Markus is a partner and co-head of dispute resolution of bpv Hügel Rechtsanwälte in Vienna. He is a specialist in international and domestic arbitration and contentious proceedings before the national courts. He regularly represents clients before international tribunals, among others under the ICC, UNCITRAL, VIAC and DIS Rules. His focus is on disputes regarding technology, plant engineering, construction, energy related matters, joint-ventures, corporations and private foundations, post-M&A and European competition law. He regularily sits as arbitrator.

What qualities make for a successful arbitrator?

In my opinion, these are above all others high ethical standards, diligence, management skills, experience, decisiveness, an open mind-set and keeping a cool head. Of these qualities, I think diligence is the most underrated. But to decide a case well requires perseverance and the will to look at the details. When someone is described as a big picture guy, that’s a warning. Most of the time, it means that someone does not take a good look at the case. All the other mentioned qualities can’t make up for that. I would also like to single out management skills, which are often underrated. Arbitration is a project. To carry it out efficiently, you need an arbitrator with management skills. By contrast, experience is often overrated. Sure, it’s an asset, but you can make up for it by working particularly thoroughly.

In your experience, what are the benefits to clients of hiring an attorney with experience as an arbitrator?

Hiring an attorney who also serves as an arbitrator offers – in my opinion – at least three major advantages. First, this attorney understands how the decision-making process works in an arbitral tribunal and can take that into account as well as communicate it to the client. Second, one develops the ability to write the written submissions in a way that can be best utilized by the arbitrator in drafting the arbitral award. This also applies to litigation. Third, it is probably easier to recognize during a hearing what works and what does not work with the arbitral tribunal.

How has arbitration changed since you first started practising?

The most obvious difference is the increase in diversity among arbitrators and lawyers, particularly the growing participation of women in leading roles and the generally more diverse backgrounds of arbitrators. However, these changes - while very fast by historical standards – can feel glacial on a personal level. Considering that not even 25% of all arbitrators in ICC proceedings, which is leading the way, are female, shows how much still needs to be done. A completely different topic: More recently, the use of new technologies has increased, especially the rapid growth of virtual or semi-virtual hearings since the outbreak of the Covid pandemic. I consider this as a good development. Lastly, the increasing standardization of the arbitration procedure as such is also interesting. In the past, many arbitrators had their own ideas about how the proceedings should be conducted, some good, many bad, some outright horrendous. Today, however, with increasing professionalization parties expect the arbitrator to follow the often unwritten rules that reflect current best practice.

Have the matters brought before arbitration changed?

Only partially. Plant engineering and construction is a perennial issue in arbitration. To a large degree, such disputes will always be unavoidable due to the sheer complexity and scope of many engineering and construction projects. Price adjustment proceedings for long-term gas contracts are coming to an end. The simple reason is that many of these long-term contracts have already expired or are about to expire. On the other hand, antitrust / cartel damages become more frequent due to the ever-increasing importance of European competition law and, in particular, recent legislative changes that make it easier for claimants to bring and enforce such claims.

What will the future bring for arbitration?

This is extremely difficult to judge, especially in a time of increasing insecurity. Who would have really thought until recently, although of course the warnings had been written on the wall since 2007, that a European country would launch a full-scale war against another. It is also to be feared that the shift away from democracy will continue in many countries, that there will be a division of the world into two parts, with the consequence that globalization and thus also arbitration might shrink.

What advice would you give to prospective future arbitration practitioners?

In all honesty, first a thorough consideration of whether you really want to do arbitration. The field is overcrowded, not least because of its glamorous reputation. But if one has chosen arbitration, diligence, perseverance, persistence, patience and the strategic skill where to begin or continue one’s career. But when you succeed, it is very rewarding and a privilege to work in a fascinating, diverse, thought-provoking, and intelligent community of arbitration attorneys. I wouldn’t want to trade, but the road - as written - can be rocky.