in the same database. Whether one is researching a contract or looking for rules of evidence, decisions on enforcement of arbitral awards, Kluwer Arbitration is ideal for such diverse searches. 

Mr. Verschoor demonstrated how to access resources available through Kluwer Arbitration. He advised participants to keep their research expansive and not rely on one source, mentioning that one of the most important research skills in international arbitration is the ability to know the resources very well. Mr. Verschoor, in response to a question from a participant, confirmed that it was possible with Kluwer Arbitration, to filter the results as deemed necessary. 

After the demonstration of Kluwer Arbitration, Prof. Dr. Schill took further questions from the participants. These questions focused mainly on sources and research tools for use for legal research in international arbitration.

In response to some of these questions, Ms. Wright pointed out that there are very few arbitration-focused tools that are open-access platforms, which makes the tasks more difficult for students in some cases, but she also gave examples of other platforms – including an initiative by a Subcommittee of the IBA Arbitration Committee to collect publicly available non-confidential decisions and awards, which will be published online on an open-access basis.  Mr. Verschoor also mentioned ITALAW as another research tool, but in this case mainly related to investment arbitration. He also highlighted the insights provided by Kluwer Arbitration compared to other research tools. 

In relation to the above, Prof. Dr. Schill made an interesting prediction about the future of awards in international commercial arbitration: that such awards will become public due to the presence of various actors in the arbitration community and the efforts of organizations such as ICCA. 

This portion of the webinar concluded with closing remarks from Matthew Morantz (Young ICCA Co-Chair).

For the second phase of the workshop, participants were invited to complete a practical research exercise designed and prepared by Young ICCA Co-Chairs Maria Athanasiou, Theominique Nottage and Matthew Morantz.  The exercise provided a set of hypothetical research tasks for a new junior associate in relation to an ongoing international commercial arbitration case.  Participants were split into groups of 4-5 persons and given two weeks to complete the research work. Kluwer graciously provided temporary access to its arbitration databases in order to assist with this research.

Over 45 participants completed the exercise, earning certificates of participation.  

After review of all assignments, it was judged that the best assignment was submitted by the group composed of: 

• Anitta Varghese (St Joseph's College of Law, Bangalore, India);
• Beatriz Vitornio (PhD candidate at School of Law of the University of Lisbon, Portugal);
• Harsh Manohar (LLM Candidate at Penn State University, PA, USA); 
• Hristijan Zafirovski (LL.M. candidate in International Law, International Relations and EU Law at Ss. Cyril and Methodius University in Skopje, North Macedonia); and 
• Sanchitta Sridhar (Advocate, Bombay High Court, India).

Thanks to the generosity of Kluwer Arbitration, this group will be awarded a EUR 1500 prize to spend towards arbitration research resources.  Congratulations!