Civil Advocacy 2 e

Written Advocacy, 2nd Edition

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The issue is always whether such restriction extends to arbitral proceedings or remains confined to judicial proceedings. Subject to the pertinent legislative text and the clarity of including specific references to arbitration or arbitral tribunals as is the case of Article 3 of the Egyptian Legal Profession Advocacy Law, which influenced other Arab legislation, subsequent legislation governing arbitration in Arab countries would normally dispense with such restriction, thus allowing foreign counsel and non-lawyers to appear and represent parties.

Contrary to the Egyptian Legal Profession Advocacy Law, the equivalent laws of Lebanon, [14] Libya, [15] Iraq [16] and Syria [17] do not specifically reserve the right of representation of a party before arbitral tribunal to national lawyers. These laws refer to courts with no express reference to arbitration.

However, as is the case of the Egyptian Legal Profession Advocacy Law, the Qatari Legal Profession Advocacy Law, [18] reserves the right to represent parties before arbitral tribunals to lawyers. It considers that appearing before arbitral tribunals and rendering legal opinions are among the exclusive legal services reserved to lawyers.

Nevertheless, the Qatari Arbitration Law No. This means that such lex specialis governing arbitral proceedings, and also enacted 11 years after the Qatari Legal Profession Advocacy Law , prevails and overrides the general law governing the legal profession at large. Thus, parties are advised to conduct the necessary due diligence on the applicable norms and practices at the seat of arbitration prior to agreeing the seat.

It is worth noting that the rules of many arbitral institutions permit the appointment of counsel of choice whether foreign, non-lawyer or otherwise , irrespective of the seat of arbitration. Thus, the perceived scepticism towards the participation of foreign counsel or non-lawyers in arbitration throughout Arab jurisdictions is increasingly diminished or even disappearing owing to the enactment of arbitration-specific laws and to the liberal approach adopted by courts, where the traditional protectionist view of the seat is now becoming obsolete and outdated.

Absent such liberalisation, the pertinent jurisdiction risks being alienated and excluded in an era of competition among jurisdictions aiming to reposition themselves as leading seats of international arbitration. Insisting on applying restrictive and obsolete national rules on party representation will likely result in relocating complex arbitrations from the protectionist jurisdiction to an arbitration-friendly jurisdiction. As mentioned above, counsel in Arab jurisdictions are bound by certain ethical and professional obligations and this is all the more pertinent in the context of international arbitration.

There are various ways in which counsel can unnecessarily aggravate the dispute and adversely impact the position of the party he or she represents. These include:. In international arbitrations seated in the Arab world or involving Arab parties or counsel, it is not anomalous for counsel to employ one or more of the above dispute-aggravating attitudes or demonstrate a lack of appreciation for arbitration-specific procedures.

Guerrilla tactics are not alien to Arab arbitrations, [32] and they present a threat to the efficient and proper conduct of the arbitration proceedings. They put the arbitrators in a predicament not only because the behaviour is difficult to detect but because it is even more difficult to combat.

However, these tactics may not disrupt arbitration proceedings, if they are, upon identification, dealt with properly and effectively and without fear of challenge or threat to the final award. Accordingly, if courts and arbitral institutions offer the needed support to tackle these tactics they will not constitute a problem.

Guerrilla tactics can take many forms, ranging from mild to extreme. These include the following. Bribery occurs when a party offers, promises or grants an undue advantage to an arbitrator or a third person in order to influence the arbitral proceeding. Obviously, all Arab laws outlaw bribery in all forms and so this tactic is tantamount to criminal conduct sanctioned by law.

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This would be carried out so that arbitrators, experts or witnesses would be reluctant to be part of the arbitral proceedings. This has a significant negative impact on the proper and efficient conduct of the arbitration proceedings and there are extreme examples from Arab jurisdictions, where arbitrators, witnesses and experts were improperly sued and subjected to unwarranted criminal complaints as a scare tactic by counsel to derail the arbitration proceedings.

It is, however, hoped that courts will not support guerrilla tactics and will not treat any such engineered challenges as grounds for removal of impartial and independent arbitrators from cases. It is also hoped that courts in the Arab world will hold such abusive parties and counsel accountable for all legal costs and damages resulting from any such abusive tactics.

