(Disponible uniquement en anglais)
Introduction. Post‑hearing briefs are the parties’ final opportunity to influence how the arbitral tribunal understands the evidence and applies the law. Unlike oral closing submissions delivered at the hearing, post‑hearing briefs allow counsel to reflect on the full record, address the arbitral tribunal’s questions, and organize the evidence with the benefit of hindsight. They also provide an opportunity to confront weaknesses that emerged during the hearing and to explain them in a measured and credible way. Post‑hearing briefs are particularly important in complex cases with extensive factual disputes or competing expert evidence, where the arbitral tribunal may require guidance to navigate the evidentiary record.
The sequencing for the delivery of the post-hearing briefs. The arbitral tribunal will typically determine whether post‑hearing briefs are required, as well as the sequencing, timing, and scope of the submissions. In some cases, simultaneous briefs are preferred to avoid any perceived strategic advantage. In others, sequential briefs may be appropriate. The arbitral tribunal may also impose page limits or prescribe a specific structure. These procedural matters are generally discussed with counsel before the arbitral tribunal issues a procedural order.
The role of in-house counsel when preparing the post-hearing briefs. For in‑house counsel, post‑hearing briefs offer an important opportunity to ensure that the organization’s commercial objectives remain aligned with the legal narrative being advanced by counsel. In-house counsel can help external counsel identify which factual points may have resonated with the arbitral tribunal, which expert issues require further clarification or elaboration, and which arguments should be emphasized or reframed. In‑house counsel also plays a role in verifying the accuracy of factual statements, ensuring that the brief reflects the evidentiary record accurately and that no unintended admissions or strategic inconsistencies are introduced into the brief. The involvement of in-house counsel helps maintain coherence between the organization’s broader interests and the final written advocacy presented to the arbitral tribunal.