WWL Thought Leaders Arbitration 2022 by lbresearch

THOUGHT LEADERS

Arbitration 2022

Interviews with the pinnacle of the profession

Read interviews with the world’s leading lawyers and experts.

Available now  @whoswholegal

 whoswholegal.com

 Who’s Who Legal

THOUGHT LEADERS

Introduction

Contents Arbitrators & Counsel

I am delighted to present WWL Thought Leaders: Arbitration 2022, which brings together the insight, expertise and wisdom of some of the world’s foremost arbitration lawyers and experts in a single book. Through thousands of votes and nominations in the course of our research, the market has identified that the practitioners in the following pages are among the very best in the world in their field, without exception. Who’s Who Legal has been researching legal markets since 1996 and now covers 35 practice areas and over 150 countries. Entry into our guides is, of itself, no easy feat, with fewer than half of those nominated obtaining a listing. The bar to be considered a thought leader for arbitration is even higher: only those listed lawyers who obtained the highest number of nominations from peers, corporate counsel and other market sources in our most recent research cycle were considered. In total, only one in every nine individuals considered for inclusion in WWL: Arbitration 2022 were invited to take part in WWL Thought Leaders: Arbitration 2022. Through interviews with the practitioners themselves, WWL Thought Leaders: Arbitration aims to shine a light on what puts these practitioners at the apogee of the global arbitration market. They are worthy of special mention owing not only to their expertise and experience advising on some of the world’s most significant and cutting-edge matters, but also their ability to innovate and inspire. Their experience and understanding of the legal world and their unique insights into the area will no doubt be illuminating and instructive to a wide spectrum of readers, whether clients, corporate counsel, established practitioners, those starting out in the law, or anyone with an interest in the practice of law at the very highest level. This edition of WWL Thought Leaders: Arbitration features Q&As with 153 practitioners with hundreds of years of combined experience in the field between them. I would like to thank the participants who gave us their valuable time to answer our questions and make the book possible. It is rare to have so much arbitration expertise concentrated in one place and we hope you will agree that their responses make fascinating reading. Rupert Wilson Head of research & analytics, Who’s Who Legal June 2022

2 Mohamed Abdel Wahab 6 Funke Adekoya SAN 8 Manuel Arroyo 10 Chiann Bao 12 Niuscha Bassiri 14 David Bateson 16 Antje Baumann 20 John Beechey 22 Lisa Beisteiner 24 Massimo Benedettelli 26 George A Bermann 28 Rouven F Bodenheimer 30 Stavros Brekoulakis 32 Cavinder Bull SC 34 Alfredo Bullard 38 Olivier Caprasse 40 Cecilia Carrara 42 James H Carter 44 J Brian Casey 46 Eliseo Castineira 48 Michelangelo Cicogna 52 Stephanie Cohen 54 Adrian Cole 56 Nayla Comair-Obeid 58 Sandra De Vito Bieri 60 Kabir Duggal 62 Carine Dupeyron 64 Nils Eliasson 66 Pontus Ewerlöf 68 Huáscar Ezcurra 72 Xavier Favre-Bulle 74 Harold Frey 76 Simon Gabriel 78 Claudia Benavides Galvis 80 Ulrike Gantenberg 82 Gaela K Gehring Flores 84 Beata GesselKalinowska vel Kalisz 86 Pierre-Yves Gunter 88 Grant Hanessian 90 Bernard Hanotiau 92 Richard Happ 94 Christopher Harris QC 96 Clifford Hendel 98 Daniel Hochstrasser 100 James Hope 102 Brenda Horrigan 104 Benjamin Hughes 108 Stephen Jagusch QC 112 Alexandra Johnson 114 Douglas Jones AO

118 Moritz Keller 120 Kevin Kim 124 Louis B Kimmelman 126 Gisela Knuts 128 Christian W Konrad 130 Nadja Jaisli Kull 132 Carolyn Lamm 134 Crenguta Leaua 136 Steven Y H Lim 138 Arthur Ma 140 Dana C MacGrath 142 Jean Marguerat 144 Pierre Mayer 146 Isabelle Michou 148 Loukas Mistelis 152 James Morrison 154 Alexis Mourre 158 Ziad Obeid 160 Colin Ong QC 162 Patrick W Pearsall 164 Wolfgang Peter 166 John V H Pierce 168 Philippe Pinsolle 172 Michael Polkinghorne 174 Markus Schifferl 176 Christoph Schreuer 178 Eric Schwartz 180 Franz Schwarz 182 Hi-Taek Shin 184 Davinder Singh SC 186 Jonathan Sutcliffe 188 Pierre Tercier 190 Hiroyuki Tezuka 192 Albert Jan van den Berg 194 Annet van Hooft 196 Cosmin Vasile 198 Claus von Wobeser 200 Robert Wachter 202 Janet Walker, CM 206 Carita WallgrenLindholm 208 Urs Weber-Stecher 210 Jennifer Younan 212 Karim A Youssef 214 Gerold Zeiler 216 Tobias Zuberbühler 218 Directory

Expert Witnesses 224 228 232 234 236 238

Head of research & analytics Rupert Wilson

Content production manager Robert Harris

Business development manager Kiteria Yiu

Head of research: US Penelope Williams

Senior production editors Katie Adams, Harry Turner, William Holt

Deputy head of research Charlotte Riley

Production editor Ellen Desmond

Account managers Nick Townsend, Bilikis Olowolekomoh, Sam Limbu, Leon Hartley, Hadassah Maitaram

Senior research analysts Conor Manders, Alex Bottomley

Junior production editor Nathaniel Balch

Research analysts Ammara Saleem, Tabia Lui, Olivia Harrison, Kirsty Carvalho, Johana Shonibare

Head of business development Adam Landes

Customer service executive Harry Marloe Publisher Tom Barnes

Mike Allen Neil Ashton Bruno Augustin Daniela Bambaci David Barry Braden Billiet

240 Richard Boulton QC 242 Matthias CazierDarmois 244 Anthony Charlton 246 Laura Cózar 248 Santiago Dellepiane 250 Alexander Demuth 252 Trevor Dick 254 Giovanni Di Folco 256 Austin Duffy 260 Frederic Elkeslassy 262 Jonathan Ellis 264 John Ellison 266 Andrew Flower 268 Juliette Fortin 270 Jeffrey E Fuchs 272 Amit Garg 274 Christopher J Goncalves 278 Dean Graves 280 Mustafa Hadi 282 Laura Hardin 284 Roula Harfouche 286 Timothy H Hart 288 Don Harvey 290 Thomas Hofbauer 292 Liam Holder 294 Jonathan Humphrey 296 Frank Ilett 298 Mrinal Jain 300 Valery Knyazev 302 Gervase MacGregor 304 Wendy MacLaughlin 306 Franco Mastrandrea 308 Chris Milburn 310 Carlos Pabon-Agudelo 312 Rob Palles-Clark 314 Michael Peer 316 Liz Perks 318 Anamaria Popescu 320 Joanne Prior 322 Jon Prudhoe 324 Jacqui Record 326 Howard Rosen 328 Garrett Rush 330 Mike Saulsbury 332 Kiran Sequeira 334 Matthew Shopp 336 Luke Steadman 338 Michael Stokes 340 Erik van Duijvenvoorde 342 Meera Wagman 344 Vikki Wall 346 Heiko Ziehms 348 Directory

Cover photography: istockphoto.com/kenishirotie Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112

Mohamed Abdel Wahab

Zulficar & Partners

Cairo www.zulficarpartners.com msw@zulficarpartners.com Tel: +202 24612147

Biography Prof Dr Abdel Wahab is Professor of Law (Cairo University); founding partner and head of International Arbitration Construction and Energy Groups, Zulficar & Partners (Egypt); treasurer and member of the ICCA Governing Board; vice-chair, ICC Governing Body for Dispute Resolution Services; co-chair, IBA Arab Regional Forum; dean of the Africa Arbitration Academy; member of the Governing Board (ICODR); and chair of the International Expert Advisory Committee of the Permanent Forum on China Construction Law.

Arbitrators & Counsel

What qualities make for a successful arbitrator?

A successful arbitrator is one who: (i) is well read; (ii) is not predisposed; (iii) is fully impartial and independent; (iv) has excellent communication skills; (v) has a sharp analytical mind to distil the core and important issues in dispute; (vi) pays great attention to details; (v) does not shy away from taking decisions as and when warranted; and (vii) is able to efficiently conduct the arbitral proceedings and to draft clear, intelligible and well-reasoned awards grounded in the facts and the law.

What steps can be taken to ensure that arbitrators are more comfortable with the digitalisation of international arbitration?

The digitalisation or use of ICTs and AI applications in arbitration is indeed topical, timely and pervasive. Owing to the ICT revolution, well-established principles of arbitration are being reconsidered and reconfigured. Having advocated for the use of technology in arbitration and online dispute resolution (ODR) ever since 2001, it is now a reality that integrating ICT and AI applications in arbitration proceedings is inevitable. As Marshall McLuhan (Understanding Media, New York: McGraw Hill, 1964, p.161) once wrote, when “a new technology comes into a social milieu it cannot cease to permeate that milieu until every institution is saturated.” Arbitral proceedings can be grouped into two broad categories: (a) technologyassisted arbitration proceedings, where the role of technology is limited to the provision of an adequate and secure medium of communication and information exchange and/or utilising software and ICT applications to specific aspects of the arbitral proceedings to assist the parties and arbitrators; and (b) technology-based arbitration proceedings, where fully fledged application of cutting-edge technology is utilised to resolve disputes and render decisions. We are already witnessing the impact of introducing “predictive justice”, “blockchain” applications and many AI technologies to the world of international arbitration. Arbitrators, who aspire to stay in the game, need to keep up with technological

developments and stay ahead of the curve by familiarising themselves with new technologies, their potential use in arbitral proceedings and the basics of staying safe and secure online when interacting digitally, by mitigating and minimising the risks associated with the use of ICT applications and new technologies through encryption technologies, firewalls and passwords, as well as privacy enhancing technologies. This will not only offer arbitrators a muchneeded edge when conducting proceedings, issuing orders and awards, but also when deciding technology related disputes. On a different note, while the human nature of arbitrators was never challenged or brought into question, artificial intelligence applications are now threatening this quintessential element of the arbitral process. For the present generation, it may be a bliss that the world has not yet evolved to a stage where humans and AI forms are infused and integrated, but the future beholds such possibility together with its associated risks and challenges.

How big is the issue of geographic exclusion in arbitration (ie, where small states don’t have the infrastructure to participate effectively in arbitration proceedings)? How could this be addressed?

I prefer to speak of “inclusion” rather than “exclusion”. States that aspire to actively and effectively participate in arbitral proceedings and in shaping the future of arbitration must possess the necessary infrastructure. This requires developing and possessing arbitration-friendly legislative and judicial frameworks that are aligned with best principles and practices in arbitration. Moreover, states should also develop the requisite expertise, capacity and experience in prosecuting international arbitral proceedings, and should make prudent choices regarding the appointment of counsel and arbitrators in these proceedings. Furthermore, in today’s world that is powered by ICTs, the digitalisation of arbitration can create an uneven playing field, and so small states are expected to invest in technology to ensure that they have the requisite technological infrastructure that enables them to effectively participate in arbitral proceedings.

whoswholegal.com/thought-leaders

The dispute resolution spectrum includes numerous dispute resolution processes, and arbitration and mediation are among the notable and successful processes. However, there is a major misconception, that is: the success of one dispute resolution process means the demise of another. This is simply wrong. By way of illustration, the success of litigation in certain countries has not led to a decline in arbitration cases and both systems have co-existed. Thus, the success of mediation will not adversely affect arbitration and vice versa. In fact, the success of both processes positively contributes to the overall success of dispute resolution and is demonstrative of safeguarding the rule of law. That said, if one looks at credible statistics, it will be obvious that both arbitration and mediation cases are on the rise, which suggests that the success of either does not lead to the failure of the other. In any event and in a nutshell, arbitration remains the business community’s preferred dispute resolution process for many reasons, including the finality of arbitral awards and their enforceability in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), which remains one of the most successful treaties worldwide.

What have been your greatest achievements to date?

Honestly speaking, one’s achievements are not simply measured by sheer personal successes or acknowledgements, but by the contributions made institutionally and to the lives of others. I fully endorse Robert Louis Stevenson’s memorable words that one cannot simply judge each day by the harvest one reaps but by the seeds that one plants. That said, I do consider that re-positioning our firm as a world class leading arbitration practice and building its 25-plus members arbitration group is my

most valued achievement alongside my academic contributions towards assisting in the preparation of a new generation of qualified practitioners. Accordingly, I am of the firm view that contributing to the building of the next generation of talented practitioners is a significantly overwhelming achievement that is no less rewarding compared to receiving the 2017 GAR award for the best Mediterranean/ North African Arbitration Practice and the 2018 ASA Prize for Advocacy in International Arbitration.

There are also several landmark cases that our arbitration group secured wins in for our clients even when the most optimistic minds thought that the outcome would not be favourable. To me, the fact that others see that we can make a difference is a true mark of success.

speak for you and be confident, but never develop an inflated pride or an over-sized ego. He who speaks without modesty will find it difficult to make his words good. Young practitioners must also recall that knowledge is power and that there are no shortcuts to the top of a palm tree.

What advice would you give to younger practitioners hoping to one day be in your position?

Work hard, enjoy what you do, never give up, be patient, let your work and intellect

Peers and clients say: “His intellectual rigour and well-rounded experience make him a natural choice as an commercial arbitrator” “He is academically brilliant” “One of the best minds on arbitration issues” “Extremely impressive” 4

Arbitrators & Counsel

Analysing the evolving law on trading, protecting and monetising data

Receive regular content emails from Global Data Review, including news and analysis covering the spectrum of data law, regulation and practice from IP, privacy, cybersecurity, e-commerce, M&A and IT. Global Data Review is the only publication that reports on this fast-moving area of law and coalesces it into one focused, comprehensive information source.

Find out more www.globaldatareview.com gdr-subscriptions@globaldatareview.com

Funke Adekoya SAN

Funke Adekoya Arbitration Practice Lagos www.funkeadekoya.com

funke.adekoya@funkeadekoya.com Tel: +234 802 302 3738

Biography Funke Adekoya SAN practises as an independent arbitrator and litigation consultant in Lagos, Nigeria. After obtaining her law degree in Nigeria, she attended the Harvard Law School, Boston, Massachusetts, USA where she obtained her LLM. In addition to her involvement in high-value disputes in the natural resources and construction sectors, she advises international counsel in arbitration-related litigation and also often provides international clients with expert witness evidence and opinions on issues of Nigerian law.

Arbitrators & Counsel

What inspired you to pursue a legal career?

My father studied law as a mature student. As a child, I was enthralled, listening to him discussing cases and legal concepts in contract and tort with his informal tutorial group. From then on, I never wanted to be anything other than a lawyer.

What did you find most challenging about entering arbitration practice?

Having the requisite knowledge and expertise in arbitration practice is the first step; however these can only be showcased if one is appointed as either arbitration counsel, expert or arbitrator. Being accepted into what was some twenty years ago essentially a “male, pale and stale” world was challenging as I did not fit into any of the three categories. As the years have passed, I might now be qualified for the “stale” category!

participate in arbitration proceedings despite what may be a challenging geographic location.

What do you enjoy most about working in arbitration?

The opportunity to meet and exchange ideas with people from different parts of the world, often from different legal backgrounds is a high point for me. Then again, the exposure to different cultures either through witness evidence in hearings or when attending arbitration conferences, highlights for me the “international” nature of arbitration.

Most Nigerian arbitrators are members of large law firms. Having recently retired from AELEX where as a founding partner you established its arbitration practice group, what do you see as the future for independent arbitrators in How big is the issue of geo- your jurisdiction?’ graphic exclusion in arbitration While large law firms can provide maximum (ie, where small states don’t administrative support to arbitrators, the have the infrastructure to par- threat of potential client conflicts may also ticipate effectively in arbitra- restrict the ability to appoint the arbitrator. tion proceedings)? How could My retirement from AELEX and move to this be effectively addressed? acting as an independent arbitrator points There is a silver lining in every cloud and for covid-19, it was the transition to online evidentiary hearings. These provided the opportunity for greater participation by persons from previously less well known jurisdictions, who would have otherwise had to travel to attend hearings, with the required and sometimes excessive financial implications. The transition to more virtual hearings has, however, highlighted the need for emerging economies, which are often the base for disputes to upgrade their digital infrastructure and technological support so they can seamlessly

to the fact that there is a life outside of big law. One just has to balance the downside of restricted administrative support against the upside of less potential client conflicts. I think the future of independent arbitrators in Nigeria is bright.

To what extent should more b e d o n e to i m p rov e t h e transparency of arbitration proceedings? The UNCITRAL Rules on Transparency in treaty-based investor-state Arbitration already provides for transparency and

accessibility by the public to treaty-based investor-state arbitration; an aspect of arbitration where the public have a right to be informed. Where commercial arbitration is involved however, the arbitration community needs to balance the need for transparency against confidentiality, which is one of the prime attractions to arbitration to the commercially minded. Currently, many arbitral institutions are providing information regarding arbitrator availability by publishing suitably redacted caseloads of the arbitrators on their panels. Some also provide redacted decisions on arbitrator challenges. The publishing of redacted awards will also provide training material for up-andcoming arbitrators as to the various styles of writing awards.

You have significant expertise as a litigator. How does this enhance your arbitration practice?

Complex litigation requires the ability to read, digest and organise massive amounts of material in the shortest possible time. Oral advocacy skills combined with the ability to think on your feet are also prerequisites for a litigator. They have come in handy in arbitration practice.

Where, in your opinion, does the future of the practice area lie? As the economies of the world focus on Africa and other developing markets as the last unexplored area of investment opportunity, I predict that there will be an upsurge of Africa-originating disputes. Growing nationalism all over the world will result in pressure on the arbitration community for the engagement of more racially diverse participants in arbitration practice, both as counsel and as arbitrators.

Peers and clients say: “Funke is simply excellent” “A leading name in the Nigerian arbitration space” “She is brilliant at presenting and excels in crude-related disputes”

whoswholegal.com/thought-leaders

Manuel Arroyo

Eversheds Sutherland

Zurich www.eversheds-sutherland.com manuel.arroyo@evershedssutherland.ch Tel: +41 44 204 90 90

Biography Manuel Arroyo is a partner of Eversheds Sutherland in Switzerland. He specialises in international arbitration and commercial litigation. Manuel has acted in over 100 international commercial arbitrations as counsel or arbitrator. Manuel is the editor and co-author of the most comprehensive treatise on arbitration in Switzerland, Arbitration in Switzerland - The Practitioner’s Guide (2,957 pages, 2018). He is the author of more than 50 publications and has been a speaker at over 30 international arbitration conferences.

Arbitrators & Counsel

What do you enjoy most about The current arbitration market acting as counsel and arbitra- is reportedly working with a tor respectively? small pool of arbitrators, and As counsel, I like to develop the right it is becoming increasingly difstrategy and theory of the case for the ficult to find arbitrators who do client. This is a most creative and dynamic not have a conflict of interest. task. Working in a team of lawyers, Do you agree, and if so, how including in-house counsel, is also can this issue be effectively enriching. Moreover, it is a very rewarding addressed? experience to work as a team with the London, Paris or New York office of our firm. This has been the case recently in an emergency arbitration, and is now the case in two other international arbitrations, too. Our firm has approximately 3,000 attorneys in more than 70 offices, over 30 countries worldwide. In my view, this global reach and the international cooperation is a tremendous asset in international arbitration. As arbitrator, the most enriching part of my work is the hearing and the subsequent deliberations with my colleagues of the tribunal – particularly when complex issues need to be decided and there is no consensus within the tribunal.

What impact does your work in matters outside of arbitration have on the value you bring to arbitration clients?

Well, given that I also act as arbitrator on a regular basis, clients in cases where I am counsel are more responsive when I suggest, for example, not to make an unsolicited submission or to not be overly aggressive towards the opposing party (or their witnesses) as this will, most certainly, have a negative impact on the tribunal.

I agree. This, however, is often due to clients wishing to have very experienced/ very senior arbitrators even in cases where the amount in dispute is not particularly high. The issue could be addressed, eg, by choosing young(er) arbitrators, who are very dedicated, on a more frequent basis. Another option would be to include an age threshold in institutional rules for arbitration (as the Shanghai Arbitration Rules do, where arbitrators must now be under 68, previously under 70: http://www.shiac.org/ shiac/arbitrator_E.aspx?flag=2).