This could happen where some Arab laws provide for the possibility that 1 counsel may apply ex parte to the competent judge to terminate pending arbitral proceedings on account of exceeding the time limits under the lex loci arbitri; [35] or 2 counsel may file a criminal action may lead to suspension of the arbitral proceedings. These methods are increasingly posing serious risks to the integrity of arbitral proceedings, where certain parties or counsel, acting unethically, can utilise such methods to attempt to gain an illicit tactical advantage over their counterparts.

In all Arab jurisdictions such illicit activities may constitute criminal activities, but the issue is always whether information or documents illicitly obtained could be produced and relied upon in proceedings. While views may differ in this respect, it remains doubtful that parties and counsel who engage in such illicit activities can be permitted to benefit from their own wrongdoing and courts and tribunals should take a firm stance to disallow any reliance on information or documents illicitly obtained or produced in breach of confidentiality or as a result of hacking and surveillance.

Given the absence of a general duty of disclosure of evidence and discovery, certain counsel in Arab arbitrations may not consider the concealment or destruction of evidence as illicit conduct, which raises serious concerns regarding the applicable legal standards pertinent to production of evidence and non-concealment of material facts. However, the production or submission of unauthentic or forged documents remains unacceptable behaviour in breach of the basic principles of ethics and professional obligations.

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Also, if counsel knowingly engages in the submission of such forged documents, this would be tantamount to a criminal act that is sanctioned under all Arab laws. These range from refusal to proceed with the arbitration proceedings notwithstanding a clear contractual obligation to do so, to repeated challenges against arbitrators, to intentional delay of submissions, last-minute postponement of filings, hearings, submission of excessive amount of documents, ignoring orders of arbitral tribunals, filing frivolous procedural requests or requesting unwarranted post-hearing submissions with the sole aim of derailing and delaying arbitration.

Again, Arab arbitrations or proceedings involving Arab parties or counsel are not immune to such guerrilla tactics and it is not uncommon to witness one or more forms of these tactics, which institutions, tribunals and courts are supposed to combat. Combating such devious tactics can take place in three phases. The first phase prior to the arbitration proceedings , takes place through 1 proper drafting of the arbitration agreement; 2 proper choice of counsel and arbitrators; and 3 choosing institutional arbitration over ad hoc proceedings, with due consideration to international institutions that provide adequate tools and rules that safeguard the integrity of the proceedings and combat counsel misconduct.

The second phase throughout the arbitration proceedings , is through 1 observing and referencing the applicable ethical code of conduct in the first procedural order; 2 providing a strict and detailed procedural timetable; 3 disambiguating counsel obligations and agreeing a workable style of advocacy; 4 detailing the appearance of witnesses and experts; 5 outlining the principles governing production and admissibility of evidence; 6 setting out the principles of good faith cooperation between counsel and the arbitral tribunal; 7 seeking interim relief from arbitral tribunals or national courts to preserve evidence or thwart devious tactics if the conditions for interim relief are satisfied; 8 seeking orders reprimanding counsel and notifying Bar associations of counsel misconduct; and 9 seeking damages and cost awards sanctioning misconduct by the party and its counsel.

The third phase post-award proceedings , is through 1 challenging awards procured by guerrilla tactics; and 2 careful and supportive court review by protecting arbitrators and safeguarding awards when abusive counsel seeks to engage guerrilla tactics to vacate awards under the guise of alleged breach of due process and public policy, especially since the Arab world suffers from a preoccupation with due process and public policy paranoia. The Arab world is primarily composed of civil law jurisdictions, with influence from Islamic law traditions.

At the outset, it is worth noting that it is quite uncommon for Arab counsel to exclusively specialise in and prosecute arbitral proceedings. Thus, litigation, corporate and general counsel may take on board mandates to prosecute arbitral proceedings, which undoubtedly impact time, costs and tactics, where certain Arab counsel may attempt to challenge basic principles of international arbitration and question established practices. This is a fundamental feature of Arab arbitrations that is currently changing owing to the rise of a new generation of arbitration-specific practitioners that are well versed in the art, principles and practices of international arbitration.

