Clifford J. Hendel
C/Barceló, 15 - 5 izq
28004 , Madrid, Spain
For the first decade of his career, Clifford J. Hendel was a transactional lawyer in the New York and Paris offices of a leading global firm. Later, as partner for two decades of a Spanish boutique, the focus of his practice evolved towards international dispute resolution. Having established HENDEL IDR in 2018, he currently acts only as neutral. He is admitted to practice in New York, England and Wales (non-practicing), Paris (non-practicing) and Madrid.
What attracted you to a career in arbitration?
My transition from a transaction-oriented practice to one focussed on disputes (principally international arbitration) was largely accidental. My first, and surprisingly pleasant and successful, significant experience as counsel in an international arbitration led in very short order to my being appointed as arbitrator by the institution (ICC). As time passed, I received more and more mandates to act as counsel and, especially, as arbitrator under a variety of institutions, developing expertise in all types of commercial arbitration as well as in the more specialised world of sports-related disputes. In time, I came to realise that my multi-jurisdictional transactional background provided a good skill set to work effectively in the area of international arbitration, especially as neutral. Viewed from another perspective, the transition brought me “full circle”: before commencing my career as a transactional lawyer, I had worked for two years as a law clerk to a federal district (trial) judge in the US courts, where resolving disputes fairly and efficiently was, of course, the principal mission.
What qualities make for a successful arbitrator?
Diligence, open-mindedness and equanimity are key qualities for a successful arbitrator: diligence because parties expect and are entitled to an arbitrator who has read, heard and understood their position and their arguments; open-mindedness because the facts and the law can sometimes take you to places that might have seemed unlikely at the outset of the matter; equanimity because it is essential in a consent-based system like arbitration that the parties not only have been heard, but feel that they have been heard.
Given your expertise in sports-related disputes, how has the coronavirus pandemic impacted the types of cases you are seeing?
My sports-related practice today involves principally service as deputy chair of the Disputes Resolution Chamber of FIFA’s Football Arbitral Tribunal (DRC) and as one of eight arbitrators of FIBA’s Basketball Arbitral Tribunal (BAT). The caseload in both institutions, principally involving labor-contract disputes between players and clubs, has experienced a certain uptick as a consequence of the pandemic. However, both institutions issued guidelines encouraging negotiated and collective action, and these guidelines have been helpful in structuring responses in individual cases and in avoiding what might otherwise have been a debilitating avalanche of cases.
In your experience, what advantages can clients benefit from in hiring a multilingual arbitrator?
Aside from the obvious benefits where some documents or testimony in a particular case may be in a language other than that of the arbitration, a multilingual arbitrator is often a multicultural arbitrator. Parties tend to feel more comfortable with an arbitrator who “understands” them and their legal/commercial/general culture. In this regard, multilingualism can often be a proxy for multiculturalism, the latter probably being of more interest to the user than the former. In my case, a form of legal multiculturalism that could be called “multiqualificationism” has probably played to my benefit as well, as the twists and turns of my own career have ended up with me having become admitted to practice in a number of relevant jurisdictions.
What role do you see third-party funding playing in arbitration moving forward?
TPF already plays a significant role in arbitration. As it becomes more and more accepted and clients and lawyers become more and more familiar with the concept, this trend should only increase.
How has your membership of the Chartered Institute of Arbitrators enhanced your dispute resolution practice?
For me, being a fellow of CIArb has been a valuable source of global contacts in the field, particularly in certain regions where my own relations and contacts are limited.
Why did you decide to set up your own firm?
Like many others in a similar situation, my decision to set up my own firm was based on two key realisations: first, that my practice (and preferences) had veered so much towards acting as a neutral that being part of a firm offered little if any advantages, and certainly none large enough to outweigh the ever-present risk of conflicts; and second, that while in my firm it was becoming time to pass the baton to a younger generation, as an arbitrator, I might have no “retirement age”(and no baton to pass).
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
I have hoped to develop an active practice in mediation and dispute avoidance, and in general raise the profile of ADR and non-contentious modes of dispute resolution in the region where I live and practice, but to date have not accomplished much in this regard. This is a long-term project, though, it is important to be patient and not unduly frustrated by the slow pace of incorporation in this region of practices which have taken strong root in other regions, particularly in the “Anglo-Saxon” jurisdictions.