Nils Eliasson, partner in King & Spalding’s International Arbitration Group, acts as counsel and arbitrator in commercial and investment disputes across a wide range of industry sectors, including energy, construction, private equity and telecommunications, before all major arbitral institutions, including HKIAC, ICC, SIAC, LCIA, KCAB, CIETAC, ICSID and SCC. Nils has been based in Asia for 15 years, and is widely recognized as a leading practitioner for Asia-related disputes. He is a Vice-Chair of HKIAC.

What did you find most challenging about entering international arbitration?

Arbitration was the field chosen for me by my then law firm when I first started to practice as a young associate, so I had to learn the art and craft of arbitration “on the job”.

Many arbitral awards are starting to end up back in court for enforcement proceedings. Does arbitration have an enforcement issue, and how could this be addressed if so?

In my experience, most awards are complied with voluntarily or through a post-award settlement, so I do not agree that arbitration has an “enforcement issue”. Furthermore, in most jurisdictions, there are significantly less problems to enforce a foreign arbitral award than foreign court judgments. That said, it is imperative to consider where and how a future award would be enforced already before arbitral proceedings are commenced to ensure that an effective enforcement strategy is in place from the outset of the dispute.

Some practitioners have told us of greater international harmonisation between arbitration codes of conduct, particularly for investor-state arbitration. Is this something you see, and how could it change arbitration?

The IBA’s guidelines have been instrumental for the harmonisation of arbitral conduct. In particular, the “IBA Guidelines on Conflicts of Interest in International Arbitration” are regularly referred to by both arbitral institutions and national courts when deciding challenges of arbitrators. These guidelines contribute to creating a level playing field in this area that goes to the core of the legitimacy of arbitral proceedings. For investment treaty arbitration, the most notable effort is the “Draft Code of Conduct for Adjudicators in International Investment Disputes”, prepared by UNCITRAL’s Working Group III. The Draft Code attempts to grapple with some of the thorniest issues of investment treaty arbitration, most notably “double hatting” (i.e. an individual acting both as adjudicator and in a different role (e.g. counsel) in separate proceedings simultaneously or within a short time). The impact of the Draft Code, which is expected to be adopted in 2023, will ultimately depend on how it is implemented and enforced. If the Draft Code is to be incorporated in treaties its implementation may take significant time. Incorporation in the rules of arbitral institutions may produce faster results.

Given the Sino-US tension, do you foresee more investor-state arbitrations sprouting as a result and how would you navigate around them if so?

The increased scrutiny of and measures taken against certain Chinese companies operating in the U.S. have already caused Chinese enterprises to consider their investment treaty options. To the extent the Chinese government responds in kind, U.S. companies will no doubt follow suit. The main issue to navigate is the fact that there is no investment treaty in force between China and the U.S. This effectively bars any investment treaty claim unless the impacted investment was made through a third state that has concluded an investment treaty with China/U.S. The lack of an investment treaty between China and the U.S., makes “investment treaty structuring” of new investments imperative. The second hurdle is that most investment treaties do not apply to the “pre-establishment” stage, i.e. where a foreign investment is blocked at the investment stage. Typically, an investment treaty is engaged only where the government measures affect an existing investment.

How does your experience assisting clients in a wide range of sectors enhance your arbitration practice? How do you ensure you develop in-depth sector knowledge?

Depending on the nature of your practice, it may not be viable to limit your practice to only one industry or one type of dispute. It therefore enhances the practice, both as counsel and as arbitrator, to have the capability to handle disputes across a range of sectors. It should also be noted that for certain types of disputes, subject matter expertise may be more important than industry experience. At the same time, it is not possible to be a “jack of all trades”. The only way to develop and maintain sufficient in-depth sector experience is through actual experience.

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

Even if the arbitration is conducted in English, if the documents are in another language or many of the witnesses will testify in another language, having arbitrators who are proficient in that language not only reduces costs, but also ensures that the nuances of the written and oral evidence are not lost.

Do you envisage the emergence of any new arbitration seats that will rival those currently most popular?

I believe there always will be healthy competition between established seats and new seats. 25 years ago, few practitioners would have expected Hong Kong and Singapore to be among the top three seats globally. Similarly, other seats will emerge and take a share of the market. In Asia, for instance, I believe that both Korea and Japan will continue to develop as seats and grow stronger over time.

What advice would you give to budding arbitrators hoping to one day be in your position?

My first piece of advice for young practitioners is to seize every opportunity for “learning by doing”. Do not say no to an internship opportunity or associate position to pursue a second or third master’s degree. Studying is a marvellous experience, but it does not teach you the art and craft of arbitration in the same way as working cases. My second piece of advice is to remain humble and appreciate that the process of learning never ends. I have had the privilege to learn from some of the very best arbitration practitioners at different stages of my career – as junior associate, senior associate and partner – something for which I am forever grateful.