Peers and clients say:
"A very strong arbitrator with wonderful business acumen"
Antje Baumann is widely considered to be one of Germany’s leading arbitration practitioners and most-in-demand arbitrators. Her clients benefit from the vast experience she has gained as arbitrator in well over 80 cases, many of those being high-profile ones. Antje’s clients praise her as an excellent lawyer and outstanding strategist. Antje is founding partner of BAUMANN Resolving Disputes. Before establishing her own firm, she worked for more than a decade in the dispute resolution department of a “Magic Circle” law firm.
What attracted you to a career in arbitration?
During my legal training, I discovered my passion for dispute resolution: no two cases are alike; each case requires a tailored tactical approach. This is to be combined with the “human factor”: in every dispute, you are dealing with different people with whom you must cope one way or the other. To excel as an arbitration practitioner, you need more than legal know-how. Also, psychological skills, empathy and persuasiveness are required. That is both challenging and rewarding. Those are the reasons why I was always and still am today enthusiastic about working in dispute resolution. To do what I love in an international context is the perfect match for me.
What do clients look for in an effective arbitrator?
An effective arbitrator must not suffer from due process paranoia. Clients turn to arbitration because they want to have their dispute decided. It is the fundamental task of the arbitrator to render an enforceable decision, swiftly and efficiently. Justice delayed is justice denied.
Of course, each arbitrator, particularly the presiding arbitrator, must safeguard the fundamental procedural rights of the parties, i.e. the right to be heard and the principle of equal treatment of the parties. However, those principles do not prevent the tribunal from rendering (procedural) decisions, which aim at helping the parties to focus on the relevant facts and at structuring the decisive legal questions. In my experience as an arbitrator, parties are often grateful for an early case assessment by the arbitral tribunal. This allows the parties to focus on the issues that the tribunal considers relevant and to assess their prospects of success. With that knowledge, the parties have a better chance to evaluate options for a possible settlement. In any case, an early case assessment increases efficiency since the parties can concentrate on the relevant issues instead of submitting unnecessarily long briefs.
Effectiveness comes with experience. An arbitrator, particularly the presiding arbitrator, must know how to organise and run the proceedings. Project management is part of the job. Furthermore, an effective arbitrator needs to possess the necessary soft skills to be applied also within the arbitral tribunal. This point is frequently overlooked. Controversies within the arbitral tribunal impact the efficiencies of the proceedings and often also the outcome of the arbitration. When interviewing a potential arbitrator, clients should also focus on how the candidate is likely to present him - or herself. To sit in a three-member tribunal is team work and requires corresponding social skills. When acting as counsel, I always evaluate whether the candidate will fit into the arbitral team, ensure that the arguments of the appointing party are heard (n.b.: without being partial) and be sufficiently involved in the decision-making process.
What are the advantages and disadvantages of arbitration compared to litigation?
Arbitration has two major advantages: first, the parties appoint the arbitrators and accordingly have the composition of the “judge’s bench” in their own hands. The parties, thus, can ensure that the most suitable arbitrators decide their dispute. Second, the principle of party autonomy, which underlies arbitral proceedings, enables the parties to structure the proceedings according to their very needs, ensuring efficient proceedings and saving time and costs.
Every arbitration is only as good as the arbitrators the parties choose. In case of an unfortunate choice, it can turn out to be a disadvantage that there is only one instance in arbitration proceedings. Furthermore, arbitrations tend to be more expensive than state court proceedings – at least in Germany where the reimbursement of the opponent’s lawyers’ fees is capped in state court proceedings. But by and large the rule is; the more relevant a dispute is for a party, the more a party should consider arbitration.
How has your experience as a member of the German Arbitration Institute (DIS) enhanced your role as a dispute resolution specialist?
The German Arbitration Institute published new rules in 2018 (DIS Rules 2018). In advance, various working groups collected feedback from the users as to what the requirements of modern institutional rules are. Now – four years later – the DIS has initiated a “practice lab” in which, inter alia, the experiences with the DIS Rules 2018 are discussed and potential for improvement is identified. I was involved both in the initial working groups as well as now in the practice labs. Through this involvement, I have gained considerable insight into the practical experiences of users, arbitrators and colleagues.
To what extent should more be done to improve the transparency of arbitration proceedings?
A call for transparency is justified in matters that involve public interests. While public interests are frequently touched upon in investor-state arbitrations, this is rarely the case in commercial disputes – perhaps except for certain anti-trust and IP disputes.
In relation to commercial arbitrations, the principle of party autonomy – one of commercial arbitration’s most important features – commands to leave the decision regarding transparency to the parties. The dispute belongs to the parties, not to the public or the press. Thus, it is for the parties to decide if and to what extent they want the public to know about the proceedings and the content thereof. I am reluctant to deprive the parties of this advantage. This comes, however, at a price. In Germany, for example, one hardly finds any case-law regarding post M&A disputes since these are usually decided by arbitral tribunals and, therefore, not published.
The situation is somewhat different when it comes to investor-state arbitrations. Here, the public has a right to know what the public entity has done or is accused of. In that regard, much has been done in the past years to enhance transparency. For example, in 2014, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration were published.
What role do you see third-party funding playing in arbitration moving forward?
Internationally, I believe that third-party funding will play an important role in high-value proceedings, be it investor-state or commercial arbitrations. In the last decade, we experienced a considerable growth in the number of investor-state arbitrations. This development will continue. Also, commercial arbitrations tend to become more complex and the average amount in dispute increases. Both fields are therefore lucrative for third-party funders.
From the German perspective, third-party funding still has a way to go. In the past years, many new funders entered the German market. Currently, the funders, however, seem to focus more on mass proceedings before state courts. A reason could be that some funders still lack the necessary know-how or that - in Germany - parties to high-volume disputes prefer to finance arbitrations themselves.
Why did you decide to set up your own firm?
Conflicts of interest are the arbitrator’s worst nightmare. Therefore, some colleagues decide at a certain point of their career to give up their legal practice and to work exclusively as an independent arbitrator. When I founded my own boutique law firm, I felt still “too young” to solely focus on my work as an arbitrator. I take great pleasure in going into battle as party representative for my clients. I did not want to have to choose between the two roles. My law firm now allows me to have the best of both worlds: I am (relatively) free with regard to conflicts of interest. And I can still help my clients to enforce their rights before arbitral tribunals or state courts.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
In the last two years, we have all experienced changes we never imagined before – be it a pandemic or a war in our close neighbourhood. With that in mind, I notice even more often than before how extremely privileged I am in life. When it comes to my law firm, I would be grateful if clients continue to trust in our expertise and professionalism and thus entrust us with challenging cases.