How has your previous experience at the Swiss Federal Supreme Court strengthened your practice?

Particularly when it comes to providing advice on whether or not it is advisable to try to challenge an award before the Supreme Court and/or when providing advice on a setting aside application in a particular case, I am regularly consulted on the aforementioned issues. As a result, my previous experience has definitely strengthened my practice.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat? In my experience, the question of whether the hearing is remote/virtual or in person should not have, and during the pandemic has not had, a significant influence on the selection of the arbitrator or the seat.

Are you noticing an uptick in certain sectors experiencing commercial disputes? If so, why?

Perhaps in the pharmaceutical industry, but it is difficult to understand why this is so. Probably, the more pharmaceutical companies go global, the more there is a need for an effective dispute resolution mechanism – especially as the worldwide enforcement granted by the New York Convention on the Recognition and Enforcement of Arbitral Awards is a key factor when opting for arbitration according to statistical data (such as the data in the Queen Mary University/PWC surveys published in the past).

What underrated skills would you encourage the up-andcoming generation of arbitration professionals to develop?

The skill is not to focus so much on what other colleagues/attorneys do when it comes to marketing/networking, but to think outside the box, so to speak, and develop your own strategies that the vast majority is not applying.

Peers and clients say: “He has a strong profile as counsel and arbitrator” “A brilliant lawyer doing amazing work for the Swiss arbitration community, in Switzerland and abroad”

whoswholegal.com/thought-leaders

Chiann Bao

Arbitration Chambers Hong Kong www. arbchambers.com

chiann.bao@arbchambers.com Tel: +65 8354 7488

Biography Chiann Bao is a chartered arbitrator and a member of Arbitration Chambers. She has acted on matters in most of the major arbitral seats and has served as arbitrator in cases with a total value of several billion US$ in dispute, under ad hoc and institutional rules involving corporates, states and state-owned enterprises. Prior to becoming an independent arbitrator, Chiann worked in private practice where she focused on complex international arbitration and litigation. Chiann serves as a vice chair of the IBA’s International Arbitration Committee.

Arbitrators & Counsel

Name one of your most memo- A common complaint about principle that works alongside the arbitrarable cases. international commercial arbi- tor’s discretion to maximise an efficient Each case represents a building block of tration is that the process is no running of the proceedings and enable the experience, the culmination of which forms longer efficient. What can arbi- arbitrator to build in fairness and predicttrends and impressions I draw and learn trators do to ensure that the ability in the process. from for the next matter. However, if I am arbitration proceeds smoothly to recall the most distinctively memorable and without unnecessary delay? What steps can be made to case to date, it would be a New York-based There are two main culprits for the delay. increase diversity in the arbidispute involving the re-development of First, it is both the parties’ and the arbitra- tration field? Ground Zero. Having the opportunity to do a site visit on the grounds where 9/11 happened and then participating in a threeweek hearing at a venue that overlook the development of the site certainly gave me a deep impression.

Are you noticing an uptick in certain sectors experiencing commercial disputes? Why?

Based on my own caseload and hearing about what others have on their docket, there is a noteworthy increase in disputes involving technology, life sciences and crypto-assets. It seems that these sectors have been significantly impacted by the pandemic and disputes have increased as a result.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat? The normalisation of virtual arbitration appears delocalise counsel’s options: some counsel will therefore think beyond their regions when it comes to selecting arbitrators. In my personal experience, this is certainly the case, and the traditional mental barriers for appointing arbitrators further afield from counsel’s home jurisdiction and/or the seat of arbitration seem to have been removed or at least minimised with the popularity of virtual arbitration.

tors’ schedules. Addressing this requires arbitration practitioners, including arbitrators, to make responsible decisions when accepting new matters. Second, it is the propensity that some arbitrators have to readily grant extensions. While invariably there may be a need to grant extensions, arbitrators should consider the real necessity of extensions and, where possible, offer creative solutions to reduce the consequential slippage of deadlines.

How would you summarise the philosophy behind your role as arbitrator?

It is hard to define my “style” per se as I would say that each arbitration will have a different prognosis. However, the tone I try to set for my arbitrations is one which strikes a balance between flexibility and firmness and in all cases requires civility. Given my multi-jurisdictional and multicultural background, I am also conscious of differences in culture and experience and account for this in my approach to each matter.

To what extent is arbitral discretion limited by due process?

Arbitrators are bestowed with broad powers that enable them to run a case largely as they see fit. Due process limits such powers very little. Rather than perceive due process as a limiting force, instead due process should be seen as a

Many steps have been taken to increase diversity and so much of the effort has moved the dial towards better gender balance within our field. However, geographical and other diversities remain a work in progress and indeed, there is much work to do in this space. The first step, of course, is to recognise that there is a problem and that it should be addressed. Second step is then to start offering opportunities so that the underrepresented feature in the arbitration community and are given a seat at the table. The third, and perhaps most difficult step, is to ensure that the door remains open and that integration and engagement is sustained. All too often, diversity is addressed cosmetically and not holistically. Only when those who have opportunities to offer really believe that diversity is essential for continued progress in our field will we start seeing more genuine engagement and integration.

What is the best piece of advice you’ve ever received?

I have two: (1) “Keep your eye on the prize.” Obstacles and challenges are inevitable and might seem insurmountable. However, if you focus on your goals, you have the opportunity to reframe these challenges and find a way through them that will result in helping you achieve your goals. (2) Find a few champions in and out of the field who will believe in you and support you.

Peers and clients say: “A brilliant lawyer and arbitrator” “Chiann is highly impressive and knowledgeable of international arbitration” “She is not only brilliant practitioner but she invests significant time in promoting women in legal profession for the betterment of the industry” whoswholegal.com/thought-leaders

Niuscha Bassiri

Hanotiau & van den Berg Brussels www.hvdb.com

niuscha.bassiri@hvdb.com Tel: +32 2 290 3904

Biography Niuscha Bassiri is a partner at Hanotiau & van den Berg in Brussels. She acts as counsel and arbitrator (sole, presiding and party-appointed arbitrator) in numerous international arbitrations under the major arbitral institutions and arbitration rules governed by various procedural and substantive laws. The arbitrations in which she has been involved with concern stateentities and private entities alike, spanning a multitude of sectors. She is a member of the faculty of the University of Miami White & Case International Arbitration LLM programme as well as a visiting senior fellow at the National University of Singapore Faculty of Law.

Arbitrators & Counsel

What inspired you to pur- Some practitioners have told sue a career in international us of greater international hararbitration? monisation between arbitration I am inspired to pursue a career in interna- codes of conduct, particularly tional arbitration each and every day, and for investor-state arbitration. Is this has been the case for two decades by this something you observe, and now. I find great joy in assisting clients and how could it change arbitration? parties to resolve their disputes together with talented colleagues from across the globe. In my younger years, as a law student, I tried to broaden my knowledge on everything international, except for international arbitration, as it was non-existent as a subject. During my traineeship as a judge, I realised that I would like to be able to apply my knowledge and sense of justice in an international environment, which is why I soon found my place in international arbitration. Today, I have the best of all worlds, acting as arbitrator and counsel, and count myself very lucky.

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

While it is not essential in every case, multiple languages help you to bring more to the table as arbitrator. It allows arbitrators to smoothly navigate across different legal systems in international disputes. Moreover, language ability brings with it a level of cultural familiarity, which helps an arbitrator to see a dispute from several perspectives.

I can see the need for harmonisation of counsel code of conduct, while it is also evident that the counsel’s first and foremost obligation is to their home bar code of conduct. It will be difficult to find a onesize-fits all approach. However, I find it important that counsel advise the tribunal and the opposing counsel of any specific restrictions that they are facing from their home bar code of conduct at the outset of the case so that a level playing field can be maintained throughout the proceedings.

What are the stated goals of the ICC task force on corruption and do you think they are ambitious enough?

The stated aim of the ICC Task Force on Addressing Issues of Corruption in International Arbitration is to explore existing approaches to allegations or signs of corruption in disputes and articulate guidance for arbitral tribunals on how to deal with such occurrences. It is an extraordinarily ambitious task to wade through the approach taken to these issues in dozens of jurisdictions, and to synthesise guidance that will be valuable to arbitral tribunals. In my view, the co-chairs of the task force and its various

workstreams are doing a stellar job in working towards that objective.

Some jurisdictions are drafting new rules on expedited summary proceedings in arbitration. How fast can disputes proceed without breaching procedural rights? There is a time and a place for expedited summary proceedings. Where appropriate, swift resolution can be entirely consistent with due process. Summary proceedings are rightly an exceptional solution and one to be approached with due care.

Given your role as adviser at multiple arbitration institutions, what steps can be made to increase diversity in the coming years?

Institutions are at the forefront in increasing diversity in international arbitration. They can and must continue to give space to greater numbers of arbitrators with diverse profiles to gain valuable experience as arbitrator, especially for firsttime appointments. Many institutions are doing a fabulous job at increasing gender diversity. Others have more work to do, and there is still plenty to be achieved in terms of other types of diversity.

What is the best piece of advice you’ve ever received? Don’t say yes to everything; don’t overcommit.

Peers and clients say: “Highly recommended for her leading investment and commercial arbitration expertise” “A brilliant arbitrator” “She is a very smart and hard-working lawyer” “Niuscha displays excellent judgement” whoswholegal.com/thought-leaders

David Bateson

39 Essex Chambers Singapore www.39essex.com

david.bateson@39essex.com Tel: +65 63209272

Biography David Bateson is a leading international arbitrator who has been involved in over 180 arbitrations in Asia, Europe and the Middle East. He has acted as chairman, partyappointed arbitrator or sole arbitrator in arbitrations under the rules of the AIAC, BANI, CIETAC, DIAC, KCAB, HKIAC, LCIA, ICC, PCA, SIAC and VIAC, or in ad hoc arbitrations. He has extensive experience in disputes in a variety of industry sectors including, construction, resources, commodities, insurance, joint ventures, shareholder agreements, shipping and investor state. He has over 40 years of legal experience and is a specialist in all forms of dispute resolution including arbitration, litigation and alternative dispute resolution.

Arbitrators & Counsel

What did you find most challeng- Some practitioners report that, ing about entering arbitration post pandemic, arbitration practice? costs are deterring parties from Getting sufficient experience and track bringing matters. Is this your record to be appointed arbitrator. experience? That is not my experience. Costs and

It is reported that there is a settling due to poor financials because new generation of arbitrators of the pandemic may have led to many emerging who are increasingly settlements, but many arbitrations are specialised. How does increased now being launched. specialisation benefit the arbitration market and what are the Practitioners report a marked potential pitfalls? increase in international mediaFinding a specialised arbitrator is one of tion, even when there are arbithe key advantages of arbitration. I was tration clauses in contracts, due a construction, energy and resources to cash-strapped businesses specialist, who has branched out into seeking early settlement. Is other areas since becoming a full time there a danger arbitration could arbitrator. take a back seat to mediation? Mediation is an important cost-effective

Many arbitral awards are start- and economical procedure to settle a ing to end up back in court for dispute, and should be encouraged, and enforcement proceedings. Does written into contracts. arbitration have an enforcement issue, and how could this Some jurisdictions are drafting be addressed if so? new rules on expedited sumArbitration has a key advantage over liti- mary proceedings in arbitration. gation in that awards can be enforced How fast can disputes proceed in countries who are signatories to the without breaching procedural New York Convention. It is impossible to rights? stop challenges to awards, but the Model Law’s limited grounds to set aside, and pro-arbitration legislation in most countries, make such challenges difficult to succeed. Tribunals should ensure they produce enforceable awards,

Expedited procedures, such as those prescribed by the ICC, SIAC and HKIAC, are working effectively. Normally, the parties have to agree, exceptional urgency should apply, and the amount in dispute should not exceed a certain amount. The

award should be made in about six months on average, and may be done on the documents only. By agreeing to an expedited procedure, the parties’ procedural rights should not be breached. If reasons subsequently arise to no longer conduct the arbitration by an expedited procedure, an application to the institution can be made.

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

London, Singapore, Hong Kong, Paris and Geneva are the five most preferred seats according to the 2021 Queen Mary Survey. It is possible that New York, Beijing, Shanghai, Stockholm, Dubai or Seoul, Kuala Lumpur, or other seats may join them in the future as a preferred seat.

What advice would you give to younger practitioners hoping to secure appointments as arbitrator?

Work hard as an associate or partner, keep up-to-date on developments in the law, speak at seminars, and write articles and books. Get yourself on panels of institutions who are always on the lookout for younger arbitrators. Once approached, take any case, even if small.

Peers and clients say: “A very experienced construction and projects arbitrator” “He is a well-prepared and commercially minded arbitrator with extensive expertise in Asia” “David is a strong arbitrator who leads the field”

whoswholegal.com/thought-leaders

Antje Baumann

BAUMANN Resolving Disputes Hamburg www.baumann-disputes.de

antje.baumann@baumann-disputes.de Tel: +49 40 2265943-10

Biography Antje Baumann is widely considered to be one of Germany’s leading arbitration practitioners and most-in-demand arbitrators. Her clients benefit from the vast experience she has gained as arbitrator in well over 80 cases, many of those being high-profile ones. Antje’s clients praise her as an excellent lawyer and outstanding strategist. Antje is founding partner of BAUMANN Resolving Disputes. Before establishing her own firm, she worked for more than a decade in the dispute resolution department of a Magic Circle law firm.

Arbitrators & Counsel

What attracted you to a career in arbitration?

During my legal training, I discovered my passion for dispute resolution: no two cases are alike; each case requires a tailored tactical approach. This is to be combined with the “human factor”: in every dispute, you are dealing with different people with whom you must cope one way or the other. To excel as an arbitration practitioner, you need more than legal knowhow. Also, psychological skills, empathy and persuasiveness are required. That is both challenging and rewarding. Those are the reasons why I was always and still am today enthusiastic about working in dispute resolution. To do what I love in an international context is the perfect match for me.

necessary soft skills to be applied also within the arbitral tribunal. This point is frequently overlooked. Controversies within the arbitral tribunal impact the efficiencies of the proceedings and often also the outcome of the arbitration. When interviewing a potential arbitrator, clients should also focus on how the candidate is likely to present him or herself. To sit in a three-member tribunal is team work and requires corresponding social skills. When acting as counsel, I always evaluate whether the candidate will fit into the arbitral team, ensure that the arguments of the appointing party are heard (n.b.: without being partial) and be sufficiently involved in the decision-making process.

What are the advantages and What do clients look for in an disadvantages of arbitration effective arbitrator? compared to litigation? An effective arbitrator must not suffer from due process paranoia. Clients turn to arbitration because they want to have their dispute decided. It is the fundamental task of the arbitrator to render an enforceable decision, swiftly and efficiently. Justice delayed is justice denied. Of course, each arbitrator, particularly the presiding arbitrator, must safeguard the fundamental procedural rights of the parties, ie, the right to be heard and the principle of equal treatment of the parties. However, those principles do not prevent the tribunal from rendering (procedural) decisions, which aim at helping the parties to focus on the relevant facts and at structuring the decisive legal questions. In my experience as an arbitrator, parties are often grateful for an early case assessment by the arbitral tribunal. This allows the parties to focus on the issues that the tribunal considers relevant and to assess their prospects of success. With that knowledge, the parties have a better chance to evaluate options for a possible settlement. In any case, an early case assessment increases efficiency since the parties can concentrate on the relevant issues instead of submitting unnecessarily long briefs. Effectiveness comes with experience. An arbitrator, particularly the presiding arbitrator, must know how to organise and run the proceedings. Project management is part of the job. Furthermore, an effective arbitrator needs to possess the

Arbitration has two major advantages: first, the parties appoint the arbitrators and accordingly have the composition of the “judge’s bench” in their own hands. The parties, thus, can ensure that the most suitable arbitrators decide their dispute. Second, the principle of party autonomy, which underlies arbitral proceedings, enables the parties to structure the proceedings according to their very needs, ensuring efficient proceedings and saving time and costs. Every arbitration is only as good as the arbitrators the parties choose. In case of an unfortunate choice, it can turn out to be a disadvantage that there is only one instance in arbitration proceedings. Furthermore, arbitrations tend to be more expensive than state court proceedings – at least in Germany where the reimbursement of the opponent’s lawyers’ fees is capped in state court proceedings. But by and large the rule is the more relevant a dispute is for a party, the more a party should consider arbitration.

are. Now – four years later – the DIS has initiated a “practice lab” in which, inter alia, the experiences with the DIS Rules 2018 are discussed and potential for improvement is identified. I was involved both in the initial working groups as well as now in the practice labs. Through this involvement, I have gained considerable insight into the practical experiences of users, arbitrators and colleagues.

To what extent should more b e d o n e to i m p rov e t h e transparency of arbitration proceedings?

A call for transparency is justified in matters that involve public interests. While public interests are frequently touched upon in investor-state arbitrations, this is rarely the case in commercial disputes – perhaps except for certain anti-trust and IP disputes. In relation to commercial arbitrations, the principle of party autonomy – one of commercial arbitration’s most important features – commands to leave the decision regarding transparency to the parties. The dispute belongs to the parties, not to the public or the press. Thus, it is for the parties to decide if and to what extent they want the public to know about the proceedings and the content thereof. I am reluctant to deprive the parties of this advantage. This comes, however, at a price. In Germany, for example, one hardly finds any case-law regarding post M&A disputes since these are usually decided by arbitral tribunals and, therefore, not published. The situation is somewhat different when it comes to investor-state arbitrations. Here, the public has a right to know what the public entity has done or is accused of. In that regard, much has been done in the past years to enhance transparency. For example, in 2014, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration were published.

How has your experience as a member of the German Arbi- What role do you see thirdtration Institute (DIS) enhanced party funding playing in arbiyour role as a dispute resolu- tration moving forward? tion specialist? Internationally, I believe that third-party The German Arbitration Institute published new rules in 2018 (DIS Rules 2018). In advance, various working groups collected feedback from the users as to what the requirements of modern institutional rules

whoswholegal.com/thought-leaders

funding will play an important role in highvalue proceedings, be it investor-state or commercial arbitrations. In the past decade, we experienced a considerable growth in the number of investor-state

arbitrations. This development will continue. Also, commercial arbitrations tend to become more complex and the average amount in dispute increases. Both fields are therefore lucrative for third-party funders. From the German perspective, thirdparty funding still has a way to go. In the past years, many new funders entered the German market. Currently, the funders, however, seem to focus more on mass proceedings before state courts. A reason could be that some funders still lack the necessary know-how or that – in Germany – parties to high-volume disputes prefer to finance arbitrations themselves.

Why did you decide to set up your own firm?

Conflicts of interest are the arbitrator’s worst nightmare. Therefore, some colleagues decide at a certain point of their career to give up their legal practice and to work exclusively as an independent arbitrator. When I founded my own boutique law firm, I felt still “too young” to solely focus on my work as an arbitrator. I take great pleasure in going into battle as party representative for my clients. I did not want to have to choose between the two roles. My law firm now allows me to have the best of both worlds: I am (relatively) free with regard to conflicts of interest. And I can

still help my clients to enforce their rights before arbitral tribunals or state courts.

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

In the last two years, we have all experienced changes we never imagined before – be it a pandemic or a war in our close neighbourhood. With that in mind, I notice even more often than before how extremely privileged I am in life. When it comes to my law firm, I would be grateful if clients continue to trust in our expertise and professionalism and thus entrust us with challenging cases.

Peers and clients say: “A very strong arbitrator with wonderful business acumen” “She is very active with case management and strong as counsel” 18

Arbitrators & Counsel

events

Visit www.IPBC.com to see our upcoming events schedule.

IAM are excited to continue hosting ground-breaking digital events designed to ensure the IPBC message of sustainable and strategic IP value creation continues to be heard worldwide. Our virtual events portfolio allows for the widest reach of networking, benchmarking and learning opportunities within the IP community. Where it is safe and practical to do so, we plan to host live conferences across key regional markets in 2021 and beyond.

