Lars Markert is a partner in the international dispute resolution group of Nishimura & Asahi’s Tokyo office. Lars has been involved in numerous international commercial and investment arbitrations as counsel and arbitrator under the arbitration rules of the world’s leading institutions as well as in ad hoc arbitrations under the UNCITRAL Rules. He is listed as an arbitrator on the panels of various arbitral institutions and regularly speaks and writes on current issues in commercial and investment arbitration.

What qualities make for a successful arbitrator?

Thorough knowledge of the pleaded case, a good understanding of the applicable law, procedural prowess and even-handedness are the starting points. Ideally, these are paired with experience, commercial sense and sensitivity for the parties’ often different cultural, business and legal approaches. Managing the proceedings efficiently and rendering awards expeditiously should ensure continued success. The ability to handle technology and awareness of cybersecurity issues are indispensable.

In your experience, what advantages can clients benefit from in hiring a multilingual arbitrator?

Multilingual arbitrators will usually be sensitive to and aware of cultural and linguistic differences, and will likely approach issues with an open mind and a willingness to provide parties an equal opportunity to present their case. This is particularly important in my region, where Asian clients are often conducting arbitrations in English. Considering that Asian languages tend to be quite different from “Western” languages, e.g., in terms of grammatical structure, levels of formality and nuance, this may require specific precautions, such as consecutive, rather than simultaneous, interpretation or tweaks to the translation requirements – something which arbitrators from Western jurisdictions are not always sufficiently aware of.

To what extent should more be done to improve the transparency of arbitration proceedings?

The confidentiality of arbitral proceedings remains an important reason why commercial parties choose to arbitrate in the first place. To the extent increased transparency does not infringe on this choice, it should be welcomed. In particular, the enhanced institutional and procedural transparency pursued by leading arbitral institutions such as the ICC enhances the efficiency and legitimacy of the arbitral process. In investment arbitrations which involve public interests, transparency of proceedings is understandably much more common and accepted – although, remarkably, not always appreciated by states once they are actually involved in a dispute.

What role do you see third-party funding playing in arbitration moving forward?

I see it play an increasing role in big-ticket arbitrations, in which funding can be attractive for the funders and parties alike. Investment arbitration is certainly an area where there will be further growth. However, there are many commercial arbitrations at less high amounts in dispute which likely will continue to be run without any funding. Unfortunately, the legal situation in Japan is still not sufficiently clear. Since funding is not expressly allowed, many Japanese lawyers shy away from funding – although recently certain work-arounds have been deployed successfully.

How has the relationship between arbitrators and parties developed over your career? How might this affect tribunals?

Arbitrators seem to be increasingly aware that parties have become willing to consider challenging awards and arbitrators, which in some corners has led to a so-called “due process paranoia” among arbitrators. Also, depending on the geographic region, there seems to be a generational change from the “grand old (white) men” to a younger, more service-oriented, efficiency-driven, and diversified bar of arbitrators. I of course cannot exclude that some of the changes I perceive are just a reflection of my own development in the arbitration market.

What makes Nishimura & Asahi stand out from its competitors in the market?

A key distinguishing feature of Nishimura & Asahi amongst its Japanese competitors is its early focus on developing a dedicated international arbitration practice. Since 2018, it has been annually included in the Global Arbitration Review’s GAR 100 – as Japan’s first and for a long time only law firm. Notably, the firm has been carefully building a truly international team, seeing constant collaboration between Japanese, German, English, American and Australian qualified lawyers. This allows us to compete – as well as to collaborate as co-counsel – with international firms in the Japanese market. The next step will be to assist our other Asian offices in pursuing a similar path and to establish Nishimura & Asahi as a truly pan-Asian arbitration firm.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?

While I am happy with my career trajectory so far, there is still a lot to accomplish. We can further internationalise our team and our roster of cases, and build out our ISDS practice. While our Singapore office already has a strong disputes offering, particularly in the construction sphere, there is still more potential for our Thai and Vietnamese offices that I hope to help develop. Finally, I enjoy sitting as an arbitrator and look forward to further expand my experience, particularly in cases in the Asia region.