How does your experience acting in disputes under a vast number of arbitration institutions benefit the offering you bring to clients?

Arbitral institutions are important players in international arbitration. They monitor the process, appoint arbitrators and decide challenges. It is therefore key to understand how they operate. What matters most is not so much the view from the outside but the knowledge of each institution from the inside. The rules of the various instructions are very similar but the manner in which they function in practice can be very different. Being familiar with the inner functioning of each major institution is essential for any accomplished arbitration practitioner. That insider knowledge will guide the choice of arbitrators, the likely profile of the chair if the institution is to make the appointment, and whether it is worth bringing a challenge.

How has your position as senior co-chair of the IBA arbitration committee enhanced your practice?

The IBA arbitration committee has been at the forefront of the profession since it was created. It is a place where ideas are exchanged, concepts are discussed and self-regulation is enacted. The IBA rules on the taking of evidence and the IBA guidelines on conflicts of interest are a testament to the success of this committee. It is therefore an extraordinary privilege to chair the committee. The benefit is not really a profile benefit, because profile is required to chair the committee and all candidates have a very established profile. The benefit derives from the interaction with the outstanding group of individuals that are part of the committee at any point in time. This dialogue has been extremely rewarding for me.

Practitioners report a marked increase in international mediation, even when there are arbitration clauses in contracts, due to cash-strapped businesses seeking early settlement. Is there a danger arbitration could take a back seat to mediation?

Parties are there to make business, not lawsuits. Only a handful of extremely sophisticated players are actually making a business of bringing lawsuits. For the rest, a lawsuit is a disruption preventing them from conducting their regular business. Against this background, it is only normal that parties seek to resolve their disputes amicably. This can happen before the lawsuit begins, at the beginning of the lawsuit or at the end, when the decision is about to be handed down. Mediation is one way of reaching an amicable settlement. But it takes both parties to conclude a mediation successfully, and the Achilles’ heel of all processes based on the agreement of the parties is that a recalcitrant party cannot be compelled to agree. As a result, a party may need a binding decision. When a binding decision is needed, mediation is not an option. Arbitration is one option in that case.

Sources report a trend of arbitration practitioners being involved when contracts are drafted. How does this benefit parties in a contract?

Two aspects need to be distinguished here. Assistance with the drafting of the arbitration agreement and assistance with the drafting of the rest of the contract. On the former, the benefit is obvious. If the arbitration agreement contemplated is something other than a model clause of an institution, the assistance of a specialist of arbitration is necessary. Otherwise, the risk of drafting a pathological clause is high. The result of a pathological clause is that time and money will be spent trying to make the clause work and the clause may actually never work properly, preventing a party from prosecuting a legitimate claim. Regarding the latter, the benefit is more indirect but real. In my experience, all M&A lawyers who have once participated in an arbitration on a contract that they had drafted enormously benefited from the experience. Most have told me that they had no idea how clauses that they believed were clear had been interpreted during the arbitration. Showing a contract to a dispute lawyer is always a good precaution. I am thinking in particular of clauses that have a direct financial impact, such as limitations of liability clauses, exclusion of liability clauses and liquidated damages clauses.

How crucial have you found your knowledge of international law to your success in the investment protection sector?

Investment protection, insofar as it is based on treaties (BITs or multi-lateral treaties) as distinct from investment laws, is international law, more specifically the laws of treaties, applied in practice. As such, it is nearly impossible to understand the manner in which international investment law is developing without a solid knowledge of international law in general.

What green arbitration trends are currently prevalent in the market?

I see two major trends. First, no-paper arbitration is developing at light speed. Many cases are now conducted with virtually no paper at all. Second, the use of Zoom for procedural hearings. It would be unthinkable today to fly to Australia for half-a-day procedural hearing, as we did in the past. These developments are more than welcome.

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?

Self-regulation works when it is self-regulation, not imposed regulation. The current discussion on codes of conduct, especially in the investor-state area, unfortunately belongs to the latter category. These codes, if enacted, will render appointments as arbitrator more difficult, impose unrealistic disclosure obligations and limit considerably, if not prohibit, the exercise of the activity of arbitrator and counsel at the same time, even in unrelated cases. If this trend continues, investment arbitration will be anecdotal 15 years from now.

What would you like to achieve in your career that you haven’t done so already?

I want to keep learning. By definition, this target will never be achieved.