John Beechey

Arbitration Chambers London www.arbchambers.com

jb@beecheyarbitration.com Tel: +44 20 7167 2040

Biography The founder of Clifford Chance’s international arbitration practice and a two-term president of the ICC International Court of Arbitration, John was appointed CBE for services to international arbitration in 2016. Now a member of Arbitration Chambers based in London, he has served as an arbitrator on more than 100 arbitral tribunals in commercial and investor-state arbitrations, both ‘ad hoc’ and under the rules of many of the world’s leading arbitral institutions, over the course of his career.

Arbitrators & Counsel

What is the key to succeeding as an arbitrator across multiple arbitration institutions in a wide range of jurisdictions? The majority of arbitral appointments come from party referrals or as a result of a selection process agreed between the parties rather than by way of direct appointments by an arbitral institution. All of the institutions have their particular characteristics and idiosyncrasies. For some arbitrators, the involvement of a particular institution may encourage them to take an appointment; for others, it might give reason to pause. All of the institutions will tell you that they value diligent case management and the prompt delivery of awards. Certain institutions provide support and assistance of the highest quality to their tribunals while others do not. The relationship between arbitrators and institutions and, it must be said, between arbitrators and parties, is changing, and in some cases, not necessarily for the better. Having experienced the practice of international arbitration over time in the roles of counsel, administrator and arbitrator, it is a concern of mine that a subject that ought squarely to be addressed is all too often ducked.

As a former president at the ICC International Court of Arbitration, what would be the advantages and challenges of developing international accreditation procedures for arbitral institutions based on common standards? To be candid, I think that there are more important issues on which to focus. There are such significant differences in case load, case management techniques,

geographical spread (and presence) and maturity between the institutions, which hold themselves out as offering arbitration services around the world that I doubt that a ‘tick box’ accreditation approach would serve a useful purpose.

To what extent can investment arbitration claims be pursued under EU law?

This is ought properly to be the subject of a full chapter or article; it is worthy of more than a few lines. For present purposes, and on the basis that it is very much the expression of a summary personal view, it has to be accepted that, for all intents and purposes, a combination of the weight of political sentiment in the European Commission and Parliament and powerful, but not always well-informed, if not wilfully uninformed, lobbying of those bodies by NGOs and others has brought about the end of ISDS in the form of intraEU BITs. A thorn in the side of Brussels remains the Energy Charter Treaty to which the EU is a signatory in its own right and thus has treaty obligations of its own to respect. A German court has recently declined to declare a claim brought under the ECT by an Irish wind power investor against Germany inadmissible on the ground that it is an intra-EU dispute. It remains to be seen whether that is the last word on the matter.

Do you envisage the emergence of any new arbitration seats that will rival those currently most popular? Rather than the emergence of new seats, I think the more significant impact upon the business of the established and most regularly used institutions is likely to be

that brought about by geopolitical developments. Will Russian disputes come to London or Stockholm as regularly as they did before the invasion of Ukraine? Will the changes in Hong Kong see more business going to Singapore? Are the established regional centres likely to grow at the expense of the mature international arbitral institutions, particularly those which must grapple with the effects of the imposition of sanctions of which some of the regional institutions are free?

What do you think will be the greatest challenge facing the next generation of arbitration practitioners and how should they equip themselves? Recognition of the fact that the practice of international arbitration is now big business on a global scale. While fierce competition to win work affords potential clients the option to apply pressure to reduce the level of fees, an international arbitration mandate will frequently be a big-ticket revenue earner for the successful firm. It is a long time since I have dealt with costs submissions that did not run into the millions of dollars or euros or pounds. There are many more arbitration practitioners and arbitrators chasing the available work and appointments than ever there were even 10 years ago. Management of expectations means that not everyone who wishes to practice in this area will be able to do so and for those who do succeed, the best advice has to be ‘do not be in too much of a hurry’. Quality will always show through and a number of years with a proven track record as counsel in international disputes is, I believe, still the best way to kickstart a career as an arbitrator.

Peers and clients say: ““He is absolutely one of the top arbitrators in commercial and investment arbitration” “John is truly outstanding”

whoswholegal.com/thought-leaders

Lisa Beisteiner

Zeiler Floyd Zadkovich Vienna www.zeilerfloydzad.com

lisa.beisteiner@zeilerfloydzad.com Tel: +43 1 890 10 87 0

Biography Lisa Beisteiner is a founding partner with Zeiler Floyd Zadkovich and an expert in international dispute resolution, with a strong focus on international arbitration. Lisa has extensive experience advising and representing clients in all aspects of commercial and investment arbitration under various rules, particularly in energy, construction and post M&A disputes. She regularly sits as arbitrator (notably in ICC, VIAC and DIS proceedings, as well as on ad hoc panels). Lisa is a graduate of the University of Vienna (Dr.iur.), and a certified mediator.

Arbitrators & Counsel

What motivated you to specialise in dispute resolution?

Conflicts are inherently human at both micro and macro level. I’ve always found dispute resolution fascinating and the human psychology behind it, leading me to also train as a mediator. Where two different constructions of reality clash, the law is required to provide a solution, and working in disputes utilises the art of building legal, psychological, communicational strategies to best get one’s side’s perspective to prevail, which I find captivating.

What did you find most challenging about entering arbitration practice?

Working in arbitration is a privilege. This is a uniquely dynamic field of law and practice, with new rules emerging at a fast pace and with an ever-growing body of international case law and legal writing. Unlike other practice areas, even some of the fundamental legal concepts underpinning the world of international arbitration are still in flux. Many an important rule is unwritten, eg, when it comes to the selection of arbitrators, a good grasp of human psychology will play a preeminent role. Most importantly, however, each arbitration case is different, be it in terms of the factual or legal issues that arise or in terms of the people one encounters, as not least expressed in the different styles of counsel’s advocacy (or tribunal’s case management). This is an exciting blend, and it offers the opportunity to constantly learn and grow. On the flip side, this mix may appear overwhelming to those new to the field. I think it helps to embrace the idea that excelling as an arbitration counsel and, even more so, as an arbitrator is a journey rather than a destination. And it is certainly an exciting and rewarding journey.

What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for experienced lawyers?

First, experience is key. Getting substantive exposure in high-profile cases as counsel will be one important cornerstone. Also, it is important to let institutions, as well as your peers, know that you are ready and eager to take on responsibility, ie, act as an arbitrator yourself. Proactively reach out to institutions and present yourself. Also, specialisation may be helpful, get immersed in your field of law or practice, publish your research, tie your name to your field of expertise. Also, mentors play a key role – find yourself one and convince her of your talent and determination. From the experienced lawyers’ perspective, more established arbitrators can work towards more diverse tribunals – also in terms of seniority on the arbitrators’ panel. When appointing counsel make sure to think outside the box when putting together the long list of candidates, considering whether it may be a strategic advantage to have the one arbitrator on the panel who, as a younger practitioner, takes your case – even if not the 100 million dollar case – very seriously.

In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation? Arbitration has generally become progressively greener over the past few years, but without a doubt, the covid-19 pandemic has expedited the progress. As proceedings were to find alternatives to in-person hearings, online hearings took over and have contributed a great deal to the practice becoming greener – fewer flights, less carbon emissions, less consumption.

Additionally, in many cases submissions and filings can be done online, which cuts back substantially on paper waste. It slowly sinks in that conducting arbitrations in line with available protocols on “green arbitration” is part of the musthave skill set of good case management.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

First, let me note that I think diversity, both on arbitrators’ panels as well as in counsel teams (at all levels of seniority), is vital for ensuring the quality and excellence of the process. Even today, despite a proliferation of events and initiatives, things are moving slowly and there is still much to be done – even when speaking of gender diversity only. The way I see it, this is a challenge that needs to be addressed not only among the arbitration community but in communication with clients, potential clients and the interested public.

What advice would you give to those considering a path as a full-time arbitrator? Personally, I very much enjoy the change of perspective between counsel and arbitrator work. It enables me to see my work as arbitrator though the eyes of the parties – and, of course, vice-versa. Parties and clients will equally benefit from a better understanding of the responsibilities and problems arbitrators face, as well as of what works before a tribunal and what does not in terms of case presentation. After some decades of playing on both sides of the team, however, it may certainly be rewarding to devote all your professional time to arbitrator work. This also frees you from many a conflict of interest.

Peers and clients say: “Lisa is probably the best young arbitrator in Austria” “She is procedurally excellent” “She is a very effective practitioner” “She is a real star for arbitration” whoswholegal.com/thought-leaders

Massimo Benedettelli

ArbLit Studio Legale Milan www.arblit.com

massimo.benedettelli@arblit.com Tel: +39 02 8425 4810

Biography Massimo Benedettelli is name partner of Arblit and full professor of international law at the University “Aldo Moro”, Bari. He also co-holds the course on “Dispute Resolution in a Globalized World” at Bocconi University, Milan. In January 2022, he delivered a course at the Hague Academy of International Law on “Powers in International Arbitration between Party Autonomy, Arbitral Authority and State Sovereignty”. Upon designation of the ICC World Council, Massimo has been appointed Italian member of the ICC Court of Arbitration to serve for the 2021–2023 term. He is also a member of the Arbitration Council of ACIAM, Atlanta (GA).

Arbitrators & Counsel

What inspired you to pursue a legal career?

I had no intention of becoming a lawyer. In fact, I initially studied political sciences with a view to enter into diplomacy. Meeting Paolo Picone, one of the leading international law scholars in the world, was a turning point. I discovered law as a social phenomenon where politics and logic intermingle. This raised my academic interest in the topic. The profession came later.

as a means to open the arbitration path to SMEs, consistently with access-to-justice requirements.

What are the advantages of arbitration compared to litigation? The New York Convention, the New York Convention and the New York Convention: worldwide enforceability of arbitration agreements and awards.

What motivated you to special- In your experience, what ise in arbitration? advantages can clients benefit Its unavoidable conflict-of-laws (and juris- from in hiring a multilingual dictions) dimension, whatever the supporters arbitrator? of a “transnational” or “truly international” approach to arbitration may think.

Is that really an advantage? If I had my own interest at bar in a dispute submitted to arbitration, I would rather focus on the arbitrator’s qualities as to legal skills.

Some practitioners report that, post pandemic, arbitration costs are deterring parties You have enjoyed a very disfrom bringing matters. Is this tinguished career so far. What your experience? would you like to achieve that Not really, my workload has increased. As you have not yet accomplished? a matter of fact, the “discovery” of “virtual” hearing techniques, which reduces costs, may justify recourse to arbitration even more than before.

Finding time to finally learn a transcription for piano of the adagio from Bruckner’s VII Symphony I recently discovered.

What is the best piece of advice Sources report that the promi- you’ve ever received? nence of third-party funding Always act as if your behaviour could (TPF) in arbitration cases is now become a rule of universal application (or, increasing the scrutiny sur- to put it otherwise, treat your neighbour as rounding award enforceability. you would wish others treat you): you know, How do you think this could Kant is still so modern … impact award enforceability? I do not see a problem as long as disclosure duties are complied with. Rather, I see TPF

Peers and clients say: “Massimo is widely known and highly regarded in the arbitration world” “He is incredibly impressive and persuasive”

whoswholegal.com/thought-leaders

George A Bermann

Columbia University School of Law New York www.georgebermann.com

gbermann@law.columbia.edu Tel: +1 609 924 6149

Biography George Bermann is both professor of law at Columbia Law School and active arbitrator in international commercial and investor-state disputes for 40 years. Among other things, he is founding member of the Governing Board of the ICC International Court of Justice, head of the Global Advisory Board of the New York International Arbitration Center, director of the Center for Dispute Prevention and Resolution (CPR) and chief reporter, ALI Restatement of International Commercial and Investor-State Arbitration.

Arbitrators & Counsel

Are you noticing any sectors undergoing on uptick in arbitration? If so, why?

of arbitrator, but will be very well served by others. Moreover, the prospective arbitrators most likely to have conflicts are from major law firms, most of which can sustain the loss of a case now and then. Any remedy would be worse than the disease.

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

As a result of the shift towards virtual arbitration, would you say that some of the London principles are less of a priority for arbitration centres looking to further their development? If so, how and why have they A common complaint about changed? international commercial There is no difference from a legal point of arbitration is that the process view. Remotely conducted arbitrations still is no longer efficient. What have a seat. The seat’s arbitration law is can arbitrators do to ensure fully applicable and the courts of the seat that the arbitration proceeds will still retain exclusive jurisdiction to smoothly and without unnec- entertain set aside actions. There are pracessary delay? tical differences, however. Convenience-

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

Energy disputes, while never negligible, are skyrocketing in numbers. The amounts in controversy in the field are almost invariably high enough to warrant attempts at arbitration. Moreover, the market is a highly volatile one and accordingly ripe for disputes. Energy also remains the sector with the most prominent sector-specific investment protection instrument, the energy charter treaty.

Arbitrators need to make efficiency considerations a priority. They can emphatically advise counsel that dilatory conduct on their part will produce consequences in the allocation of costs, and deliver on the admonition. They can also make the grant of procedural relief contingent on the grant of a corresponding benefit to its opponent. Arbitrators are well advised to avoid due process paranoia, though doing so may entail risks to the award. This is not an easy task, but it would be a highly productive one.

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?

The pool of highly able arbitrators is sufficiently large that a perfectly suitable conflict-free arbitrator can be found. A party may not be able to have its first choice

I see an ever-growing one and particularly valuable in enabling small and mediumsized enterprises to participate.

The strides in favour of diversity have been dramatic in recent years, more so than might have been anticipated. However, the progress being made is largely genderrelated, rather than, for example, regional or racial. This is understandable, given the extremely large numbers of women in the pool. Achieving results on other diversity fronts would need an exponential increase in numbers of candidates. This should nevertheless be undertaken.

related advantages and disadvantages of a seat cease to matter. An excellent example of an advantage is the elimination of visas and other entry requirements.

It seems that practitioners are increasingly competing on fees for arbitration matters. Is there a danger of a race to the bottom in terms of fees? How could this be avoided?

I do not think there is great danger. There are serious limits on the willingness on the part of firms to lower fees and serious limits on the willingness of large players to retain “discount” firms.

More and more practitioners are leaving firms to set up their own arbitration boutiques. What are the main drivers for this? I see two main reasons. The first is avoidance or mitigation of conflicts. The other is a greater sense of professional autonomy.

Peers and clients say: ”He is the dean of international arbitration” “George is very well regarded and in high demand” “A leading academic and arbitrator” “A legend in the field – every accolade is well deserved” “He is highly recommended for commercial and investment arbitration” whoswholegal.com/thought-leaders

Rouven F Bodenheimer

BODENHEIMER HERZBERG

Cologne www.changing-perspectives.legal rfb@bodenheimer.legal Tel: +49 221 291 90 6 0

Biography Rouven Bodenheimer is co-founder of BODENHEIMER HERZBERG, a law firm specialised in international dispute resolution. He has acted in many domestic and international arbitration cases, as both party-counsel and arbitrator. He also advises on conflict avoidance strategies and acts as mediator in complex commercial matters. Rouven has significant experience in institutional and ad hoc arbitration, dispute adjudication and mediation. He is a fellow (FCIArb) and chartered arbitrator (C.Arb) of the Chartered Institute of Arbitrators.

Arbitrators & Counsel

What do you enjoy most about practising in the arbitration space? One of the aspects I enjoy the most about arbitration is that it acts as a meeting point of different legal cultures – a place of convergence for diverse legal systems. It allows practitioners from different backgrounds to create new, mixed practices by combining different elements of, eg, common law and civil law traditions. Crafting a unique solution that is specific to the facts and circumstances of each case along with my foreign colleagues is always a very rewarding and interesting experience.

You have a highly international practice. How are you seeing demand from different jurisdictions change?

The demand for arbitration has been growing steadily over the last few decades all over the world, especially among Asia-based companies and in Asia-related transactions. This correlates with the increasing number of cases with Asia-based arbitral institutions and the increasing number of cases that are administered by them. Further, the number of sophisticated colleagues from Asia has increased as well. Interestingly, whereas in the past the majority of Asian parties tended to be in the position of respondent, I see now more and more cases where continental European parties are put in the position of respondent.

dispute resolution clause which caters to the complexity of the construction sector would go a long way in minimising risks for clients. A completely different approach I have been promoting for years is to shift from a controversial understanding of contractual relationships to a more partner-like oriented spirit among all stakeholders in a large construction project. Implementing respective structures and a joint understanding at the outset has proven to return significant cost savings and the greater satisfaction of all parties involved.

In your opinion, are clients increasingly becoming persuaded by the benefits of alternative dispute resolution?

While costs and delay may still be considered as an issue by our clients towards arbitration, they are more and more getting used to alternative dispute resolution (ADR). Especially in light of growing international transactions and the cross-border disputes arising thereof, ADR methods that are far more flexible than court litigation giving the parties more control over the process and the results, are deemed favourable. One of the benefits that our clients get from ADR is the opportunity to preserve a business relationship with negotiation or mediation. The option to keep all proceedings confidential gives the parties a chance to focus on the outcome of a dispute without any concern for public impact.

What are the most common What inspired you to set up your sources of construction disputes own firm and what challenges and how do you think clients did you face? can minimise the risks of them One of the things that inspired me to start a occurring? law firm was the idea to create a one-stop Some of the most common sources of construction disputes are conflicts over quality (of the construction itself or the materials used), timeline delays and abandonment. This is in addition to the standard disputes over payments. While delays in timelines are an inevitable part of the construction sector, a sharper focus on removing ambiguity from the contract at the very beginning would be a good place to start. A properly drafted “scope of works”, along with a well-defined payment clause and a

destination for complex disputes. Our international and specialised sources in the firm allow us to act not only as party’s counsel in litigation, arbitration, and mediation cases and other ADR proceedings, but also to serve as arbitrator, mediator or in other capacities, in all kinds of international disputes – without conflicts like in a larger firm. I would say that keeping up with technology is one of the bigger challenges that we face. It is constantly evolving, with many legal technology solutions being introduced every year. It takes

time to test these solutions and identify which technology solutions work best for us.

What changes are you seeing in terms of competition in the market?

One of the recent changes in the market has been a healthy increase in standards of a work-life balance. Over the past few years, law firms had developed a notorious habit of engaging their younger associates in a ‘sweatshop’ sort of environment. At BODENHEIMER HERZBERG, we believe in ensuring that our younger associates have the time to not only give their best at work but to also enjoy the best of life outside work. The number of mothers in our team and the encouraging spirit to allow for individual concepts of work-life allocation reflects this spirit.

What are the key challenges younger construction lawyers may face in their practice and how can they overcome these?

One of the more challenging tasks for young lawyers is to harness technology and sustainability in their field of practice. With respect to construction, young lawyers will need to consider integrating technology and intellectual properties into construction projects while incorporating clean energy and green initiatives. I do not believe that there is any straight-jacket formula to tackle these challenges. What I can suggest is that young construction lawyers keep in mind that given the growing environment concerns, sustainability is key and that there are no shortcuts in that regard. Hence, a profound dedication to detail and to technical complexity is vital.

Last year you mentioned you would like to accept more teaching assignments to share your experiences with younger practitioners. Have you found this a valuable experience? Interacting with younger practitioners is always an enriching and rewarding experience. They have a penchant for trying something new, which allows them to solve problems in a more creative way that can end up as a positive solution for a client.

Peers and clients say: “Rouven always provides practical and in-depth advice” “His approach is creative and assertive” “He’s a big name with an expanding practice” whoswholegal.com/thought-leaders

Stavros Brekoulakis

3 Verulam Buildings London www.3vb.com

sbrekoulakis@3vb.com Tel: +44 7958471980

Biography Professor Brekoulakis is the director of School of International Arbitration, Queen Mary University of London and an arbitrator at 3 Verulam Buildings. Professor Brekoulakis has extensive experience as arbitrator in over 70 arbitrations in both investment and commercial disputes under all major arbitration rules. He has been named a Global Elite Thought Leader by WWL and praised as a “reigning thought leader in the arbitration space” and “one of the great minds in the international arbitration world” with “a seemingly encyclopaedic recall of jurisprudence”.

Arbitrators & Counsel

What inspired you to pursue a career in international commercial arbitration?

