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Alexis Mourre is an independent arbitrator and founding partner of Mourre Gutiérrez Chessa Arbitration. He has been the president of the ICC International Court of Arbitration from 1 July 2015 to 30 June 2021. He was vice-president of the Court (2009 to 2015), vice-president of the ICC Institute of World Business Law (2011 to 2015), co-chair of the IBA Arbitration Committee (2012-2013), LCIA court member (2012-2015), and council member of the Milan International Chamber of Arbitration (2006-2014). Alexis has served in more than 270 international arbitrations, both ad hoc and before most international arbitral institutions. He is fluent in French, English, Italian and Spanish, and has a working knowledge of Portuguese.
Name one of your most memorable cases.
I would mention my very first investment case, in which I was acting as president appointed by the ICC. The investor had been involved in a long-running dispute before domestic courts, all the way to the Supreme Court, and was complaining of multiple breaches of due process as well as a lack of independence and impartiality of the local judges. We reviewed the entirety of the judicial record and ended up rejecting the allegations. I found it fascinating to scrutinise the decisions made by the local judiciary at its highest level from the perspective of international law.
How has the relationship between arbitrators and parties developed over your career? How might this affect tribunals?
I would say essentially in two ways. On the one hand, there is now much more awareness of the importance of ethics and transparency in arbitration. For example, it is now unthinkable for an arbitrator to entertain ex parte contacts with counsel in the course of the arbitration about the case, which perhaps was not always the case 20 years ago. The culture of conflicts disclosures has also significantly advanced, with much more willingness to disclose conflicts, even beyond what is required by the IBA guidelines. Institutions like the ICC have taken the lead in encouraging more transparency in the disclosures of conflicts, and the change in the past 10 years has really been noticeable. On the other hand, we have certainly witnessed, in the past 20 or 25 years, an increase of the adversarial-ness of proceedings, with more incidents, more objections, and perhaps less cooperation between the parties. In that context, robust institutions and sound regulation is needed more than ever.
How does your work as an author and lecturer on international commercial and investment arbitration enhance your practice?
Writing and teaching is a highly necessary opportunity to step back from the daily work on cases and reflect in a different manner on theory and general principles, including of a philosophical nature. The confrontation with students also allows us to confront our ideas, and our at times deeply-entrenched conceptions, with the refreshing perspective of excellent and often passionate young people, which is invaluable. I always teach at Sciences Po and Paris II with immense pleasure.
Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree?
Establishing a proper standard for the full disclosure of conflicts by arbitrators is perhaps the most important question faced by the arbitration community at present. As shown by the recent Supreme Court decision in Halliburton, there are still divergent conceptions as to what that standard should be. Halliburton adopts an objective standard in the eyes of a fair-minded and informed observer, which is arguably also the Model-law standard, while the IBA guidelines and the ICC rules adopt a subjective standard “in the eyes of the parties”. The subjective standard, because it prevents the arbitrator from casting his own objective judgment on what should be disclosed, is more demanding than the objective standard and is therefore more in line with the users’ legitimate expectation that any circumstance which may be problematic from their perspective be disclosed. I therefore believe that the subjective standard should be generally adopted. The fact that the ICSID-UNCITRAL draft code of ethics has embraced the subjective standard for disclosures is from that perspective very encouraging. It is to be hoped that once the code is adopted, the UNICTRAL rules will be amended accordingly.
How do you anticipate your arbitration practice to develop over the next two years?
I am blessed to be surrounded in my new firm MGC Arbitration by a group of outstanding and enthusiastic practitioners. I look forward to the growth of the firm and to continuing my arbitrator practice.
How is increased scrutiny towards social and environmental welfare affecting investment-treaty arbitrations?
We are living a deepening climate and environmental crisis which arbitration, and investment arbitration in particular, cannot afford to ignore. The growing importance of the environmental obligations bearing on investors, as well as all the aspects of the profound changes that the energy market is undergoing, both for oil, gas and electricity, will of course have significant consequences on the investment protection landscape.
How are AI and technological developments affecting the analyses you conduct? How do you anticipate it will affect analyses moving forward?
Technology facilitates the arbitrator’s work in multiple ways. The use of electronic submissions, of hyperlinks, of joint electronic bundles, as well as the use of interactive damages models allowing the tribunal to adjust input variables, has already completely changed the way in which we interact with the parties, the experts, and prepare our awards. There is now much more ability to work remotely from any place in the world, thus allowing us to advance the preparation of an award in a much quicker and more dynamic manner. The use of virtual site visits, including by using drones, will become more and more frequent. And technology is also allowing the disclosure of large quantities of electronic data without excessively burdening the work of the tribunal or delaying the process.
To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?
Most reputable seats admit that the arbitration can be conducted in all or part virtually, so I do not expect it to change the parties’ decision in that respect. It is however good practice to include in the terms of reference or terms of appointment that the tribunal has the power to hold any hearing remotely, even in absence of an agreement by all parties.