Robert Wachter is “an outstanding counsel” and “an excellent oral advocate” who is “great at explaining the most difficult legal issues in simple terms to cater to the audience’s expectations”.
Robert Wachter FCIArb is co-head of international arbitration team at Lee & Ko. He has practised in South Korea for almost two decades. He has been recognised by Chambers and Partners, Legal 500, Asialaw, Benchmark Litigation, Asia Business Law Journal, Who’s Who Legal (Arbitration), and Who’s Who Legal: Thought Leaders. He is a member of KCAB International’s advisory committee, a co-founder of KCAB Next, a fellow of the Chartered Institute of Arbitrators, and the chair elect of the global Lex Mundi LADR practice group.
What qualities make for a successful arbitrator in today’s climate?
Arbitrators are judged, or ought to be judged, by the quality of the questions they ask at the hearing. Their questions reveal how much they have prepared and how well they understand the case. The best arbitrators are those who are naturally curious, who are determined to make a well-informed decision, and who exhibit these characteristics by actively deliberating with counsel. It is frustrating to plead a case to a “black box” tribunal where arbitrators do not disclose their views until they write the award.
The current arbitration market is reportedly working with a small pool of arbitrators, and it is becoming increasingly difficult to find arbitrators who do not have a conflict of interest. Do you agree, and if so, how can this issue be effectively addressed?
In any field, there are always a few elite performers whose services will always be in great demand. We should not expect international arbitration to be any different. By definition, there is always a shortage of the elite performers. But this is a relative phenomenon. In truth, the depth of talent in our field is much greater than it was a decade ago. This is exactly what we should expect, but it does not change the perception that there are only a few elite performers.
How does your broad experience across a wide range of sectors enhance the skills you bring in your practice?
I thirst for variety. I prefer to work on a wide range of different matters in different sectors. I particularly enjoy working on disputes involving complex scientific or technical questions. That is what challenges me, that is what keeps me learning. Some subsectors in international arbitration require specialisation. But for me, working on the same disputes, based on the same fact patterns, the same types of contracts – this has little appeal. I am naturally curious. I prefer the disputes that fall outside the well-defined parameters. I hope that I never become pigeon-holed into a particular category.
What is the major difference between handling an arbitration involving a government entity and one that does not? What advice would you give to younger professionals in navigating the different dynamics?
The internal decision-making process in government differs from the private sector. The same is true for government-owned enterprises. The internal incentives are also quite different. Governments and government-owned enterprises are subject to audit. This complicates decision-making, and requires employees to think more defensively, which leads to a more drawn out and deliberative procedure. This makes it more difficult for counsel, and some of the hardest cases are those representing governments and government-owned enterprises. Even so, these are some of the most enjoyable and personally rewarding cases, and working on these cases sometimes feels like a form of public service.
In your opinion, do you foresee Korea becoming a more popular seat in the region?
Korea is one of the strongest seats in Asia – just as arbitration-friendly as Singapore or Hong Kong. Yet those jurisdictions have an advantage because the cases are readily available in English, which makes the law more accessible to outsiders. Korean courts have adopted an enlightened view of modern international arbitration, but the law is not as accessible because the decisions are in Korean.
Looking back over your career, what is the most interesting case you have been a part of?
I was involved in a case that concerned a world-famous artwork looted by the Nazis during World War II. The painting disappeared after the war, but then resurfaced decades later when it was sold. The cloud over the title was removed by donating a large portion of the sales proceeds to the heirs, who released their claims. The heirs had a disagreement among themselves, which is why the case was submitted to arbitration. The issues concerned the authenticity, validity and enforceability of an instrument executed during the war that purported to transfer title while the painting was still lost, and when it was uncertain whether it would ever be recovered.
What is the best piece of advice you’ve ever received?
My first mentor out of law school was Judge Sam King, an 82-year old senior federal judge in Hawaii. I remember several bits of wisdom I picked up during my clerkship that I will never forget. First, the Judge always said that “our suspicions of others are based on our knowledge of ourselves” - a great insight into human nature that has always spoken to me. Second, he always found a way to find work some levity into even the most tense hearings. He believed that the practice of law was a fraternity, and warned to never take matters personally, because everything lawyers do “they do on behalf of their clients”. Finally, his advice for a happy marriage: at least once a week, be sure to say those three magic words; “Let’s eat out.”