Two things: the first is that international arbitration tends to attract talented individuals. It is such a pleasure to have the opportunity to work with colleagues who are intelligent and have an international outlook and a great sense of humour. The second is that international arbitration is currently one of the most exciting and important fields of international law. It is exciting because it cuts across several legal disciplines, including private and public international law, substantive and procedural law, international economic law and human rights. And it is important because it frequently deals with issues which implicate the public interest and governmental policy. As an arbitrator, I am privileged to participate in the resolution of large disputes involving international corporations, governments and state entities. As an academic, I am fascinated to be able to influence, with my scholarly work, the doctrine and policy of the law.

public lectures and conferences, many distinguished colleagues have introduced excellent ideas to increase the efficiency of arbitration proceedings. For example, David Rivkin has unveiled the Town Elder rules, which focus on the resolution of matters on an issue-by-issue basis, while Lucy Reed has proposed that the procedural timetable includes an in-person meeting (a “retreat”) for the tribunal to study the file with the goal of arriving together at targeted directions to the parties for the hearing. More recently, Sundaresh Menon called for “post-pandemic reinvention of procedure”. While it is common ground that arbitrators and parties should not apply the same procedures to a variety of matters for which they may not be suited, proposals for procedural innovation do not always find their way to practice. I wonder whether case management in arbitration needs less innovation and more time and dedication on the part of arbitrators. Arbitrators need to start reading the file and develop a good understanding of the case from the outset. They also need to be alert throughout the proceedings and quickly address matters as they arise. In my view, the most effective techniques in proceedings are diligence and common sense.

Many construction sites have been closed down, and where construction works continue, they are experiencing significant slowdown in supply chains for materials, and labour shortages due to illness, selfisolation and travel restrictions. Even when construction works resume, contractors will have to abide by new health protocols which will involve severe restrictions in the number of workers that can be on site. These restrictions will significantly affect the level of productivity and the ability of contractors to mobilise manpower, and have already caused significant disruption and delays. The second are disputes arising out of concession contracts concerning the operation of infrastructure projects. Because the pandemic has seriously affected peoples’ ability to travel and commute both internationally and domestically, operators of, for example, airports and highways have seen a dramatic decline in their earnings which has left them exposed to debts from financing the projects. Operators are now filling arbitration claims against states and state entities aiming to recover part of the substantial loss of profit they have experienced.

There are two types of covid-19 related disputes which have already given rise to construction arbitrations. The first are disputes concerning delay and disruption which have significantly affected the construction industry. We are already seeing evidence that construction work is declining at the steepest rate since 2009.

institutions. My practice has been busy and constantly growing. My goal now is to consolidate my experience and work on my main expertise, namely disputes in major infrastructure and investment projects that arise either through an investment treaty or the underlying construction and concession contract.

In what ways have you noticed tribunals becoming more sophisticated and entertaining What are your goals for praca greater variety of techniques You are highly regarded for tice in the next five years? in proceedings? your expertise in handling mat- In the past 10 years that I have practiced Proceedings in international arbitration ters concerning the construc- exclusively as arbitrator, I have been have become more complex, and often tion industry. Which types of privileged to be appointed in commercial challenging, nowadays. Counsel tend to construction disputes do you and investment treaty disputes in a wide make more procedural requests and appli- anticipate arising in the future range of jurisdictions and governing laws cations in the course of an arbitration (e.g. due to covid-19? under the rules of all major arbitration determination of preliminary matters, security for costs, applications to exclude evidence, several requests for document production, introduction of new claims and counterclaims). As a result, many procedural issues often become unnecessarily contentious, eg, timetables, mode of hearing, hearing bundles. Speaking in

Peers and clients say: “He is excellent and very active in construction work” “Highly recommended for his impressive experience in commercial and investment arbitration” “He has a complete command of the applicable law and of best practices in international arbitration” “He is a critical and novel thinker as an academic and pragmatic as arbitrator” whoswholegal.com/thought-leaders

Cavinder Bull SC

Drew & Napier

Singapore www.drewnapier.com cavinder.bull@drewnapier.com Tel: +65 6531 2416

Biography Cavinder has over 25 years of experience in international arbitration acting as counsel in both commercial and investor-state cases, and as arbitrator in ICSID, PCA, ICC, SIAC and LCIA arbitrations. Cavinder is also vicepresident of the SIAC Court of Arbitration, a governing board member of ICCA, vice-president of the Asia-Pacific Regional Arbitration Group, and is on the World Bank Sanctions Board. Cavinder studied law at Oxford University and Harvard Law School. He is called to the Bar in Singapore, New York and England.

Arbitrators & Counsel

What do you enjoy most about working in international arbitration?

The work is incredibly diverse and interesting. One gets to be involved in cases from all over the world. One also gets to interact with a range of lawyers as co-counsel or as opposing counsel, as well as to appear before arbitrators for many different legal systems and traditions. This makes for an interesting mix that never ceases to engage.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

I think the international arbitration community has done reasonably well in trying to improve diversity. Much more remains to be done, of course. In the area of gender diversity, I think there is now a very deliberate push within the community as a whole to balance up. We see more women in leadership positions in arbitral institutions and in arbitrator appointments, gender diversity is almost always part of the conversation. In numerous cases I have been involved in, it has been the crucial factor in deciding on the chair of a tribunal from a shortlist. However, we have achieved much less in the area of geographical diversity. We need to do more to ensure that different regions of the world are meaningfully represented in the work of the international arbitration community.

Do you see a growing interest in clients preferring arbitration over litigation?

Absolutely. I find clients to be more and more knowledgeable about international

arbitration, its benefits, and are able to differentiate between arbitration and litigation in a fairly sophisticated manner. They know how to choose horses for courses and this has allowed arbitration to play a more significant role in dispute resolution in commercial contexts.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree?

important is the arbitrator’s experience and standing.

Has the arbitral discretion been limited by due process?

Only to the extent that it is necessary. Due process is vital to maintaining the credibility of the international arbitration system. But experienced arbitrators are well able to provide due process to parties without losing the flexibility that is one of the hallmarks of arbitration.

I understand the very real concern that users have with arbitrator independence. It is absolutely crucial that this concern is addressed or it will affect the confidence that users have in the entire arbitral process. However, I don’t think the standards are that opaque. There is more than sufficient law and guidance such that arbitrators know what they should do and by and large I find that arbitrators tend to err on the side of disclosure to ensure that parties have confidence in the arbitral panel that is appointed. While there are instances where this has not been done, there is no doubt that the arbitration community takes the issue very seriously.

Should tribunals be more bullish about corruption defences and examining evidence for corruption in proceedings?

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?

I’m just happy to take each case as it comes, and to contribute in some small way to resolving disputes.

I think so. Certainly in investor-state cases, this is a fundamental issue. It does not help the reputation of international arbitration for arbitrators to ignore evidence of corruption. Not only is such evidence often legally relevant but its consideration is also in line with expectations of the users and those affected by the arbitral decisions.

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

I don’t think the shift towards virtual arbitration really influences the selection of arbitrators that much. The geographic location of an arbitrator may be an indication of how much she or he knows about a particular commercial context. Other than that, it doesn’t really matter. What’s more

Peers and clients say: “He is without doubt one of the best lawyers I have worked with globally” “His clarity of thought is unparalleled and he is able to grasp extremely complex nuances in no time at all” “Cavinder’s advocacy is excellent” “He is completely accessible, reliable and executes superbly” whoswholegal.com/thought-leaders

Alfredo Bullard

Bullard Falla Ezcurra+

Lima www.bullardfallaezcurra.com abullard@bullardfallaezcurra.com Tel: +51 1 6211515

Biography Alfredo has been arbitrator, counsel and legal expert in more than 300 cases under ICC, ICSID, LCIA, PCA, IACA, among others. He is founding partner of Bullard Falla Ezcurra+, a boutique firm specialising in arbitration, economic regulation and competition law. He is a former member of the ICC Court of Arbitration and professor at various universities in courses such as arbitration, law and economics and legal skills. Previously, he presided over the commission that drafted the current Peruvian Arbitration Act.

Arbitrators & Counsel

What attracted you to a legal career?

When I was young, I wanted to study literature to learn how to tell a story. Law, and specifically arbitration, whether as a litigant or as an arbitrator, is a storytelling activity. The truth is discovered through evidence, by turning it into a persuasive and convincing story. In doing so you resolve controversies, and help create trust, which is necessary to develop business and, in general, every human activity. Then, I understood that through law I could apply creativity to resolve disputes through interdisciplinary work.

How has your practice in arbitration developed over time?

Arbitration allows you to learn from every imaginable activity. You learn about engineering, public policy, technology, accounting, economics, business administration, etc. Fortunately, my practice is very diverse. At the beginning of my practice, mostly, I saw cases as counsel. However, my current practice focuses on being counsel, arbitrator, and legal expert. Most of my cases are related to investment arbitration, construction, energy and oil and gas. Thus, not only does my practice now expand constantly, but also, I interact with highly considered peers, arbitrators, and counterparties, which allows me to learn something new in every case. Evidently, my practice has evolved and now includes different jurisdictions and subject matters, which shows that even in a position of leadership at my firm, I am able to learn and see diverse cases as time goes by.

Clients also look for an empathetic arbitral tribunal, who put themselves in their shoes and handles the case efficiently. Finally, they look for good service. In arbitration the parties go through the stress of a “fight”. Part of the arbitrator’s job is to help the parties “face the fight in peace”. One of the greatest causes of stress is the loss of money and time. That is why good case management is essential. An arbitral tribunal does not only manage a legal problem. Arbitrators manage human problems and part of what is sought is to be sensitive to emotions. Many times, the feeling that there was justice in the final decision depends more on how the parties felt during the arbitration than on what was finally decided.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

With the pandemic, many tribunals and arbitration centres have implemented the use of new tools. The use of electronic platforms that were previously used exceptionally to deal with an emergency has become the natural way of notifying an award or holding a hearing. The pandemic has forced us to become more sophisticated in our use of technical resources. But I think there are other sophisticated but less visible changes that are also present: the use of psychological techniques to detect if witnesses are lying or to manage the quality of a deliberation in a tribunal are tools that are more widely used today and are available to arbitrators.

What do clients look for in an More and more practitioners are effective arbitrator? leaving firms to set up their own Above all, they are looking for someone arbitration boutiques. What are who understands business and the the main drivers for this in your economic and technical activity involved. experience? Any legal dispute is, first and foremost, a commercial dispute. Clients look for arbitrators who understand the real problem that needs to be resolved and not just the formal application of legal norms. Thus, you need to understand economics and business to understand how a contract works. Or you need to understand engineering to know why a building was not finished on time. Law is important, but it is not the most important thing in the eyes of the client.

whoswholegal.com/thought-leaders

I have worked in large and more traditional firms in the past. I learned about organisation and efficiency. However, I think that the main drivers to set up an arbitration boutique is because in big firms, innovation is more difficult to pursue as they are less flexible to change. A new and small firm, very specialised, provides a space to be different and to create new ideas. Also, if you want to work as an arbitrator, large firms tend to generate too many conflicts of interest.

Thus, practitioners are pondering this also in the face of the technological era we have entered due to the pandemic. It has been proven that flexibility works, which may imply certain benefits for newcomers, who can set a firm without being forced to establish in a specific place.

What challenges did you face when setting up your own firm?

Starting a firm is like starting any business. The main challenges when you start are to position yourself in the market, look reliable to potential clients, build a team, and innovate to stand out. With hard work, we have been able to achieve all of this at Bullard Falla Ezcurra+. Creating a trademark that stands out from the others is difficult and being small sometimes generates mistrust. But, on the other hand, it gives you the opportunity to create more

personal relationships and to be closer to the client. Today, clients are looking for the trust created by personal relationship.

abilities and techniques. Our constant selfimprovement has, no doubt, been a main factor in why we have been able to grow and be recognised in the most important rankings worldwide.

What sets Bullard Falla Ezcurra+ apart from its competitors in the market? You have enjoyed a very disThe mission of our firm is to turn the tinguished career so far. What academic aspect into a profitable activity would you like to achieve that with practical impact. We seek to turn you have not yet accomplished? study and research into a professional and sophisticated product. We offer specialisation, innovation, and interdisciplinary work. It is a different model, and clients recognise it. It would have been difficult to do it within a traditional firm. I think this is what sets Bullard Falla Ezcurra+ apart from its competitors. We have economists in the team, and we work with psychologists and even with theatre directors, which provides a unique set of

I would like that Bullard Falla Ezcurra+ establish itself as a true international firm. We already handle cases, not related with Peru, in other countries. But we are working to consolidate this process. Bullard Falla Ezcurra+ has just opened its offices in Madrid to speed up the process and become a truly international Latin American firm with worldwide impact.

Peers and clients say: “Alfredo is an excellent arbitrator” “He is a very experienced construction arbitrator in public contracts” “He has a great ability for out-of-the-box thinking” 36

Arbitrators & Counsel

Latin Lawyer is your definitive source of news, analysis, and research from the Latin American legal community. It keeps you up to speed with the issues and trends that matter and provides the data and tools you need to operate successfully. Know more Stay informed with the latest regional news, research, and opinion, so you can advise with confidence, compete effectively and minimise risk. Find the edge Connect and collaborate with your peer group, clients and prospects. Get the full local market view to help you identify opportunities and build your business. Strengthen your team Understand trends and harness the tools and insight you need to guide strategy, streamline decision-making and keep your firm at the forefront in Latin America.

FIND OUT MORE: LL-SUBSCRIPTIONS@LATINLAWYER.COM

latinlawyer.com lbresearch.com

Olivier Caprasse

Caprasse Arbitration

Brussels www.caprasse-arbitration.com caprasse@caprasse-arbitration.com Tel: +32 495 20 50 70

Biography For over 20 years, Olivier Caprasse (born 1972, Belgium) has been involved in arbitration (commercial and investment) as an arbitrator, counsel and academic. He has sat (co-arbitrator, chairman or sole arbitrator) in a great variety of sectors. He is a member of the Brussels Bar, a professor at the Universities of Liège and Brussels, and a member of the ICC Court since 2016. Fluent in English and French, he has a good command of Dutch.

Arbitrators & Counsel

What inspired you to specialise in arbitration practice?

Arbitration is one of the rare legal fields where you can interact with people from all over the world. There might be different concepts, and procedural requirements, but there is always room for discussion for improvement, benefitted by a variety of experiences, traditions, and cultures. Fundamentally, it was also the desire to be able, as arbitrator, to contribute to the resolution of disputes and help international actors in that respect.

Could the rise of virtual hearings lead to a greater mixing of different legal systems and arbitration institutions? Remote hearings are only a tool (which can be efficient) but I think that room for flexibility with respect to references to different legal systems and institutions has always been present. Let us say that remote hearings, conferences, meetings have reinforced that trend and rendered the world smaller than it was before.

abroad with our sister organisations. I see with great satisfaction that this work has continued with more and more success under the leadership of the successive co-chairs who came afterwards.

What do you enjoy most about practising as an arbitration specialist?

I like trying to find the best path to conduct the arbitration, accounting for the input of the parties. Having to understand the parties’ respective expectations, trying to combine empathy with authority, not being afraid of taking decisions, are fascinating challenges (and all the more so in an international context). On top of that, I always like discovering new sectors or industries, the way they function and the stakes present. In sum, I enjoy the mix of law, facts and management, in an environment where, at the end of the day, be the actors big or small, you always find human beings.

In what ways does Caprasse Arbitration distinguish itself You are a co-founder of CEPANI f ro m co m p et i to rs i n t h e 40. What are the goals of the market? organisation and how has it I would simply say that the reason at enhanced your practice? the basis of the creation of Caprasse Our goal with the creation of this Belgian below forty organisation was to try help young arbitration practitioners to meet, develop their knowledge in a less formal arena and increase the sharing of knowledge between generations. Now that I have turned 50, I see with happiness how this contributed to help new generations to enter the arbitral community and develop their passion for arbitration. On a personal level, being co-founder and co-chair of that organisation helped me to broaden my network in Belgium and

Arbitration was to avoid to the maximum conflicts of interest as an arbitrator and benefit from complete flexibility as counsel, a role that I assume more rarely and always with other law firms. All that with the idea of being as available and responsive as possible.

arbitration world. More than twenty years of teaching and researching in arbitration further helped me concretely in my practice having had to study many different issues. Finally, being a professor implies having a true independence of mind, which is also an important quality for arbitrators and is valued as such by the market.

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? I have always considered that neither arbitration or mediation constitute panacea, so I would not speak about ‘danger’. Panacea is having the choice and sometimes to combine different ADR techniques in a dispute, which I have experienced several times. That said, there are and will always be disputes where parties do need or desire a decision, or are simply not able to find amicable settlements. Practice shows that arbitration is not declining, quite on the contrary in certain sectors.

What has been your proudest achievement to date?

To have been appointed chair of arbitral panels in important cases by co-arbitrators with extraordinary experiences, and whose work and legal papers had inspired me when I was a PhD researcher.

How does your role as a professor enhance your work in private practice?

I did my PhD on corporate law and arbitration (Bruylant, L.G.D.J, 2002). In itself, this led me to make my first steps in the

Peers and clients say: “Olivier is the star performer in Belgium” “He is a smart and hard-working arbitrator” “Olivier has profound knowledge and experience at an international level” “He is a highly experienced arbitrator and is capable at managing complex arbitral hearings” whoswholegal.com/thought-leaders

Cecilia Carrara

Legance – Avvocati Associati Rome www.legance.com

ccarrara@legance.it Tel: +39 06 93 18 271

Biography Cecilia Carrara has significant experience in the field of national and international commercial and investment arbitration proceedings, both institutional and ad hoc, acting as counsel and as arbitrator. She represents international and Italian companies in arbitration-related proceedings, such as recognition and enforcement proceedings, before national courts. Cecilia has been admitted to practise before the Italian Supreme Court. Cecilia is responsible for the Legance German desk.

Arbitrators & Counsel

What did you find most challenging about entering arbitration practice?

Arbitration is a niche market and this is particularly true for Italy, where I am based. Italy represents a relatively small legal market with its own legal traditions and it is not known for being a friendly seat for international arbitrations. This made it particularly challenging not only to enter the international arbitration practice but also to make it my main field of activity in a very competitive context.

What are the key skills required in commercial and investment arbitrations? Do they differ and how can younger practitioners acquire these skills? I believe the skill set is the same, even though substantive law issues and (less so) procedural ones may differ. These include familiarity with international law and the ability to work with colleagues and parties from different backgrounds, fluency in at least two languages, on top of the knowledge of the law applicable to the merits. The best way to acquire these skills is by studying in more than one legal system and practising with good senior mentors.

What do you make of the planned proposals for a multilateral investment court?

I struggle to see the possible benefits of the proposals for a multilateral investment court. The ongoing discussions are important and have already prompted some changes for the better, eg, on the point of transparency of investment arbitrations and a more rigorous practice in the application of the rules of conflicts of interests of the arbitrators. However, I believe that a multilateral investment court would be inherently contrary to the fundamental purpose of international arbitral tribunals in investment disputes and would not guarantee per se a higher level of legitimacy and/or neutrality and independence of the decisions. Especially not in a period of growing international

tensions among states and stronger nationalisms.

How does Legance - Avvocati Associati distinguish itself from the competition?

We are one of the three top Italian independent firms that provide full-service assistance. Regarding the arbitration practice, our competitors are either international firms with highly reputed international arbitration practices and an office in Italy, two or three full-service Italian firms with a good disputes practice or Italian arbitration/litigation boutiques. The second mentioned category is the one with which we feel more competition in the strict sense: in this category though we are the sole firm that is truly independent when it comes to networks and alliances with foreign firms, which makes it easier for us to team up with international colleagues of other jurisdictions and/or to sit as arbitrators avoiding conflicts.

Where, in your opinion, does the future of the practice area lie?

The future lies in the development of more international work, either by attracting more foreign clients or for our professionals by sitting more often as arbitrators in international cases, not necessarily connected with Italy.

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

There is still lots to achieve! Starting from case work, I have never sat as arbitrator in investment arbitrations. I would very much like to gain this experience. On a more general note, I would like to be in a position to support more younger meritorious colleagues in pursuing and accomplishing their legal careers. I also strongly believe in the social role of the legal profession and would like to be able to contribute to the improvement of the Italian legislation on international arbitration.

Peers and clients say: “Cecilia is brilliant for international arbitration” “She offers excellent, independent and thoughtful advice” “I highly recommend her” whoswholegal.com/thought-leaders

James H Carter

Independent Arbitrator New York www.carterarbitration.com

carterj@carterarbitration.com Tel: +1 917 363 5337

Biography James H Carter has served as chair of the Board of the American Arbitration Association, president of the American Society of International Law and member of the London Court of International Arbitration and is a member of the Court of Arbitration for Sport. He is a retired partner of Sullivan & Cromwell and retired senior counsel of WilmerHale and is ranked by Chambers USA (2022) in Band 1 of international arbitrators nationwide.

