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YSIAC Advocacy Workshop Bengaluru

27 April 2019
YSIAC Advocacy Workshop, Bengaluru
By Dhanush. M, Associate, AZB & Partners

On the morning of April 27, 2019, eminent members of the arbitration bar and enthusiasts alike converged to master oral advocacy skills at the YSIAC arbitration workshop organised under the aegis of SIAC in Bengaluru, India. The Workshop was designed to provide a deeper understanding of the nuances involved in arbitration cross-examination proceedings by bringing several experienced arbitration practitioners together. The Workshop material given to the participants consisted of a mock factual scenario and two witness statements on behalf of the Claimant and the Respondent.

The Workshop kicked off with a welcome address by Ms Lim Seok Hui (CEO, SIAC), where she welcomed the audience to the workshop and expressed her special gratitude to the YSIAC Committee members. Many of these members had flown in from different corners of the country and the world to participate in the workshop. Ms Lim highlighted that the fact that 1000 members of the 3288 members of YSIAC were from India was a testament to the important role of India in the growth of SIAC.

Thereafter, Mr. Lomesh Kiran (Partner, Indus Law and a YSIAC Committee member) briefly introduced the factual scenario: the Government of Indonesia had released a tender for developing a nuclear power plant in Indonesia. This was secured by the Royal Istana Constructors Corporation of Indonesia as developers (the Claimant) in April 2015. The tender required the Claimant to complete the plant by March 2017. The Claimant, through a contract, secured the services of Nucleus Energy group of the United Kingdom as contractors (the Respondent) for the construction of the plant. The Plant was completed and commissioned only in August 2017. The Claimant then commenced arbitration proceedings in Singapore with SIAC, claiming damages of 6 million dollars for the delay and rescission of the contract for misrepresentation. The Respondent counterclaimed 5 million dollars.

The underlying contract did not envisage a timetable for the completion of the project. The Claimant alleged that, during the negotiations, the Respondent had assured the Claimant that the plant would be completed in 12 months from January 8, 2016, as the Respondent could divert many of the parts from the power plant projects it had discontinued in Algeria. The parts were currently stored in Texas and as such were already fabricated, and were only required to be shipped and assembled at the site in Indonesia.

The Claimant alleged that the Respondent never had any plant components that were already fabricated and ready to be shipped as of January 8, 2016. The Respondent denied that it had made any representations as to the timeline for completion, and that it had always made clear that any discussion about the timeline was only indicative, because the nuclear plant parts had to be significantly modified or re-fabricated in order to suit the site in Indonesia.

With the abovementioned factual background as the reference point, the workshop provided for a mock cross-examination of factual witnesses by many leading counsel, which was presided over by a three-member Tribunal. The Tribunal was comprised of Mr. Dhyan Chinappa (Senior Advocate, Karnataka High Court), Mr. C.K Nandakumar (Advocate, Law Chambers of C.K Nandakumar) and Mr. Prakash Pillai (Partner, Clyde & Co Clasis Singapore).

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Members of the audience

Speakers during the YSIAC Oral Advocacy Workshop

The first session involved cross-examination by the Respondent's Counsel, played by Mr. Nikhilesh Rao, (Partner, Khaitan & Co) and Ms Sonali Mathur (Partner, AZB &Partners and a YSIAC Committer Member). They questioned the Claimant`s witnesses, played by Ms. Sneha Nagraj (Partner, Frontier Legal) and Mr. Karthikey Mahajan (Associate, Kirkland & Ellis LLP and a YSIAC Committee Member).

The line of questions framed by counsel for the Respondents was intended to elicit response in respect of the following:- (i) whether the claimant was cognisant of the difficult geographical conditions prevailing in Indonesia, making it impossible for the Respondent to complete the plant within the period of one year; (ii) the factual basis of the Claimant’s statement that the Respondent had assured the Claimants of completing the nuclear power plant within twelve months; (iii) whether the Claimant could terminate the contract after the terms of the contract were fulfilled i.e.,the nuclear plant was completed; and (iv) whether the Claimant was cognizant of the labour strike which impeded the Respondent from completing his contract.

The second session involved cross-examination by Claimant`s counsel, played by Mr. Bharat Chugh (Partner Designate, L& L Partners Law Offices and a YSIAC Committee Member) and Mr. Ian de Vaz (Partner, Wong Partnership LLP). They directed their queries to the Respondent`s witnesses, played by Mr Ian Lewis (Advocate, Karnataka High Court) and Mr. Vikas Mahendra (Partner, Keystone Partners).

The line of questioning put forth by the Claimant’s counsel in cross-examination was intended to elicit response in respect of the following:- (i) whether the Respondent had undertaken an assessment of the technical feasibility of the parts of the nuclear reactor which were intended to be moved to Indonesia; (ii) whether there was any correspondence on record by the Respondent that highlighted the need to modify parts of the power plant stored in Texas to suit the local conditions in Indonesia; (iii) whether the power plant was commissioned on the scheduled date; (iii) whether the Respondent had taken steps to verify the technical feasibility of the parts of the power plant stored in Texas; (iv) whether the reasons for delay in completion of the power plant were attributable to the Respondent; and (v) whether there was any correspondence by the Respondent enquiring about the counterclaims, prior to the issuance of the arbitration notice.

Thereafter, the members of the Tribunal held a panel discussion, where they elaborated on the steps involved in conducting a successful cross-examination. Mr. C.K Nanadakumar emphasised the importance of having mastery over the facts of the case as the hallmark of a good cross-examiner.

Mr. Dhyan Chinappa stressed the need to “think through the case” – which would invariably provide new insights on the case at one`s disposal. He also emphasised that it was imperative that cross-examiners create an environment of trust with the witness in order to elicit relevant facts.

Mr. Prakash Pillai emphasised that cross-examination was more about the “don’ts” than the “do’s”. Mr. Pillai that one should refrain from open-ended questions, where the witness can deftly deviate from the questions he is required to answer. Instead, one should endeavour to frame close-ended questions, where the witness is bound to reply with a “Yes” or a “No”. Mr. Pillai concluded the panel discussion by highlighting that one should not over-estimate the importance of cross-examination with regards to the final outcome of the arbitral proceedings as it is only a tool to disprove the case of one's opponent. Arbitrations are won or lost on the strength of one's own case.

The workshop was well received by the Indian legal and business community and attracted more than 50 delegates, comprising practicing lawyers, in-house counsel, students and academics.
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