Also, the failure of a party to comply with the production order issued by the tribunal may expose that party to the risk of drawing negative inferences. These practical specificities of Arab arbitrations are motivated by the cultural nuances prevailing in the Arab world. This is not uncommon, since arbitral tribunals ought to be open to cultural specificities and implications insofar as such cultural specificities impact the arbitral process and its applicable norms.

Further, contrary to common law systems and common law-trained practitioners, Arab civil law practitioners are generally not well-versed in the art of cross-examination of witnesses and experts, even though cross-examination could be a very useful tool to test the evidence on record and extract the truth or at least the plausible truth from oral testimony. By and large, this specific Arab culture impacts advocacy in Arab-related arbitrations and arbitral tribunals should be culturally aware that the norms, practices, methods and skills of Arab advocacy are distinguished from their Western counterparts.

This may, unfortunately, create a disequilibrium and incompatibility within the same proceeding and arbitral tribunals would then be required to set certain overarching principles of procedure and advocacy to restore the needed procedural balance to properly and efficiently manage the proceedings in due consideration of any legal and cultural specificities. Requests for production of documents are exceptional and subject to legislative constraints that are normally enshrined in Arab codes of evidence. While there are similarities between Arab countries due to their common language, religion and regional and socio-cultural identity, differences can be observed in their legal and cultural traditions and practices.

On the specific issue of evidence, the Egyptian Code of Civil and Commercial Procedures [43] and the Egyptian Code of Evidence [44] contain detailed rules on procedures for document production and the value of documentary evidence. Specifically, Articles 20—27 of the Egyptian Code of Evidence lay down in detail the framework and conditions for ordering document production. However, documentary evidence is not the only form of evidence recognised under Arab laws and according to which counsel advocacy is defined and confined.

Witness testimony, expert opinions, site inspections and oath are among the other forms of admissible evidence, depending on the circumstances of each case. Nevertheless, as stated above, the practice of Arab advocacy in arbitration is primarily premised on written submissions and documentary evidence. However, this culture of written advocacy would be more effective if counsel avoid:. Claims and arguments are clear, precise and supported by factual evidence and legal authorities, noting that no legally binding system of precedents or stare decisis exists under Arab laws.

Briefly, on the specific issue of the application of the governing law, Arab jurisdictions and Arab advocacy usually give due weight to applicable law issues and expect tribunals to uphold and apply the law, to the extent that some jurisdictions consider the exclusion but not simply wrongful application of the applicable law by the tribunal as a separate and express ground to set aside and vacate the arbitral award. However, it is necessary to avoid surprising the parties with an outcome that they had not contemplated prior to the award.

It is on this basis that courts in the Arab world have afforded arbitral tribunals broad powers to ascertain and apply the law. That said, the Egyptian Court of Cassation also held that tribunals have the right to re-characterise the contract, [48] and to determine the proper branch of law governing the dispute. Thus, it is submitted that certain defining principles can help disambiguate the rights and obligations of the arbitral tribunal with respect to the applicable law. These guiding principles include:.

Accordingly, arbitral tribunals sitting in an Arab jurisdiction or applying Arab laws and before whom Arab counsel is appearing need to familiarise themselves with the procedural and cultural specificities of dealing with applicable law issues. Such arbitral tribunals are encouraged to raise those issues and discuss the procedural treatment of the applicable law with counsel early on in the case. Advocacy as an art of pleading and persuasion has spawned its own techniques and features in the context of arbitral proceedings. Among the distinguishing features of advocacy in arbitration is that it offers a myriad of opportunities to showcase the diverse cultural approaches to advocacy and the specificities of advocacy techniques in different legal systems.

It also aims to afford Arab counsel, foreign counsel and arbitrators an opportunity to consider, reflect and assess the intricacies and culture of pleading cases involving Arab parties or counsel. It is indeed true that the arbitration system favours procedural flexibility and a mixed system of common and civil law traditions is created to achieve a variable degree of harmonisation.

As evident from this article, the overarching principles of Arab advocacy are not alien to those principles prevailing in the most prominent Western jurisdictions, but it is the actual practices that count.