Arbitrators & Counsel

What attracted you to a career as an arbitrator?

In their then revolutionary book of 30 years ago, Dealing in Virtue, Professors Dezalay and Garth wrote of two paths by which individuals become international arbitrators, paralleling the two ways in which a man might become a medieval bishop: be born the son of a nobleman, with family background and social prominence (ie, in modern terms, attain name recognition, such as by becoming a domestic judge, or even a politician, and parachute into the role of arbitrator later in life without special preparation), or labour for years as a scribe or rising cleric (ie, an arbitration law specialist) and (perhaps) eventually become recognised and “promoted.” I was cast in the role of “scribe” as a young associate in a global law firm, where I began as an American litigation practitioner but was drawn at an early stage to arbitration by the opportunity to work on disputes in an international context, beyond the US court system. I was attracted by the flexible and often creative procedures, as well as the stimulating cultural variety. That evolved, with seniority, into opportunities to continue in the same field as an arbitrator, still enjoying the enormous variety of interesting work.

What are the advantages and disadvantages of having a global practice?

There are no material disadvantages to having a global practice, although your friends may embarrass you with their envy. The advantages are manifest.

Sources report that the prominence of third-party funding in arbitration cases is now increasing the scrutiny surrounding award enforceability. How do you think this could impact award enforceability? Third-party funding in its modern form will lead to more challenges to disclosures by

arbitrators, with questions regarding any, even any remote, connection between arbitrators and funders involved in cases before them. For those arbitrators who are members of law firms, that will involve in some cases inquiry about the involvement of others in their firms with funders participating in a case before the arbitrator and a potentially significant expansion of disclosure issues. That may mean fewer arbitrators will be comfortable retaining law firm affiliations.

prospective clients seem to have no difficulty in sorting out what they expect and what they will pay for.

What challenges do hybrid hearings present from an impartiality standpoint? In my experience hybrid hearings do not generally challenge impartiality, but care must be taken to avoid paying less attention to and perhaps giving less significance to remote testimony that may be more interrupted and harder to follow and in which the immediacy of human contact is absent.

In what ways have you noticed tribunals becoming more sophisticated and entertaining What advice would you give to a greater variety of techniques someone starting out as an in proceedings? arbitrator? Techniques must be shaped to fit particular cases, of course, and procedural innovations are not cookie-cutter solutions that are likely to change many arbitrations significantly. There will be sweeping changes as remote and hybrid and fully remote hearings become commonplace.

Do you see a link between the increasing awareness of clients regarding claims they can bring, and the current reluctance of states regarding investment arbitration?

Increasing numbers of large claims obviously is a major reason for state resistance to international arbitration today. Studies show that states don’t lose a disproportionate share of cases, but the total number and size of the cases they face are deterrents to states participating in and incentives for them to seek to reform the process.

One doesn’t easily “start out” as an arbitrator. If you want or are forced to pursue Dezelay and Garth’s second route, start early in your legal career by building a body of knowledge and experience as counsel. Find a job at a firm or organisation (there are many) that already make arbitration a part of their practice, and then let it be known (persistently, if necessary) that you want to learn about and do this work. Experience in domestic court disputes is useful, but don’t stop pushing to do arbitration, too. Let the friends you meet in practice know that you would enjoy party appointments, which is where your first cases are likely to come from. Persist, and you, too, could become a medieval bishop.

It seems that practitioners are increasingly competing on fees for arbitration matters. Is there a danger of a race to the bottom in terms of fees? How could this be avoided?

Competition is not a bad thing. Lawyers offer their services at varying prices, and

Peers and clients say: “Mr Carter is a key figure in the market” “James is a very well-regarded arbitration specialist” “He is an extremely bright and highly respected arbitrator” whoswholegal.com/thought-leaders

J Brian Casey

Bay Street Chambers

Toronto www.baystreetchambers.com jbcasey@baystreetchambers.com Tel: +1 416 861 8253

Biography B.Eng (Electrical); LLB; LLM (international business law). Fellow of the Chartered Institute of Arbitrators. Former international partner at Baker McKenzie and chair of the North American Disputes Group. Founder of Bay Street Chambers. Independent arbitrator since 2012. Chair of the ICDR Canada Advisory Committee. Member of the AAA Advisory Council. Adjunct professor at the University of Toronto.

Arbitrators & Counsel

What attracted you to pursue a career in international arbitration?

of arbitration practice in Canada regardless of whether the matter is domestic or international.

The exposure to the wider world, beyond the local courts was the main attraction, along with the chance to practise advocacy at an international level.

How has your positions in various groups such as the North American Disputes Group and fellowship at the Chartered What recent challenges have Institute of Arbitrators affected parties faced over the past your career? year, and how are you adapting Without my time at Baker McKenzie, both your practice accordingly? with the disputes group and the internaThe biggest challenge obviously was the need to keep the system working in the face of covid-19. Many lawyers who are excellent advocates had initial difficulty switching to the electronic world, but in time we all adapted. My practice as an arbitrator became completely paperless and online.

tional arbitration group, I simply would not have the practice that I have. The personal exposure that comes from being with an international firm, and attending in-person conferences such as those run by the Chartered Institute is invaluable.

What challenges did you face when you founded Bay Street Chambers?

Some practitioners report that post pandemic, arbitra- The biggest challenge was having to do tion costs are discouraging everything myself, without the back up and for clients looking to pursue support that you have at a large law firm. this method of dispute resolu- I also worried about whether the phone tion. To what extent have you would ever ring. noticed this and is the market adapting to meet changing cost With over 40 years in a distinpressures? guished career, what would you I am not convinced that arbitration costs like to achieve that you haven’t are greater than litigation costs; however, done so already? I believe the need to keep costs under control will cause all users to continue holding virtual conferences and hearings where appropriate. We will no longer be flying somewhere to hold a procedural meeting.

S ome Canadian provinces have passed modern arbitration legislation for domestic disputes. How have you found these changes have affected your practice?

Most provinces have used the Model Law as a template for domestic legislation and so there is, with some exceptions, a uniformity

I owe so much to the marvelous mentors I have had over the years that I am looking for opportunities now to “pay it forward” and help the next generation where I can.

How can the international arbitration community improve diversity?

The solution is in the diversity we see in our younger practitioners. I believe the use of teleconferencing has allowed them the opportunity to participate in arbitral proceedings and attend conferences virtually. This should continue. Also, the use of such programmes as “next generation” arbitrator rosters needs to be expanded.

Peers and clients say: “Mr Casey is a leading authority on arbitration law in Canada and is highly regarded arbitrator” “He is an absolute trailblazer in arbitration” “He is a knowledgeable and resourceful practitioner” whoswholegal.com/thought-leaders

Eliseo Castineira

Castineira Law

Paris www.castineiralaw.com ecastineira@castineiralaw.com Tel: + 33 184257175

Biography Eliseo Castineira has participated in numerous international arbitration proceedings as counsel and arbitrator, including dozens of cases as president, co-arbitrator, sole arbitrator or emergency arbitrator. Eliseo handles disputes with private entities and states or state-controlled entities in many economic sectors (including construction and engineering, energy and natural resources, M&A, distribution, pharmaceuticals). Eliseo’s cases were conducted in English, French, Spanish, Portuguese and German and have involved parties from all continents and over 20 governing laws.

Arbitrators & Counsel

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients?

One of the most important qualities for a corporate lawyer is the ability to understand the fundamentals of a business transaction so as to translate these into appropriate legal concepts. In the case of arbitration counsel, this means understanding the business, technical and cultural aspects of the dispute and the relevant sector before formulating claims and defences. Arbitrators must likewise decide disputes. Those arbitration practitioners that are able to acquire as diverse as possible geographical and sector experience are, in my view, better placed to provide the kind of service and justice that is most attuned to the demands of business.

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

Multilingual arbitrators are well placed to understand the different cultural, social, business and legal traditions and concepts that may be relevant in a dispute. The openness and flexibility that goes along with fluency in various languages is reassuring for parties with varied backgrounds and nationalities. English may be the language of the majority of arbitrations, but one must not forget that the majority of arbitration participants – parties, witnesses, experts, counsel and arbitrators – are not native English speakers even if their command of English is often excellent.

It is reported that there is a new generation of arbitrators

emerging who are increas- disputes, basic scientific and engineering ingly specialised. How does knowledge. increased specialisation benefit the arbitration market and As someone who often speaks what are the potential pitfalls? on climate change and arbitraSome think that the more specialised tion, how do you view arbitrathe arbitrator, the more efficient they will tion’s role in dealing with clibe and the less likely they are to make mate change disputes? mistakes because they know the subject matter very well. There is some degree of truth in this position. I was, for instance, an M&A lawyer for several years prior to moving on to arbitration and, many years after my prior life as a transactional lawyer, I still find it very useful in my practice as arbitrator to have negotiated and drafted many SPAs or joint venture agreements. That said, we must not forget that arbitrators must have the ability to step back to understand the business and technical aspects of a transaction and the issues. This ability to see the bigger picture before going into the details of the claims requires an open mind and flexibility, which comes with a wealth of experience in different sectors. In addition, the world is complex and so are often business transactions and disputes. Arbitrators should therefore beware of being trapped in silos when deciding claims. So I would caution against excessive specialisation at an early stage for arbitrators. At least in commercial arbitration, much of the work consists in interpreting and applying contractual provisions. Understanding contract law should be the primary requirement. Specialist knowledge in certain areas is also most helpful, for instance for disputes in highly regulated or technical fields such as pharmaceuticals or construction or energy disputes. In these cases, specialisation should include an understanding of the sector itself and in the case of energy or climate change-related

Substantive climate obligations are being developed quickly through national regulations or the European Commission’s proposal for a directive on corporate sustainability due diligence as well as judgments against companies and states. As a result, I think that climate change may well become a public policy issue to be addressed like corruption, ie, an issue relevant both for state courts reviewing awards at the place of arbitration or of enforcement and in terms of legitimacy of arbitration. Investment arbitration on energy transition and the phasing out of fossil fuels (an extraordinary challenge for a world that is built on them, especially in the wealthiest countries) and commercial arbitrations involving claims related to scope one, two and three emissions will require addressing climate change much more directly than has been done so far in arbitration. Arbitration practitioners should develop a basic understanding of science and engineering on energy and climate to properly address these issues, especially given the mounting challenge to access natural resources and energy in a finite world. This has been one of my priorities and it is the best way for arbitrators to avoid being subjected to greenwashing or statements that contradict the intangible laws of physics and which should never make their way into awards.

Peers and clients say: “He is a great arbitrator, extremely efficient and commercial” “Especially proactive and knows everything about arbitration practice” “Brilliant, young and impressive arbitrator” whoswholegal.com/thought-leaders

Michelangelo Cicogna

Studio Legale De Berti Jacchia Franchini Forlani Milan www.dejalex.com

m.cicogna@dejalex.com Tel: +3902725541

Biography Michelangelo Cicogna has acted both as counsel and arbitrator in ad hoc and administered procedures, under a variety of rules, including ICC, ICSID, UNCITRAL, LCIA, MKAS, CAM, Madrid, AIA, DIS, SCC, CCIR, SCAI and the PCA, dealing with complex litigation, including multiparty and parallel arbitrations, across a wide range of sectors. Author of numerous publications, he teaches advocacy in international arbitration at Luigi Bocconi University. He is a member of the ICC Commission, officer of the IBA International Arbitration Committee and co-founder of ArbIt.

Arbitrators & Counsel

What inspired you to pursue a career in arbitration?

At the beginning, if truth be told, it was only the strong aspiration to do something truly international without having a clear idea of what was expected of me. After graduation, I won a scholarship at the Chamber of Arbitration in Milan. It is there that I discovered arbitration and it is only once inside that world that I have appreciated its incredible features and potential for my future. One can connect dots only backwards. And in my case the knowledge of foreign languages, a certain passion for justice, and lucky events of life brought me to pursuing such a career.

international environment is the possibility to frame the fundamentals of those proceedings (venue, language, law, counsel, etc) in a way that can make both parties feel comfortable about the rules of the game. This brings predictability and trust in the business and has no price. When it goes to the challenges, probably the biggest one is the need to remain credible in the eyes of the users and not to be seen as a self-referential machine just good for enriching a few stakeholders. The noble purpose of a system born to support business and international trade should be preserved.

corruption (perpetrator, corrupt, corruptor etc.) are not party to the arbitration, can be dangerous, bring wrong decisions and cause damage to persons who may ultimately be found innocent. Tribunals should be sensitive to the issue of corruption but should not commit the sin of hubris. If a certain situation “smells” of corruption but the parties for one reason or another decided not to involve the public prosecutors in the competent jurisdiction, I would say that the tribunal should first understand why that inaction occurred.

Every proposal that is meant to be “universal” finds me sceptical. I consider that conflicts can be avoided by using the various soft-law tools which are already available on the market. Not because I am an officer of IBA but I consider the IBA Guidelines on Conflict of Interest still a valuable instrument to avoid situations of conflict.

that every foreign language is a window to diversity and culture. Certainly, those who invested time in their life to learn foreign languages show some curiosity that others may not have. And curiosity is crucial when acting as arbitrator. But I would not go further than that, as I know excellent arbitrators that do speak only their native language (lucky them, it is English).

Should tribunals be more bullish about corruption defences and examining evidence for corruption in proceedings?

You are a member of the ICC commission on arbitration, officer of IBA arbitration Committee, among other groups, and co-founded ArbIt, the Italian Forum for Arbitration. How do you believe these activities enhance your career?

In your experience, what Given the increasing amount of advantages can clients benefit conflicts arbitrators and coun- from in hiring a multilingual What part of your practice do sel are experiencing, should arbitrator? you enjoy the most? Why? there be a set of universal con- Difficult for me to say. I only speak four Trying to pick a few select areas, I would flict principals across arbitra- languages, but there are colleagues who mention three. tion institutions? speak six, seven and more. I can only say First sitting as an arbitrator, as I consider such a role as a true honour. I am sitting quite often in arbitral tribunals and I find the possibility to contribute to the development of the international trade and business, by rendering justice, an incredible opportunity and, in a way, a coronation of a career. The second part is the advocacy as counsel. This is the actual fun in arbitration, where one can contribute to the outcome of a case with his dedication and, why not, talent. The third aspect that I enjoy the most is the human context in the international arbitration world. I don’t want to appear rhetorical, but I do consider the vast majority of the people in the international arbitration arena incredibly interesting and gifted persons, with whom spending time (whether in cases or social events) is at the same time enjoyable and enriching.

In your experience, what are the benefits and challenges of alternative dispute resolution compared to more traditional methods? The biggest benefit of all the alternative dispute resolution methods in an

No one should underestimate the intrinsic negative disvalue of corruption, one of the most heinous crimes in the international economy. However, exactly for that reason, I consider allegations of corruption as a very serious thing, to be treated carefully. Sometimes corruption is raised as a mere defence and only in arbitration, without the support of investigations by criminal courts. And relying on the limited investigative powers of an arbitral tribunal (much more limited compared to public prosecutors) for a decision on alleged episodes of corruption, even more so when the subjects of the alleged

whoswholegal.com/thought-leaders

I believe that these organisations/groups are crucial first for the development of international arbitration and to spread its culture and its best practices worldwide. Then, of course, I cannot deny that they also represent a good networking platform, mostly because they give you a unique occasion to collaborate with fantastic colleagues. But the networking comes after the spirit of service that is embodied in the participation of those groups.

What inspired you to pursue your arbitration-related training and coaching activities? How important is it for the more established generation of arbitrators to develop the upand-coming generation?

The coaching activity started by chance, 17 years ago. At the beginning, the motivation was very simple, I was attending the moot as arbitrator and once I realised

that Italy was not represented with any university, I wanted to bring one. Bocconi immediately accepted the challenge. It is only after that I realised how important it was for the students. And now I can say this is probably one of the most rewarding activities I am involved with. Students of my teams over the 17 years started amazing careers in international arbitration, with top roles in different areas (counsel, in-house, in arbitral institutions,

etc) and in different places of the world. The moot is the closest thing to a real arbitration that a young lawyer can experience and the number of connections and networking opportunities that can be achieved is unparalleled. The legacy of the coaching activity is confirmed by the fact that former students remain so fond of the experience that now many of them support me as co-coaches, helping the next generations of students.

Peers and clients say: “He is one of the most admired and well-known arbitration practitioners in Italy” “He is a highly recommended name in the arbitration space” “Michelangelo is a great chairman in arbitration proceedings” 50

Arbitrators & Counsel

ANALYTICS WWL has built on its stellar track record of offering deep insight into the world’s legal markets with the recent launch of WWL Analytics – our new market-leading digital platform that enables you to interrogate WWL’s unrivalled performance dataset. WWL Analytics tracks the global legal industry to provide you with an accurate analysis of your firm’s performance and help you win business.

KEY FEATURES Research the detail Analyse over eight years of benchmarking data, using sophisticated tools to provide actionable insight Understand the market Ratings, scores and comparative tools offer a fast, 360-degree view of the market Build your profile Harness WWL data, third-party endorsements and performance ratings to build personalised reports Minimise risk Drill down into specific feedback to deliver a more effective business generation strategy

DISCOVER MORE AND REGISTER YOUR INTEREST AT

WHOSWHOLEGAL.COM/ANALYTICS

whoswholegal.com lbresearch.com

Stephanie Cohen

Independent Arbitrator New York City www.cohenarbitration.com

cohen@cohenarbitration.com Tel: +1 718 422 1089

Biography Stephanie Cohen is a full-time Canadian arbitrator in New York City, qualified in New York and Ontario, with over 20 years’ experience in international commercial arbitration. She has practised exclusively as an arbitrator for 10 years, frequently as chair. Stephanie is well known for practical and scholarly work on the interplay between technology and arbitration procedure, including cybersecurity. She is also a fellow of the Chartered Institute of Arbitrators and chair of its New York branch.

Arbitrators & Counsel

Describe your career to date.

After articling at a leading national firm in Canada and qualifying to practise law in Ontario, I joined White & Case in New York where I practised international arbitration and litigation for 10 years. In the decade since, I have acted exclusively as an arbitrator across a broad range of industries, legal systems and arbitration rules. I have also cultivated insight on the impact of technology on the arbitration process, including through co-authoring an award-winning article on cybersecurity, serving as a member of the working group that drafted the ICCA-NYC Bar-CPR Cybersecurity Protocol on International Arbitration, and chairing the working group that drafted the ICC Commission Report on Leveraging Technology for Fair, Effective, and Efficient International Arbitration Proceedings. I speak regularly on other matters of practical and scholarly interest as well, and serve as faculty for both new and advanced arbitrator training and educational initiatives offered by the ICC, AAA/ICDR, CPR and Chartered Institute of Arbitrators, among others.

What qualities make for an effective arbitrator?

An effective arbitrator commands authority by mastering procedure, but is also flexible and practical. An effective arbitrator is also conscientious about “getting it right,” which requires self-awareness to reflect on what could (and should) have been done differently in each case and ongoing commitment to learning about arbitration law and practice. It is equally important to be available, diligent, open-minded and intellectually curious, analytical and decisive, adept at communication, collegial and alert to the nuances of different cultures and legal systems.

of commercial interests and practices, deepening my understanding of contract negotiation and construction across cultures and legal traditions, and better equipping me to manage complex disputes.

What steps can be made to increase diversity in the arbitration field?

Continuing to develop and increase access to information about diverse arbitrators is critical to encourage and stimulate thinking beyond the usual suspects about who might be a suitable arbitrator. But to successfully turn suggestions about diverse arbitrators into actual appointments, we also need to create and provide opportunities for visibility and exposure to new and lesser-known entrants into the field so they can be seen “in action” and instil confidence in those poised to appoint them.

How has the shift to online working and events affected networking opportunities?

It’s a mixed bag. Many online events have had larger audiences than if they were held in-person, as well as greater global reach (despite time zone differences). Online events are also being offered at no or low cost. As a result, speakers benefit from greater visibility and exposure and events are more inclusive. Virtual platforms also afford ambitious young practitioners tremendous opportunities to craft substantive programs of interest and to selfpromote. On the other hand, it’s harder to build relationships online without the oneon-one, repeat interactions that normally take place over the course of a day’s coffee breaks at the typical conference.

