Quinn Emanuel Urquhart & Sullivan LLP
6 rue Lamennais
75008, Paris, France
Isabelle Michou is deemed “an excellent practitioner” whose expertise in international arbitrations makes her “wonderful to work with” on cases.
What first inspired you to pursue a legal career in arbitration?
What first inspired me to pursue a career in this field was the ability to work as counsel in an international environment, involving a high dose of comparative and international law, and the possibility of doing advocacy in international proceedings. Advocacy in international arbitration covers all aspects of a dispute, from finding the best case strategy for the client, establishing the facts, the law, but also finding the best procedural strategy which may not be limited to just one set of proceedings, but may involve several proceedings in parallel, requiring you as counsel to have the big picture as well as an in-depth knowledge of every detail of the dispute, to the oral argument at a hearing and the examination of witnesses and experts. Being part of such an international bar is what I find, still today, the most exciting part of a career in arbitration.
What qualities make for a successful international arbitrator?
What makes an arbitrator successful is a combination of several qualities. First and foremost, an arbitrator must be a lawyer. In my experience, a non-lawyer makes a very bad arbitrator, not least because he or she is unable to resolve a dispute in law. But it’s not enough to be a lawyer, he or she must be a good one with an ability to understand the facts and as may be appropriate the relevant industry sector and apply the applicable law to the facts. Second, an arbitrator must have sufficient international arbitration experience. An arbitrator who has no clue as to arbitral practices and ethics is generally a bad arbitrator. Third, an arbitrator must also know how to handle procedural matters and have a minimum level of general organisation and competency as to the conduct of an arbitration. An arbitrator must always pay attention to the details and should also always remain measured in the tone he or she employs towards the parties and clearly avoid any tone that lends itself to a perception of bias. Fourth, an arbitrator must be prepared before each hearing, whether procedural or evidentiary. Fifth, an arbitrator should draft his or her award in a clear and structured way. Last but not least, in a system that is based on party-appointment, an arbitrator needs to be connected to the international community. If nobody knows that you are a good arbitrator, it is difficult to get further arbitral appointments.
Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree?
Independence (and impartiality) of an arbitrator is one of the overarching principles that underly the integrity and legitimacy of international arbitration. There are still arbitrators (albeit rare fortunately) who do not understand what it means and have no clue about arbitral practices and ethics. Disclosure goes to what an arbitrator should disclose to the parties. In doubt, an arbitrator should rather disclose than not. Once a circumstance is disclosed, it is then for the parties to decide what to do with the arbitrator’s disclosure. However, the mere failure to disclose is not as such a ground of lack of independence (except in rare cases). There is always a requirement on the party alleging lack of independence to establish that there is, in the eyes of the parties, a lack of independence or justifiable doubts as to the independence of the arbitrator. I don’t think the standards of independence and disclosure are opaque and restrictive, but they are overlapping and often rooted in multiple legal sources (national arbitral law, arbitration rules, soft law such as the IBA guidelines and even practice notes of arbitral institutions). In addition, arbitral institutions and national courts are not always consistent in their practice or case law. This does not help with clarity in an area where the rules should be clear and applied in a consistent way.
To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?
A point of clarification first. Whether the hearing takes place virtually or in person has no bearing on the seat of arbitration. The arbitration will still be governed by the law of the seat. By contrast, the question of where the arbitrator is based is different. The fact that hearings are virtual may influence the choice of an arbitrator as they do not involve any travel or hotel costs. They can be organised regardless of where the arbitrator is based. The pandemic has shown that lawyers (and thus arbitrators) can remain very effective in international arbitration while barely having human contact beyond the faces they see on a computer screen. However, there are some limits. One is time zones. Working from different time zones can prove challenging, if not ineffective. Two, it would be a mistake to expect that all hearings on a case will necessarily be virtual. Unless the parties have agreed in advance in their arbitration clause or at the initiation of a case that all hearings will be virtual (which is not advisable), virtual hearings are only a possibility, they are not mandatory. An arbitral tribunal will decide it on a case-by-case basis depending on the specific circumstances and in consultation with the parties. Three, evidentiary hearings for the examination of witnesses and experts, in particular if they last for more than two days, are often more effective in person. Parties are advised not to rule out this possibility permanently on any case.
How does guest lecturing enhance your practice?
Delivering a guest lecture is a great opportunity to pause and reflect on a discrete legal point or a point of arbitral practice, aside from the day-to-day work on cases, and present the main takeaways or lessons learnt in a more scientific way based on personal and first-hand real experience. It is a rewarding way of enhancing one’s own practice.