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It is in this respect that Arab legal practitioners need to do a lot more to counter the negative practices that have tarred the noble, proper and correct practices that ought to prevail in arbitration. Arab national Bar councils and the Arab legal profession as a whole must pool their efforts to push for updating the outdated statutory instruments and move towards setting distinctive common standards that apply to international arbitration and distinguish those from the standards and practices that govern local litigation. The traditional wrongful perception by some Arab counsel, alien to international arbitration but versed in local court litigation, that guerrilla tactics and disruptive procedural strategies are the mark of talent must change, and it is both hoped and expected that the rise of a new generation of specialised international arbitration practitioners will positively contribute to aligning Arab arbitrations with best practices prevailing across the globe.

Arab counsel are not devoid of talent and can indeed contribute positively and forcefully to the edifice of international arbitration advocacy. Given that international arbitration has spawned its own culture and distinctive practices, it is high time for Arab advocacy to contribute to the shaping of the new global ethical and professional standards of advocacy. The nature of arbitration itself as a mechanism for resolving disputes of a complex nature with multiple parties of different nationalities and different backgrounds necessitates that all players in the field, notably counsel, equip themselves with the knowledge, skills, techniques and tools necessary to efficiently and properly conduct international arbitral proceedings.

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Given the long-standing existence of advocacy as a profession in the Arab world, the legal profession has created its own culturally oriented practices and specificities that have brought about certain challenges and prospects, which define the practice of advocacy in the region and so impact the manner in which arbitral proceedings are conducted in Arab jurisdictions. While this article does not aim not to provide a complete account of the practice of advocacy in Arab jurisdictions, it specifically purports to offer a high-level overview of certain specificities of advocacy in international arbitrations hosted in Arab jurisdictions or involving Arab counsel.

Among those specificities are: 1 party representation and the ability of foreign counsel to represent parties in Arab-related arbitrations; 2 counsel ethics; 3 guerrilla tactics that pose a threat to the efficient and proper conduct of the arbitration proceedings; 4 cultural aspects and practices that impact Arab-related arbitrations; and 5 issues of evidence and law. The article also sheds light on the various ways in which Arab counsel can unnecessarily aggravate the dispute and adversely impact the position of the party it represents before arbitral tribunals.

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With the progressive development of a fine international arbitration market in the Arab world and the rise of a talented generation of specialised Arab international arbitration practitioners, it is hoped that unacceptable and obsolete practices will be swept away and the deep-rooted traditions of smart, ethical and professional advocacy revived and showcased.

The broad equivalent in many English law —based jurisdictions could be a barrister or a solicitor. Sir Alberico Gentili ". In England and Wales , advocates and proctors practised civil law in the Admiralty Courts and also, but in England only, in the ecclesiastical courts of the Church of England , in a similar way to barristers , attorneys and solicitors in the common law and equity courts.

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Advocates, who formed the senior branch of the legal profession in their field, were Doctors of Law of the Oxford , Cambridge , or Dublin and Fellows of the Society of Doctors' Commons. Advocates lost their exclusive rights of audience in probate and divorce cases when the Crown took these matters over from the church in , and in Admiralty cases in The Society of Advocates was never formally wound up, but its building was sold off in and the last advocate died in Barristers were admitted to the Court of Arches of the Church of England in More recently, Solicitor Advocates have also been allowed to play this role.

Advocates are the only lawyers with rights of audience in the courts of the Isle of Man. An advocate's role is to give advice on all matters of law: it may involve representing a client in the civil and criminal courts or advising a client on matters such as matrimonial and family law, trusts and estates, regulatory matters, property transactions and commercial and business law. In court, advocates wear a horsehair wig, stiff collar, bands and a gown in the same way as barristers do elsewhere.

To become an advocate, it is normally necessary to hold either a qualifying law degree with no less than lower second class honours, or else a degree in another subject with no less than lower second class honours complemented by the Common Professional Examination. It is then necessary to obtain a legal professional qualification such as the Bar Professional Training Course or the Legal Practice Course. It is not, however, necessary actually to be admitted as an English barrister or solicitor to train as an advocate.

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