How does your chairmanship and membership on cyberseHow does your vast experience curity and IT-related commisacross diverse sectors comple- sions enhance your arbitration ment your practice? practice? The diversity of my subject-matter experience has invariably exposed me to a diversity

practices and procedures, which directly benefits my case work. In addition, by virtue of my focus on the procedural impact of technology on arbitration proceedings, I have increasingly been asked to arbitrate technology-related disputes, such as disputes about blockchain technology or software development and collaboration agreements.

It is reported that there is a new generation of arbitrators emerging who are increasingly specialised. How does increased specialisation benefit the arbitration market and what are the potential pitfalls?

The ability to appoint an arbitrator with specialised industry expertise is often heralded as an advantage of arbitration over litigation. Ensuring that one or more decision-makers have relevant technical knowledge or industry background may instil party trust and confidence in the process and cut down on the need to educate the arbitrators about technical matters. This is a potential marketing point for industries that have underutilised arbitration in the past. However, there may also be a risk that a decision becomes too focused on technical details rather than on the governing law and/or contract or that the specialised arbitrator will rely on their own opinion rather than on the evidence that is submitted.

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

Get involved. Seek training and credentials. Master a subject and share your knowledge with the world. Read widely.

My work in these areas is highly practical and focused on ways to enhance arbitration

Peers and clients say: “Stephanie has amazing experience and is a rock solid decision maker” “She is a master of process” “Nothing short of brilliant in her knowledge and abilities” “Stephanie is very impressive, strong intellectually and commands authority” whoswholegal.com/thought-leaders

Adrian Cole

Independent Arbitrator Abu Dhabi

adrian.arbitration@gmail.com Tel: +971 50 8107412

Biography Adrian Cole is a construction dispute specialist, listed by Who’s Who Legal as one of the top 25 construction dispute resolution lawyers in the world and ranked tier one by Chambers Global and The Legal 500. Mr Cole studied engineering and construction and practised as a quantity surveyor before becoming a solicitor. He has first-hand experience of the practical issues in the engineering and construction industries and has decided over 90 significant and complex construction cases.

Arbitrators & Counsel

What are the advantages and disadvantages of having a global practice?

Having a global practice allows me to work on some of the largest and most complex energy and construction disputes in the world. These include power stations, LNG plants and refineries as well as airports, ports and railways and some of the largest and tallest buildings around. Such disputes have an enormous range of issues, often having cross-border and jurisdictional elements as well as being technically and legally complex. Not only is this exciting and challenging, it affords the opportunity to work with and learn from some of the best lawyers and experts in the world. The downside of a global practice is working across time zones, conducting meetings virtually at 3am in the morning or in the dead of night!

What do clients look for in an effective arbitrator in today’s climate?

Disputes cost money – a lot of it, so clients want an arbitrator who can conduct arbitrations fairly and efficiently with the resultant award reflecting the proper entitlements of the parties and capable of enforcement. This means working with the parties to shape a procedure that fits the needs of the case with a realistic timetable that balances the interests of the parties with the duty to avoid unnecessary delay and expense. Early engagement with the submissions and evidence is essential to make effective procedural decisions and to get to grips with the issues for an effective arbitration.

What do you enjoy most about working in international arbitration?

I enjoy working with colleagues from different cultural and legal backgrounds. Not only is cultural awareness and sensitivity vital to be effective in international arbitration, it is hugely rewarding. Although

I am from a common law background, I have also practised civil law in the Middle East for 16 years with some Shari’a cases too. Working across legal systems and traditions adds to the depth of one’s experience and develops a broader understanding of law and arbitration procedure that benefits my practice and something that practitioners working in a single jurisdiction may not experience.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree? Arbitrators have a duty to be independent and impartial, without which confidence in arbitration would wither. It is important therefore that arbitrators make the necessary disclosure to ensure transparency and maintain confidence in the system.

What green trends are you seeing in construction and energy- How do you see your practice related arbitrations? developing over the next two There is a welcome acceleration towards years? “greenifying” arbitration generally with initiatives such as the Campaign for Greener Arbitrations leading the way. Construction and energy related cases are often international in nature and document heavy and are amongst those that can benefit most from developments in electronic document management systems to reduce printing and the use of video conferencing to reduce travel in order to minimise environmental impact.

It is reported that there is a new generation of arbitrators emerging who are increasingly specialised. How does i n c re a s e d s p e c i a l i s a t i o n benefit the arbitration market and what are the potential pitfalls?

Well informed parties have always taken care with the selection of arbitrators. As disputes become more technically complex, parties have realised the benefits of appointing tribunals that are specialist in their field. Parties can avoid the costs of learning curves and avoid the risk of arbitrator misunderstanding. Arbitrators who speak the language of the industry are best placed to assimilate submissions and evidence most effectively. It is nevertheless vital that arbitrators decide cases as presented to them and not make assumptions based on past experience.

I enjoy a strong pipeline of cases working with excellent colleagues and I hope this will continue! While I have cases from Asia, Africa, Middle East and Europe there is a shortage of cases in the Caribbean, and I hope this will be corrected in due course! I am active in promoting equal opportunities and diversity through working with the IBA and in mentoring younger practitioners to develop their careers in arbitration with the CIArb and shall continue to do so. Providing opportunities for others is not only the right thing to do but it is also very satisfying. My recent appointment as a part-time Judge of the Court of Cassation of Bahrain (Bahrain’s highest court) and secondment to the BCDR is very exciting and look forward to being of service.

What is the best piece of advice you’ve ever received? My old boss, the late Arthur Marriot QC, a doyen of international arbitration, used to say: “maintain the moral high ground”. This is guidance that I have tried to employ throughout my career both as counsel and as arbitrator and it is great advice. It keeps you out of petty squabbles that distract and waste time and cost and provides a focus on maintaining high ethical and moral standards. Thanks Arthur!

Peers and clients say: “Adrian is an excellent arbitrator in the construction space” “He is the go-to arbitrator in the Middle East”

whoswholegal.com/thought-leaders

Nayla Comair-Obeid

Obeid & Partners

Beirut, Dubai and Paris www.obeidpartners.com nayla@obeidpartners.com Tel: +961 1 363 790

Biography Professor Dr Comair-Obeid is the founding partner of Obeid & Partners, and a professor of law at the Lebanese University. She is a member of the ICC executive board; the international commercial expert committee of China’s Supreme People’s Court; and the London Court of International Arbitration. She is also a companion of the Chartered Institute of Arbitrators (CIArb) and former CIArb president, and sits on the ICSID panel of arbitrators and conciliators. She is recognised as one of the world’s leading practitioners in international arbitration and dispute resolution. Fluent in Arabic, French and English, she is qualified to practise in Paris and Beirut.

Arbitrators & Counsel

What has been your most interesting arbitration to date as an arbitrator?

It is hard to identify one particular case as the most interesting. Each of the arbitration cases in which I have acted as an arbitrator, whether large or small, presented thought-provoking issues and arguments. Equally interesting, and at times challenging, is the interplay between counsel and arbitrators’ varied backgrounds and legal cultures. Observing the interactions between global players and different legal cultures at work is part of the beauty of international arbitration.

How has the market changed since you first started practising?

Over the span of my 40 years of practice, the market has evolved greatly; it is now larger and more competitive. Arbitration in recent years has become far more contentious, in the sense that the practitioners are more pugnacious and confrontational than in the early years of my career. Also, cases have grown in complexity, and encompass a broader range of areas. As a consequence, the average duration of international arbitrations has lengthened. A decade ago, the conduct of cases was smoother, and proceedings were shorter.

How did your role as president of CIArb enhance your practice?

I was in close contact with different actors at all levels of the organisation, including the various local branches of CIArb around the world. This role, as well as my involvement in the organisation of three flagship conferences (held in Dubai, Johannesburg and Paris) during my presidency, enhanced my practice by considerably enriching my knowledge of the issues and challenges faced by those participating in shaping international arbitration policy and practice worldwide. My interactions with a wide range of practitioners and the judiciary, coming from various cultural and legal

backgrounds, has been very inspiring and refined my approach and understanding of what constitutes best practices in international arbitration and other ADR mechanisms.

As a founding partner at the firm, what are your main priorities for Obeid & Partners’ development over the next five years?

Obeid & Partners’ top priority is to continue to offer the highest calibre of work to its clients; this is our most important value. We work hard to uphold our reputation for consistently providing what I believe are unmatched legal services in our region. One of our main strengths is the multicultural approach adopted within our team. Our members come from a diverse set of nationalities, backgrounds and expertise, and are collectively fluent in Arabic, English and French.

to pursue their education, as it is the most powerful asset for lawyers. They should have a clear purpose, set ambitious goals and targets, and constantly seek to perform with professional excellence. It is inevitable that various challenges will come their way. However, they should learn to embrace them, and to keep moving with full energy and determination. I encourage them to savour the journey, and display courteous manners and empathy.

What is the greatest challenge that arbitrators face in commercial arbitrations today?

Arbitration is facing a crisis of legitimacy, as a result of which legal actions and challenges against arbitrators are increasing. It is important for arbitrators to act with integrity in order to protect the sustainability of the profession. The profession also needs more robust arbitrators who know how to strike the balance between efficiency and preserving due process and the right to be heard.

As an ICSID panel member, what do you make of the planned proposals for a multilateral investment court? You have enjoyed a very disAs an ICSID panel member, I have tinguished career so far. What witnessed growing criticism directed would you like to achieve that against the current investment arbitration you have not yet accomplished? system. I am apprehensive of replacing the autonomous mechanism for the resolution of investment disputes with a mechanism that provides limited autonomy to both parties. I believe that changes can be implemented while keeping in mind the role that investor-state dispute settlement plays in supporting investment and economic activities worldwide, and with a view to promoting both states’ and investors’ complementary interests.

What advice would you give to younger practitioners hoping to one day be in your position? Having practised and taught law for over 40 years, I encourage young practitioners

Throughout my career, and up to this day, I have aimed to support the empowerment of women worldwide, and particularly in the Middle East where opportunities for women to meet their full potential and have accomplished careers in the long run remain scarce. I would like to pursue this avenue further in the years to come. I am convinced that women can contribute to solving many of the current global issues, including with respect to conflicts and crises. We have witnessed the pivotal role played by women in the management of crises, such as that created by covid19, and I am convinced more generally that they are capable of groundbreaking leadership.

Peers and clients say: “Nayla is one of the biggest names in arbitration in Lebanon” “She has extensive experience as counsel and arbitrator in international commercial arbitration proceedings” “She is a highly thought of practitioner in the region” whoswholegal.com/thought-leaders

Sandra De Vito Bieri

Bratschi SA

Zurich www.bratschi.ch sandra.devito@bratschi.ch Tel: +41 58 258 10 00

Biography Sandra De Vito Bieri has worked in the field of arbitration for over 20 years. She also advises companies as well as members of management and boards of directors in extensive administrative and criminal investigations as well as in internal investigation proceedings. Her clients include companies and entrepreneurs mainly in the financial, energy, telecoms and commodities sectors. She advises on disputes arising from M&A transactions, licensing and joint venture agreements, agency agreements, purchase agreements, production and construction projects.

Arbitrators & Counsel

What do your clients look for in an effective counsel?

They want me to fight when it is time to fight and to re-assess the matter when that is what the situation requires. They want me to define the strategy with them – anticipate the actions of our opponent and re-assess the situation depending on new facts.

What do you enjoy most about acting as arbitrator?

Listening. First have the parties explain the story behind the dispute and then listen to the witnesses and experts as they explain their side of the story. Exciting every time.

should not completely replace personal encounters. The nuances of a statement are otherwise lost, which is a bad development in dispute resolution.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

Often this input comes from the parties and here it is dictated by cost efficiency. And parties do well to tell the arbitral tribunal exactly how they want to conduct proceedings and with what technological means. The arbitral tribunal has to adapt, and that is good.

What challenges and opportunities do virtual arbitration How has the shift to online hearings and proceedings pre- working and events affected sent to expert witnesses? networking opportunities? I think there are more challenges than opportunities. We have had the experience of virtual hearings for several years now, and especially in hybrid hearings the difference becomes very clear: if an expert sits vis-à-vis the arbitral tribunal, if he can stand up from time to time and even show something, this is better remembered than an expert who was questioned via video. Of course, cost efficiency has to be taken into account, too, but if feasible, I prefer a hearing in person.

Fortunately, we are returning to old habits and we are meeting in person again. I didn’t like these virtual meetings – online working is okay – but there’s nothing like a face-to-face chat, especially in a professional environment.

Do you think the movement of seminars and conferences to online platforms has helped or hindered the growth of the arbitration field? I think it did not impact.

What are the potential benefits and drawbacks of technological What key skills and traits would development in arbitration? you encourage the next generaThe benefits are clearly time savings and tion of arbitration practitioners thus cost efficiency. It is also easier today to develop? to, for example, record a hearing or, who knows, combine it with virtual reality. But, in my opinion, technological development

Understanding cultural differences, use and understanding of technological means and passion, passion.

Peers and clients say: “Very skilled, diligent and persuasive first-rate arbitrator” “Very dynamic and quick thinker” “Great arbitrator!” “Highly recommended; wonderful personality and brilliant when it comes to cases” “She goes the extra mile for her clients as counsel” whoswholegal.com/thought-leaders

Kabir Duggal

Arnold & Porter

New York www.arnoldporter.com kabir.duggal@arnoldporter.com Tel: +1 212 836 7141

Biography Dr Kabir Duggal is an attorney at Arnold and Porter serving both as arbitrator and counsel. Dr. Duggal is also an adjunct professor at Columbia Law and Fordham Law, and a course director for the Columbia Law School-Chartered Institute of Arbitrators. He acts as a consultant for the UN Office for Least Developed Countries on the creation of an “Investment Support Program”. Dr Duggal works closely with the US Department of Commerce’s Commercial Law Development Program (CLDP) and has also conducted training and capacity-building sessions for several governments on public international law and dispute resolution matters. He is the co-founder of REAL (Racial Equality for Arbitration Lawyers), a non-profit seeking to create greater representation in international arbitration.

Arbitrators & Counsel

What attracted you to a career in arbitration?

As a person born in Saudi Arabia, raised in the Middle East and in India, educated in the UK, the Netherlands, and the US, and working in the US and the UK, I wanted a career that was truly international. I toyed with and explored the possibility of becoming a diplomat or working for the Ministry for Foreign Affairs when a professor introduced me to international arbitration. The rest as they say is history.

What do you believe are the most important issues for clients when looking to begin an arbitration?

For clients, the first principles of international arbitration (ie, a cost-effective, timely process that respects due process) can be top priorities when it comes to international arbitration. It behoves both counsel and arbitrators not to forget this especially during passionate moments of a proceeding. Strategies to keep costs under control (eg, avoid repetitive witness statements or restricting document production to a limited category) can make a critical difference towards procedural efficiency.

be effective. Similarly, preliminary and prehearing conferences can be virtual barring exceptional circumstances. For larger or more complex cases, hybrid formats can be explored to provide tangible benefits.

How has your membership of the International Centre for Dispute Resolution (ICDR) enhanced your practice?

The ICDR, like most international arbitral institutions, provides invaluable resources, inclusive of trainings and networking sessions, for those developing their arbitrator career and those already established to refine their skills. I remain grateful to institutions like the ICDR for their support and trust in me. Moreover, institutions are often at the forefront of innovation, evolution, diversity-related activities, and best practices, with access to the full compendium of global stakeholders critical to our practice. I am very honoured to serve on the ICDR’s Council and also serve on its diversity, equity and inclusion committee, publications committee, large and complex cases committee, and international committee. Each of these committees strives to innovate and develop best practices within their respective areas of focus.

In your experience, how efficient have virtual hearings been? Do you consider them to To what extent should more be be a suitable replacement for done to improve the transparin-person proceedings? ency of arbitration proceedings? It is notable how quickly counsel, parties, and arbitrators – really all stakeholders in the arbitral space – pivoted to virtual hearings against national court closures at the onset of the pandemic. In parallel, the international arbitration community developed best practices to conduct a virtual hearing effectively in real time. These developments demonstrate the flexibility of the arbitral process and the international arbitration community’s ability to be resilient and respond to challenges. As we slowly emerge from the pandemic, I believe we have an additional option in our arbitral arsenal, ie, optionality to consider whether a given matter warrants a virtual or hybrid format. For smaller disputes or disputes that do not have many witnesses, virtual hearings can

Our community has already adopted several, positive initiatives to facilitate transparency such as allowing amici submissions, making certain details of arbitral proceedings public, permitting non-disputing party submissions and the like. Efforts of this nature can be further strengthened. For example, tribunals can be encouraged to actually refer to the amici submissions in the award. Further, institutions can be encouraged to provide more granular details on diversity. Most institutions provide details on nationality but if institutions also start capturing data on the racial and ethnic make-up, we will be further able to assess how minorities within a country fare when it comes to arbitral appointments. These efforts will increase the legitimacy of international arbitration.

If you could implement one reform to investor-state arbitration, what would it be and why?

I would allow greater consideration of human rights and environmental issues in investor-state arbitration. We can accomplish this through a variety of means including allowing amici submissions and expert testimony, and the tribunal proactively asking questions on these issues. I believe these options (and many others) can increase the legitimacy and buy-in into arbitration, and is the right thing to do.

How has the relationship between arbitrators and parties developed over your career? How might this affect tribunals? I have seen arbitration change for the better from a much narrower pool of arbitrators (who may also have had close relationships with counsel) to a much larger (albeit not consistently diverse) pool of arbitrators today. A more diverse and representative set of independent arbitrators supports the overall legitimacy of our practice and I welcome it, for the success of international arbitration lies in its global representation of all stakeholders in the process.

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

There are three things I am keen to accomplish: (i) I want to support efforts for greater representation in our field for both visible and invisible minorities; (ii) I want to support initiatives looking at the mental health and well-being of lawyers in international arbitration; and (iii) I want to facilitate practices that support the key, founding tenets of international arbitration (ie, cost efficiency matched with timely and reasoned awards). As international arbitration grows and expands to more regions of the world, demonstrated in the recent launch of local and regional arbitral centres and institutions, we must remain diligent and determined to deliver the benefits that this disputes practice brings all over the world.

Peers and clients say: “He always offers thoughtful insights and positions” “Mr Duggal is truly a leader in the arbitration market that people all turn to for his opinions” “Kabir’s methodical, effective approach lends great stability to any matter” whoswholegal.com/thought-leaders

Carine Dupeyron

Darrois Villey Maillot Brochier AARPI Paris www.darroisvilley.com

cdupeyron@darroisvilley.com Tel: +33 6 19012966

Biography Qualified in Paris and in New York, Carine Dupeyron co-heads the international arbitration practice at leading French firm Darrois, having previously practised in Singapore and New York. She also acts before French courts in strategic enforcement and annulment proceedings, and in complex litigation. With a dual business and legal background, her practice focuses on post-acquisition and shareholders’ disputes and the contentious performance of major industrial projects. She has a recognised expertise in the defence industry, telecom, waste management and energy sectors. She is a member of the ICC Court, an executive at Paris Place d’Arbitrage, sits on the board of the Arbitration Academy and teaches at Sciences Po.

Arbitrators & Counsel

What first inspired you to pursue a career in law?

I do recall an excellent law professor and law standing out as my preferred subject when I was studying business and economics. It quickly became obvious that law was the area of greatest interest academically. This promptly led to a reorientation of my studies, and I decided to start law studies in parallel with my business degree (MBA). Then, international dispute resolution stood out as the field that attracted me above all others.

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

Mastering different languages illustrates the multiculturalism of the person and an ability to adapt. In international arbitration where parties often have different cultures, when they come from different continents and have distinct legal approaches, having a multilingual lawyer, thus a person with a deep understanding of different traditions, is a valuable asset.

In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation? Paperless filings, use of platforms for the sharing of information, avoiding excessive travelling via the use of new technologies, or resorting to greener forms of travelling (trains versus airplanes when feasible), are some of the tools available to practitioners to have greener arbitration. The campaign for greener arbitration is an excellent initiative to raise awareness among arbitration practitioners and obviously, as end users

and the ones without which there would no arbitration, clients have a key role to play to incentivise their counsel to adopt greener reflex.

sometimes also to select experts and arbitrators, could artificial intelligence be used to draft procedural summaries, summarise submissions? With the knowledge and consent of the parties?

What are the stated goals of the ICC task force on corrup- What steps can be made to tion and do you think they are increase diversity in the arbiambitious enough? tration field? Raising awareness of arbitral tribunals on questions of corruption is certainly one of the goals of this task force, but for obvious reasons, it should not end there. It is one thing to detect a difficulty, it is far more complex to be able to solve it and this is what the ICC task force is and shall principally be aiming at: giving detection tools but also solving tools to arbitrators.

So many steps must be made, at all levels, on all fronts: talking about diversity endlessly, enhancing the visibility of minorities, from the recruitment at universities to ensuring fair representation to the selection of speakers from all backgrounds in conferences, applying strict parity rules in institutions, encouraging and mentoring lawyers from minorities. Every and each arbitration practitioner shall feel responsible for increasing diversity, at his or her level.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques More and more practitioners in proceedings? are leaving firms to set up their Paperless tribunals are becoming more own arbitration boutiques. frequent, with tablets replacing binders. What are the main drivers for Virtual hearings or hybrid hearings have this? become the norm, without serious difficulties. The next wave of “sophistication” will be related to artificial intelligence I believe. What I have not noticed yet, but which I am curious to see and assess, is when and how artificial intelligence will become a tool for arbitrators, and therefore a part of the arbitral process. In numerous cases, the submissions and evidence produced are massive, and constitute an unsolved challenge to what a normal human arbitrator’s brain is able to absorb, analyse, and synthesise. From a role today essentially dedicated to e-discovery, case management, translations and legal research, and

Independence, conflicts of interest and also, if not first and foremost, putting arbitration at the centre of one’s practice, as opposed to being one of many ancillary legal services within structures driven by other practices.

Looking back over your career, what has been your proudest achievement to date?

Building with professor Laurent Aynès a highly competent, dynamic, multicultural, diverse international arbitration team with outstanding individuals.

Peers and clients say: “Carine is an accomplished international arbitration practitioner” “She combines an in-depth knowledge of the field with a strong understanding of the cultural and legal subtleties across jurisdictions” “She has a strong legal grounding and unique interpersonal abilities” whoswholegal.com/thought-leaders

Nils Eliasson

King & Spalding

Singapore & Hong Kong www.kslaw.com neliasson@kslaw.com Tel: +65 90883803

Biography 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 recognised as a leading practitioner for Asia-related disputes. He is a Vice-Chair of HKIAC.

Arbitrators & Counsel

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”.

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.

Many arbitral awards are starting to end up back in court for enforcement proceedings. Does arbitration have an enforce- Given the Sino-US tension, do ment issue, and how could this you foresee more investorbe addressed if so? state arbitrations sprouting In my experience, most awards are as a result and how would you complied with voluntarily or through a navigate around them if so? 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” (ie, an individual acting both as

The increased scrutiny of and measures taken against certain Chinese companies operating in the US have already caused Chinese enterprises to consider their investment treaty options. To the extent the Chinese government responds in kind, US 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 US. 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/US. The lack of an investment treaty between China and the US, makes “investment treaty structuring” of new investments imperative. The second hurdle is that most investment treaties do not apply to the “pre-establishment” stage, ie, 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. Twenty-five 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.

Peers and clients say: ”Nils is extremely knowledgeable and hard working” “He has great strategic skills and is nice to work with” “He is a bright, committed and principled practitioner” whoswholegal.com/thought-leaders

Pontus Ewerlöf

Hannes Snellman Attorneys Ltd Stockholm www.hannessnellman.com

pontus.ewerlof@hannessnellman.com Tel: +46 760 000013

Biography Pontus Ewerlöf is head of Hannes Snellman’s dispute resolution team in Stockholm. He has substantial experience in international and domestic arbitration under the SCC, ICC, ICSID, UNCITRAL rules, ad hoc proceedings and court proceedings in Sweden. His experience encompassing a wide range of areas such as supply, share and asset purchases, construction, real estate, finance, energy, investorstate disputes, professional and product liability, regulatory issues and insurance. Pontus also sits as arbitrator on a regular basis.

Arbitrators & Counsel

What inspired you to pursue a legal career?

My father is a former judge and I guess that our discussions regarding societal issues in general and the legal system in particular caught my interest for a legal career. Moreover, I am intrigued by the balance between a quite strict legal framework, on the one hand, and the creativity you may apply in the interpretation and argumentation of a legal issue, on the other hand. In disputes, I may also cater for the joy to compete, although no longer as an athlete but with words and arguments.

What inspired your choice of international arbitration as a field of practice and what do you enjoy most about international arbitration?

Being a lawyer in a small jurisdiction with a language known only to Scandinavians, I found the field of international arbitration a way to broaden the scope of my practice. I really enjoy the opportunity to meet with people from other jurisdictions often to find out that we all share similar problems to resolve and many fundamental features of law, such as the right to be heard and due process. It is also interesting to explore the differences between legal systems and culture of businesses and people.

How has the shift to online working and events affected networking opportunities?

One peculiarity with online working has been that networking has become more accessible and efficient since you may meet with more people in your network without so much planning. Instead of spending days on travelling you may reach out to colleagues around the world online. However, I still believe that the in-person meetings are more fruitful and much more fun.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are

opaque and restrictive. Do you agree?

I agree that it may sometimes feel as though the standards are quite opaque and restrictive. On the other hand, however, I believe that arbitrator independence is fundamental to the trust in arbitration and that the importance to uphold this should not be underestimated. In some instances, I believe that the standards are too restrictive, eg, in relation to global corporations with numerous subsidiaries in various jurisdictions, but where the dispute is local or limited in scope. You may find a similar situation in global law firms where even the smallest matter handled by a colleague in one jurisdiction not relevant to the arbitration must be disclosed and potentially could disqualify the arbitrator.

refined the way in which arbitrations could be conducted with a greater variety and flexibility in using technological tools. The most evident is certainly that many hearings have been held virtually or in a hybrid format, but the increasing use of online platforms for handling documents should also be noticed.

To what extent is arbitral discretion limited by due process?

The question is somewhat suggesting that there is a problematic clash of interest between arbitral discretion and due process. It is true that due process should always be the outer frame for a tribunal’s discretion. In my opinion, however, arbitral discretion is often a safeguard for due process. With less formal procedural rules to consider, tribunals may use their discretion to actively foster due process and, for example, see to it that the parties get an equal opportunity to present their case, respectively.

The current arbitration market is reportedly working with a small pool of arbitrators, and it is becoming increasingly dif- What is the most significant ficult to find arbitrators who do challenge arbitration will face not have a conflict of interest. Do over 2022–2023? you agree, and if so, how can this There are several challenges for arbitration issue be effectively addressed? in the coming years, but the origin of these On a general level, I do not agree. But in some particular areas of law or disputes it has been increasingly difficult to find an arbitrator who is not conflicted. The way to address this is in my opinion not to relax the standards, but rather to actively educate a new generation of arbitrators and to encourage colleagues and clients to accept appointments of not only the “usual suspects”, but this broader pool of arbitrators.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings? Quite to my surprise, tribunals quickly adjusted to the pandemic and adopted the concept of virtual hearings without too much fuss. During the past years, I have found that both counsel and tribunals have

challenges is different and they may be relevant to different areas of dispute resolution. The war in Ukraine and the sanctions against Russia as a result thereof will for sure give rise to unchartered issues in arbitration. The attack on ISDS, in particular in Europe, will most likely affect the way in which investor-state disputes are to be settled in the future. The pandemic will continue to cause problems also to arbitrations. In a broader perspective, the decline of globalisation and the corollary trend in protectionism will certainly affect international trade, which in turn may affect the scope of international arbitration. On the other hand, and on a more positive note, most of the above would probably result in more disputes to resolve. The challenge for us jointly is to continue to demonstrate the attractiveness with arbitration, ie, as the most efficient and reliable way of settling disputes.

Peers and clients say: “He is a top arbitration practitioner” “Mr Ewerlöf is reliable, prompt, diligent and dedicated to the matter at hand” “Pontus is an excellent and highly experienced counsel” whoswholegal.com/thought-leaders

Huáscar Ezcurra

Bullard Falla Ezcurra+

Lima www.bullardfallaezcurra.com hezcurra@bullardfallaezcurra.com Tel: +511 6211515

Biography Huáscar holds an LLM from Yale University and earned his LLB from Pontificia Universidad Católica del Perú. His 20-plus years’ experience spans domestic and international commercial arbitration, as well as investment arbitration, in sectors such as oil & gas, energy, infrastructure, construction, telecommunications, etc. These, in cases administered by the Lima Chamber of Commerce, Parisbased International Chamber of Commerce, International Centre for Settlement of Investment Disputes, United Nations Commission on International Trade Law, and others.

Arbitrators & Counsel

What inspired you to pursue a legal career?

When I was young, I was very interested in economics and market development. As I progressed in my studies, I understood the importance and necessity of the relationship between law and economics for the proper functioning of our institutions. This led me to look for ways in which economics could be used to improve and resolve legal disputes. Solving legal problems through innovative mechanisms such as the one described above led me to pursue my career from this interdisciplinary approach. Arbitration has allowed me to put both specialties into practice in an innovative and effective way. The reality is that I have never envisioned myself in a professional role other than that of litigant.

What challenges did you face when setting up your own firm?

For me, starting a firm is starting a business. So, when you are young and new to the market, you have to look for ways to attract attention to your product or services. I think that’s the first challenge you face when you start a firm: attracting clients and creating a brand that sets you apart from your competitors. On the other hand, a big challenge is to build a team that you can trust and that you are sure will collaborate with you to help you get your product or services to market. I believe that choosing the correct people is the first ingredient to ensure success and client attraction towards our firm. This again, when competing with several firms, tends to be difficult. Finally, another challenge that arises in these initial moments is to make your clients trust your work and that of your team. I believe the best way to achieve this is to provide your team with opportunities to specialise and develop academically and thus, the quality of our work will exceed expectations.

What advice would you give to someone looking to start their own firm?

The most productive firms that attract the most talent are those that care about the well-being of their members. My main and first advice to lawyers who are embarking on this path is to focus, in addition to their results and client satisfaction, on the

academic and personal development of their members. Also, remember that a firm is composed of lawyers, administrative and support staff, so the proper development of all these groups must be guaranteed. A second piece of advice is integrity. Integrity is the most important competition factor in being chosen as a firm in the long run. Each and every single member must have high standards for themselves and for the firm, which naturally makes sure that we enjoy our work and our final products reflect this. Finally, the most successful firm is the one who works efficiently and in an interdisciplinary way. This involves using innovative tools and studying not only the law but all the branches of knowledge necessary to understand each case. In our case, we have not only focused on the study of law, but also different techniques from theatre directors with whom we have worked closely, but also the study of psychology and how it affects our portrayal. We have prioritised studying and understanding human emotion and behaviour, which clients appreciate.

As the world evolves, so do the types of disputes, the ways of resolving them, the practices and the knowledge we obtain. I am a firm believer that arbitration evolves, both due to technology and user preferences. However, although there is a tendency to prefer alternative dispute resolution mechanisms other than arbitration, I do not believe that this will lead to the disappearance of arbitration, mainly due to its enforceability. In this sense, I believe quite the contrary. I think it is an opportunity for us to innovate in its rules and adapt to user needs to make it attractive. Let’s focus on the idea that innovation and adaptation will prevent arbitration from falling into the back seat. An example of this is the increasingly frequent use of emergency arbitration, or the creation of expedited arbitration processes in various parts of the world,

whoswholegal.com/thought-leaders

which reflects how arbitration institutions are evolving and setting new rules in favour of arbitration.

To what extent should more b e d o n e to i m p rov e t h e transparency of arbitration proceedings?

Many arbitration cases are confidential because of the subject matter or the parties in dispute. In some scenarios disclosing details of parties going through an arbitration has an impact on the proper conduct of the arbitration and the reputation of the parties. This is one of the main characteristics of arbitration, which makes it attractive for many users who seek it as a mechanism for dispute resolution. However, I believe that one way to contribute to transparency considering the above is through the publication of awards that do not disclose the specifics of the parties in dispute, but rather the logical legal reasoning that went into reaching the decision. This, for example, through different portals managed by arbitration institutions, who can oversee the publication and who has access to it. Now, regarding transparency for the appointment or selection of arbitrators, I believe access to information is key to the success of the resolution of the dispute. Not only will it provide opportunities by increasing the diversity among arbitral tribunals, but it will provide confidence to fellow arbitrators, the parties and the arbitral community. By doing so, we would be widening the scale of selection and thus promoting the growth of arbitration.

How is increased scrutiny towards social and environmental w elfare affecting investment-treaty arbitrations?

The current interest in social and environmental welfare has led to a greater incidence of regulatory and sanctioning bodies in the drafting of environmental laws. Likewise, this has led to increasingly severe sanction mechanisms for conduct in violation of these laws. However, in several cases, the implementation of sanctions has not been adequate, violating principles such as the “polluter-pays”. These circumstances have generated controversies between investors and states, which has reduced the interest in investing in these countries.

Looking back over your career, what is the most interesting arbitration you have been a part of?

In fact, it was the first international arbitration I participated in as counsel, 20 years ago. This was an arbitration seated in Miami, under UNCITRAL arbitration rules. It happens that our firm was counsel to a Peruvian-owned company. It was a wonderful experience, as it gave us the opportunity to learn from the best arbitrators in the world, who were appointed as members of the tribunal. Likewise, we learned from one of the best firms in the world, who were counsel to the counterparty. We had 23 days in a row of hearings, including interrogations of witnesses

and experts, which made a well-rounded experience. I emphasise the fact that we gained magnificent knowledge, and we achieved a great result for our client, who was very satisfied. This made it an enriching experience, both on the personal and professional levels. I classify it as a true PhD in international arbitration. It was very satisfactory, but above all else, it represented the start of our arbitration practice at an international level.

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

My main goal regarding Bullard Falla Ezcurra+, as a firm, is to establish itself

as an international firm. In that sense, we aim to expand our cases as counsel of international arbitrations, mainly in Central America and Latin America, and then Spain and Europe. As such, in the long run, our objective is to set up offices in different cities, with new team members that can contribute different worldviews, knowledge and practices to innovate and improve our practice. Secondly, I would like to keep receiving appointments as international arbitrator. I have had the opportunity to be a member of arbitral tribunals in international arbitrations and firmly believe those experiences will boost my progress. Thus, I would like to consolidate my position as an arbitrator at the international level.

Peers and clients say: “Huáscar is a truly excellent arbitration practitioner” “Mr Ezcurra is a fantastic lawyer” “He is a top practitioner in his jurisdiction” 70

Arbitrators & Counsel

Informing commercial trademark decisions

World Trademark Review is the leading intelligence platform informing and analysing commercial trademark decisions by translating trademark law into business sense.

Subscribe today www.WorldTrademarkReview.com subscriptions@WorldTrademarkReview.com

Xavier Favre-Bulle

Lenz & Staehelin

Geneva www.lenzstaehelin.com xavier.favre-bulle@lenzstaehelin.com Tel: +41 58 450 70 00

Biography Dr Favre-Bulle has more than 25 years of experience in dispute resolution and has been involved in some 255 arbitrations as counsel or arbitrator (eg, sales agreements, distribution, licences, shareholders agreements, postM&A disputes, etc, in various business industries). At Lenz & Staehelin in Geneva, Dr FavreBulle leads the Arbitration group and the sports law sector. He is president of the Arbitration Court of the Swiss Arbitration Centre and senior vice-chair of the IBA Arbitration Committee.

Arbitrators & Counsel

What inspired you to pursue a career in law, and take a special interest in sports law?

A good mix between chance and opportunities – hardly a true vocation. What matters in my view and what makes us successful is to become passionate when discovering new fields, such as contract law and dispute resolution when I studied law. My interest in sports law came through the handling of (fascinating) arbitration cases before the Court of Arbitration for Sport (CAS).

Looking back over your career, what is the most interesting sports case you have been a part of, and why?

Difficult to choose… I liked acting in cases for the Fédération Equestre Internationale (FEI) dealing with the welfare of horses; I had an Asian nation behind me when defending a national hero in taekwondo; governance and ethics issues are quite sensitive and one is usually faced with strong and well-known individuals whose defence is similar to what is resorted to in high-profile criminal cases.

Can force majeure claims arising from the coronavirus pandemic still be brought in the near future or has the ship sailed on such claims? Force majeure is still there, but used in a wider manner, prayed in aid for different sorts of consequences resulting from the

crisis. The pandemic had the particularity of reviving the debate around the definition and scope of application of force majeure.

What further steps can be taken to ensure that arbitration professionals are more comfortable using arbitration hosting platforms and other technology increasingly used in the space?

Reliability, quality and simplicity remain key requirements. More options and speed can certainly be nice to have, but if the risk is that the system is down for a while or that the use is too complex or sometimes with poor output, the appetite for new technologies may not grow exponentially.

be a set of universal conflict principles across arbitration institutions? I do not believe in universal concepts. We already have good standards aimed at applying worldwide, but conflicts must then be assessed on a case-by-case basis. There must necessarily be some discretion left to the arbitration institutions deciding on conflict issues and to the courts for review.

Could e-discovery technologies be used in case assessment for smaller cases? What benefits would this bring?

Discovery, whatever its form is – electronic or not – is what makes arbitration expensive. Small cases should be conducted according to a process limiting document production.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree? What would you like to achieve No. The importance of this topic is exag- that you haven’t done so already? gerated. There exist solid standards (such as the IBA Guidelines on Conflicts of Interest) and good practice. Experienced arbitrators know what to disclose – neither to little nor too much – using pragmatism and common sense. A lack of impartiality/independence should not be presumed and become a weapon systematically used to derail an arbitration.

Given the increasing amount of conflicts arbitrators and counsel are experiencing, should there

Deal with a rather complex case in a much more original and efficient way than what one sees in all commercial cases: shorter submissions, less witness statements, less or lighter expert reports, more conferencing and interaction with the tribunal throughout the proceedings, ending up with an award with summary reasons, accepted by the parties based on the trust placed in the arbitrators having fully understood the dispute and how to resolve it.

Peers and clients say: “He is an outstanding arbitrator” “Xavier is a fantastic arbitration practitioner” “He provides brilliant counsel in complex commercial disputes”

whoswholegal.com/thought-leaders

Harold Frey

Lenz & Staehelin

Zurich www.lenzstaehelin.com harold.frey@lenzstaehelin.com Tel: +41 58 450 80 00

Biography Harold Frey leads the litigation and arbitration practice of Lenz & Staehelin in Zurich. He has acted in numerous large-scale cases (also involving states) before arbitral tribunals and state courts. Matters have included a wide range of legal issues and industries (with a particular focus on energy, pharmaceutical and construction). Mr Frey has profound knowledge and extensive experience in all aspects of corporate and M&A dispute resolution. In addition to his work as counsel, Harold Frey regularly sits as arbitrator.

Arbitrators & Counsel

Describe your career to date.

Since my studies and bar exams in Zurich and New York I have been practising international arbitration at Lenz & Staehelin for more than 20 years (with an interruption in 2005/06 when I worked as an associate in the arbitration group of WilmerHale in London). I became head of our Zurich arbitration practice in 2009 and head of the joint litigation and arbitration practice in 2014.

you a better ability to appreciate and understand commercial issues as they may arise in any dispute. It allows you to compare practices and results on a broad scale, enabling you to present your arguments in a way that would appeal to common sense and to arbitrators from different backgrounds and with different industry experiences. And many types of disputes occur over a broad range of sectors – mergers and acquisition disputes to name just one example.

What did you find most chall e n g i n g a b o u t e n t e r i n g Some practitioners report arbitration? that, post pandemic, arbitraI had the great fortune of working for tion costs are deterring parties outstanding practitioners, including Peter from bringing matters. Is this Hafter, Michele Patocchi and Gary Born, your experience? in the first years of my career. Thanks to their valuable mentorship and exposure to great cases, entering arbitration was not the challenge. If anything, the challenge was to quickly rise up to their expectation.

What are the advantages and disadvantages of arbitration compared to litigation?

The single most important advantage of arbitration is the flexibility it offers, allowing parties with different backgrounds to select arbitrators and conduct proceedings as they deem fit and tailored to the specific needs of the case. Depending on the parties’ arrangements, or if abused by one side or the other, this flexibility naturally has an impact on timing and costs of proceedings – often criticised as arbitration’s biggest disadvantages.

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

While specialised industry experience is important, a varied sector experience gives

This is not my experience. During the pandemic, especially at the beginning, clients often appeared rather risk averse and, thus, hesitant to start arbitrations. Post pandemic, however, considerations as to whether or not a matter should be brought to arbitration are similar as they had been before. As one notable shift in practice, users are now increasingly willing and prepared to conduct case management conferences and in certain cases even hearings online to save travel and infrastructure costs.

What are the key qualities that make for a successful arbitrator?

A genuine interest to engage with the facts. Being lawyers, arbitrators naturally take a keen interest in the law – and mastering the law is of course an indispensable quality for a successful arbitrator. But what often makes the difference between a good and an excellent arbitrator is the willingness to address – and the intellectual ability to understand – complex facts, be it in the first instance when examining witnesses and experts or eventually in the award.

Another key quality, in particular for a chairperson, is the ability to master procedural aspects in a way ensuring efficiency yet providing each side a fair opportunity to present its case. Sometimes this may also require the courage to discipline unruly parties.

Where, in your opinion, does the future of the practice area lie?

Notwithstanding certain criticism about the length and costs of arbitration proceedings (and recent trends in document production have added to that criticism), arbitration will remain the single most important dispute mechanism to resolve international commercial disputes. I doubt that international commercial courts will become a true alternative in the near future. Still, arbitrators, counsel as well as party representatives and the arbitration community at large must work hard to improve the efficiency of the process – not by introducing new rules and guidelines, but by using common sense and sensibly applying existing case management tools in every single case.

What is your greatest achievement to date?

Over the years, I had the fortune to work with outstanding practitioners and be involved in fantastic cases (recently often for or against states or state-owned companies), most of which I like to think turned out very favourably for our side. Personally, my greatest achievement so far is that I was able to build up and grow an important arbitration practice at our firm in Zurich over the past 15 years.

Peers and clients say: “Harold is sharp and extremely well prepared” “He is an excellent arbitration practitioner”

whoswholegal.com/thought-leaders

Simon Gabriel

Gabriel Arbitration AG

Zurich www.gabriel-arbitration.ch s.gabriel@gabriel-arbitration.ch Tel: +41 44 206 20 80

Biography Simon is the founder of the Swiss arbitration law firm Gabriel Arbitration AG in Zurich. He has participated in over 100 international arbitration proceedings as chairman, co-arbitrator, sole arbitrator and legal counsel. Simon is admitted to all Swiss courts, holds a PhD in dispute resolution and an LLM in common law advocacy. Simon is member of the Swiss ICC Arbitration Commission and is endorsed in various arbitrator panels and legal directories.

Arbitrators & Counsel

What did you find most challenging about entering the field of international arbitration?

When I left university after my PhD, I had to find a law firm that first, had international arbitration work on a regular basis and, second, was not already packed with enthusiastic young arbitration lawyers. Already 15 years ago, this was quite a challenge. And today, it appears to me, it has certainly not got any easier.

What qualities make for an effective advocate in contentious proceedings?

A good storyteller and systematic thinker who is well prepared on the file will be an effective advocate. A good storyteller knows that the story of a case must be lifelike – and if it is not, there must be a very good explanation why a case is indeed exceptional. As arbitrator, I hear a lot of excellent lawyers who develop sophisticated factual and legal theories. But sometimes I miss the link to reality: what did really happen there? Why is there a dispute? Advocates who answer these questions in a lifelike manner based on the evidence on file are often extremely convincing. A systematic thinker has a big advantage as consistency is a must. Every contradiction or change of factual or legal position during adversarial proceedings diminishes the credibility of the advocate and his or her case. In big cases, it can be quite challenging to keep the overview. Victory loves preparation. The best advocate who appears in court unprepared will lose the case. It is as simple as that.

Since you began your career, what has been the biggest change you have seen in relation to the way that arbitration proceedings are conducted? It is probably the lengths of the submissions. When I started, a senior arbitration

partner in a major international law firm told me (and everybody else): “A claimant who is not in a position to present its case on 20 pages has no claim.” After some years, I asked him: “Should we maybe raise the threshold to 40 pages? Otherwise, we will hardly see any justified claims, anymore…”. Nowadays, we often start with 50 to 100 pages for statements of claim and end up with multiple-hundred pages submissions in the second exchange of briefs (plus voluminous expert reports and very comprehensive witness statements). I am not always sure to what extent the big teams of lawyers who author these exceptional submissions care about what is still manageable and persuasive for the members of the arbitral tribunal – sometimes, less (volume) is more (convincing).

How do you, as an arbitrator, try to ensure hearings are fair for all parties? I try to offer reasonable expectation management before and during the hearing. So that counsel know what to expect and are thus prepared. If there are no (big) surprises on the manner in which the hearing is conducted, the hearing is typically considered as fair by the parties.

How efficient have online proceedings become since the beginning of the coronavirus pandemic?

What long-term effects do you see covid-19 having on arbitration practice?

There will certainly be less hesitation to agree on fully virtual or hybrid hearings, which is positive in the sense of an additional option for suitable cases. Whether or not the handshake will be back soon remains to be seen. But, frankly speaking, I hope that there will not be too many longterm effects of covid-19 – neither in arbitration, nor more generally speaking…

What steps can younger arbitration practitioners take to improve their chances of getting arbitrator appointments? Is there an important role to play here for experienced lawyers?

I think “generating trust” is the keyword. Other lawyers must first get to know the names of these younger colleagues and then gain the trust that they are capable and fully devoted to deliver the bestpossible service as arbitrators. This is sometimes neglected: the arbitrator is not the boss of the case – she or he is rather the first service provider. Finally, a well-communicated “unique selling proposition” can be helpful in this regard (eg, specialisation in a certain industry or legal system), so that people remember.

In my experience, virtual hearings can work out fairly well, if they are carefully prepared (eg, with the assistance of a professional third-party host) and all parties agree to have a virtual hearing. However, in cases where numerous voluminous documents must be discussed with witnesses (and maybe even compared), the “share screen” functions on Zoom and other platforms quickly reach their limits.

Peers and clients say: “Simon is excellent as both counsel and arbitrator” “He is very experienced and has an excellent track record” “An excellent and very smart lawyer” “He’s a really good and effective co-arbitrator” whoswholegal.com/thought-leaders

Claudia Benavides Galvis

Baker McKenzie

Bogotá www.bakermckenzie.com claudia.benavides@bakermckenzie.com Tel: + 57 1 6341500

Biography Claudia is the global chair of Baker McKenzie’s dispute resolution practice group. She is a highly regarded expert in domestic and international arbitration, and transnational litigation. Claudia has 25 years of extensive experience handling complex disputes related to international business transactions including construction and infrastructure projects, mergers and acquisitions – with a focus on post-acquisition disputes, investment protection, distribution and supply agreements, among others. She has advised and represented companies from various sectors such as energy, mining, infrastructure, transportation, industrials, healthcare, media, telecoms and technology.

Arbitrators & Counsel

What inspired you to pursue a legal career?

Developing strong reasoning and analytical skills that would duly equip me to thoroughly approach and fairly solve problems, were key drivers when deciding to study law. Some years later, in the early stages of my career, I experienced through daily practice the significance of the rule of law and effective dispute resolution mechanisms, not only for the attainment of the business objectives of the companies I have been representing but also for the well-being of the communities we served more broadly. At the core of an efficient and effective dispute resolution system rests the peaceful coexistence and progress of our societies. This certainly inspires my every day practice.

parallel I sat on the Latin America dispute resolution steering committee of the firm and in year 2018, I was appointed chair of that committee. Since the year 2019 I have had the honour to serve as global chair of the global dispute resolution practice group of Baker McKenzie. I have been very fortunate to work with incredibly talented and inspiring colleagues and clients around the world, participate in challenging and demanding cases, interact with people from diverse cultures and backgrounds, and be part of an ever evolving and exciting legal community. Overall, it has been a fascinating journey from beginning to end, and a continued learning process at all levels.

objective. There are brilliant and talented arbitration practitioners who may very well increase the pool of available arbitrators but are not visible enough or, if visible, not appointed due to unconscious biases in relation to gender, age, race, disability, sexual orientation, among others. We have seen in recent years an increased awareness of the importance of growing the number of diverse candidates appointed as arbitrators. Institutions have played a key role and have achieved significant results, especially regarding the number of female appointed arbitrators. While going in the right direction, much more needs to be done and all of us who practice arbitration, as well as arbitration users, have a responsibility to continue raising awareness, supporting initiatives and taking concrete actions in this space.

The current arbitration market is reportedly working with a Could you describe your career small pool of arbitrators, and to date? it is becoming increasingly dif- What advice would you give I have always been a disputes lawyer, ficult to find arbitrators who do to someone starting out in since day one. First, representing and not have a conflict of interest. Do arbitration? advising protection and indemnity clubs you agree, and if so, how can this Arbitration is a captivating and intellectu(mutual insurance associations) and issue be effectively addressed? ally stimulating field of law. Rigour, deditheir members in relation to a wide variety of maritime claims. My practice then expanded to international business disputes more broadly when I joined Baker McKenzie back in 2003 as an associate, and had the opportunity to represent multinational companies coming from multiple sectors, in different types of disputes. After working for a few years in the litigation and arbitration team of another very well-regarded Colombian firm, in year 2010 I returned to Baker McKenzie to lead the disputes group of the Bogotá office. In

The independence and impartiality of arbitrators is a key cornerstone for the legitimacy of arbitration as an effective and trustworthy mechanism for dispute resolution. Taking active steps to increase the pool of duly qualified arbitrators would definitely benefit arbitration users not only because the likelihood of finding a non-conflicted arbitrator increases, but also because the legitimacy and quality of the decision-making process improves as well. Diversity and inclusion both play a fundamental role in achieving this

cation, thoroughness, integrity, respect, professionalism, are all attributes that come to my mind when thinking of arbitration practitioners that I admire the most. The users of arbitration seek the prompt, cost-effective, fair resolution of their disputes and arbitration practitioners should embrace these objectives. The needs of the international business community in a constantly changing world provide a wide array of opportunities for those interested in building a rewarding practice in international arbitration.

Peers and clients say: “She is an experienced and reliable lawyer” “Claudia is amazing in cross-examination” “A true leader in the field of arbitration” “Her thinking is consistently clear and profound” whoswholegal.com/thought-leaders

Ulrike Gantenberg

Gantenberg Dispute Experts Düsseldorf www.gantenberg.legal

u.gantenberg@gantenberg.legal Tel: +49 211 176 077 00

Biography Ulrike is one of the leading personalities in the field of dispute resolution – in particular for national and international arbitration. Due to her expertise, she is regularly appointed as arbitrator and advises her clients as party representative in complex proceedings. Two main core areas of Ulrike’s practice are turnkey construction (including energy related projects) and post-M&A (relying on her extensive experience as an advisor for corporate and M&A). Furthermore, she is a member of various boards and committees of international arbitration institutions.

Arbitrators & Counsel

What motivated you to special- What makes Gantenberg Disise in arbitration? pute Experts stand out from its I have always wanted to work interna- competitors in the market? tionally. I am passionate about dialogue, challenges, looking at things differently and solving problems. As I come from a family of lawyers, being a lawyer was an anti-climax – and the last thing I wanted to do. I wanted to be an ambassador. I am not exactly sure what stopped me, but I know my trigger moment for arbitration. In University I did a seminar on the CISG with Professor Dr Claude Witz in Saarbrucken. It was not exactly the Vis Moot, but something very similar. I was a counsel for Respondent, and I absolutely fell in love with everything that it entailed. That’s when I realized I wanted to specialise and work in arbitration and that after all, I would enjoy being a lawyer.

To stand out, you must be unique. We are. We are extremely dynamic, and don’t have a box to fit into. We live to our values, are focused, transparent to where we want to go and we all love challenges and actively seek them. Our team is spontaneous, very careful in communication and flexible. We have developed a natural approach to seeing things from many different sides and change perspectives; and to find the better end. And of course, we love what we do! If you go to work happy even after a long night of drafting, that is a great sign that you are doing the right thing. Our clients seek our company and activity on their tricky paths.

need to listen, be strict but caring, be clear and have an out of the box thinking. You also must be permanently curious to understand briefs, motivations, contexts, people, cultures, expectations and don’t take things personally. Empathy is extremely important and you need to be able to take people along, as if you had huge arms to take all parties (and at least the arbitrators) together and help them arriving in a safe harbour. During the journey, you must be flexible, but not lose sight of the harbour and be aware that albeit the wind may be stronger from the north or west, you should not lose confidence and passion, not miss the purpose. It is also important to understand how real life is, so you are not unreasonable with assumptions and expectations, for example. And of course, you must be independent, transparent and clear about mandates.

The first thing that comes to mind is independence and avoiding conflicts of interest. But there is much more to it. You may feel self-contained after a couple of years of experience, and different from other practice areas, arbitration lawyers don’t really need big law firms. So, what is the downside to setting up your own boutique? None. It will be more dynamic, more flexible and the decision making process will be much faster. Also joy and enthusiasm is more immanent. Generally, working in a boutique makes every tiny issue of business and work live very immanent. Great new motivating challenges for me.

More and more practitioners What qualities make a success- are leaving firms to set up their ful arbitrator? own arbitration boutiques. Being an arbitrator, besides knowing the What are the main drivers for law you in particular need soft skills. You this in your experience?

To what extent is arbitral discretion limited by due process?

Due process is a fundamental stone of any process, but the “due process paranoia” can be a challenge for arbitral tribunals, especially when counsels (mis-)use due

process arguments to jeopardize proceedings. That is where the arbitral tribunal must know its case, be clear and pursue a clear path without fear. Unfortunately, there are still enough arbitral tribunals who have no constant knowledge of their case and are easily intimidated. In regards to due process paranoia the arbitration community could take some lesson from state court judges.

What are the advantages and disadvantages of arbitration compared to litigation?

Everyone talks about cost-efficiency as an advantage, but that is not necessarily true. Arbitration can (and very often is) be more costly and may even last longer than litigation. However, being able to choose the expertise of who will decide your dispute, as well as the language and applicable law, the immanence of witnesses and their interrogation are huge advantages along with the confidentiality. For complex huge and also international disputes (even inside Europe), there is no alternative to me.

What advice would you give to someone looking to start their own firm?

Go for it! It will turn out alright. Know your strengths, invest on them and keep your ears, eyes and mind open. Reality is always different from what you have expected, and even if you are super prepared, you will never be prepared for every situation you may face. Just trust yourself and do it.

What is the best piece of advice you’ve ever received?

The first one is trust your instincts. Intuition hardly fails. The second is don’t be afraid of anything, in particular not of arbitral tribunals. You should be polite and collegiate, but don’t be afraid to stand your ground. That is very important to succeed.

Peers and clients say: “Ulrike is an incredibly skilful arbitrator” “She has been very successful in establishing her boutique” “She does an excellent job as arbitrator”

whoswholegal.com/thought-leaders

Gaela K Gehring Flores

Allen & Overy LLP Washington, D.C. www.allenovery.com

gaela.gehringflores@allenovery.com Tel: +1 202 683 3861

Biography Gaela Gehring Flores is a partner in Allen & Overy’s international arbitration practice. Gaela represents multinational corporations and sovereign states in international commercial and investment arbitrations in the Americas. Gaela’s experience includes over 50 high-profile ICSID, ICC, LCIA, PCA, and ICDR/AAA arbitrations as well as litigation and appellate proceedings before US federal courts. Gaela co-chairs the DC Bar Inter-American Legal Affairs Committee and hosts the DC Bar podcast “The Tea on International Arbitration”.

Arbitrators & Counsel

What inspired you to pursue a career in law?

I told my mother at a very young age that I was going to be president. I shifted a bit from there and decided by age 12 that I wanted to be a lawyer. I am not sure where I got the idea to become a lawyer. Call it divine intervention. As I got older, I also realised that I didn’t just want to be a lawyer; I wanted to be a lawyer who got to practice bilingually in Latin America. My legal career began as a law clerk for the Hon. Paul Friedman at the U.S. District Court for the District of Columbia and an associate at Paul Weiss Rifkind Wharton & Garrison. I shared my dream of developing a dispute resolution practice in Latin America with Judge Friedman, and, being the excellent mentor that he is, he connected me with Carolyn Lamm and Abby Cohen Smutny. Eventually I would get to work with these amazing women, which helped confirm my calling.

What part of your international arbitration practice do you enjoy the most?

I truly enjoy the dynamism of moving between and engaging in multiple legal regimes, whether contemplating an issue of public international law, or the overlapping international legal issues between sovereign states and international corporate entities. My practice is inseparable from my team, and I have especially enjoyed getting to build teams that are not just substantively preeminent but also collaborative and committed to our shared vision. Every day I learn something from the brilliant people I get to call colleagues, attorneys and non-attorneys alike. In this latest chapter of my professional journey, I have very much enjoyed getting to join forces with Patrick Pearsall. He is a superb attorney, a wonderful human being, and I could not imagine a better partner for cultivating an Americas practice.

this mean in practice? It means getting beyond words and diving into action by establishing concrete goals for increasing not only diversity, but equity and inclusion as well. And, given the role that compensation plays in the law firm world, in order to see meaningful progress, partners and managers should see their compensation affected by demonstrable efforts that have led to increased diversity, equity, and inclusion. Furthermore, the work of Kate Manne should be required reading for anyone who truly wishes to contribute to and lead efforts to increase DEI.

not have a conflict of interest. Do you agree, and if so, how can this issue be effectively addressed?

The current arbitration market is working with a small and inexcusably non-diverse pool of arbitrators. It is thus no wonder that conflicts have become an issue. All players in the international arbitration market – arbitral institutions, law firms, established arbitrators, and parties to arbitrations – need to prioritise diversity in arbitrator selection. This is not an issue of a shortage of qualified diverse candidates; it is the reluctance of nearly all players in the system to move away from the cramped, non-diverse pool of arbitrators that has been and continues to be favoured.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients? Some practitioners report that, I am dangerously treading in one of my post pandemic, arbitration younger sister’s fields of expertise – costs are deterring parties from neuropsychology – but what science tells bringing matters. Is this your us (and what many of us have known from experience? experience) is that increased diversity in the types of things you learn leads to the development of more extensive and complex neural pathways. Learning more than one language, or gaining diverse geographical, legal culture and sector experiences allows for more thorough, sophisticated, and creative problem solving for clients.

What are the advantages and disadvantages of arbitration compared to litigation?

The most significant advantage of arbitration over litigation is arbitral decisions’ comparative ease of global enforceability. I also note arbitration’s considerable agility during the pandemic: when many courts were bogged down in traditional rules requiring in-person hearings and hard copy evidence, arbitration demonstrated its power and agility to adapt to rapidly changing circumstances, swiftly adopting and developing virtual and digital solutions to a world in crisis.

What steps can be made to The current arbitration marincrease diversity in the arbi- ket is reportedly working with tration field? a small pool of arbitrators, and Accountability is critical, particularly at the it is becoming increasingly difmanagement and partner level. What does ficult to find arbitrators who do

In my experience, arbitration costs are not a significant deterrent – either preor post-pandemic – to parties initiating arbitral proceedings. I have experienced clients who are more reluctant to initiate adversarial proceedings (either litigation or arbitration) because they prioritise preserving an ongoing business relationship. Consequently, I have seen more parties during the pandemic willing to explore mediation or conciliation to resolve disputes.

How would you like to develop your practice over 2022-2023?

This coming year will be an exciting one for my practice. Allen & Overy is an international disputes powerhouse, which in many ways it is just being introduced in the Americas. My work will involve developing Allen & Overy’s connections to ensure that clients in the Americas continue to have access to the best legal teams in the world. The past few years have shown us the various disruptors at play in all industries across global markets. My practice over the next year will be hyper-focused on embracing the reality of endemic disruptors to develop legal strategies that best serve our clients’ needs.

Peers and clients say: “Gaela is absolutely brilliant in hearings” “She is an incredibly skilled cross-examiner” “Ms Gehring Flores does a tremendous job taking apart the other party’s testimony” whoswholegal.com/thought-leaders

Beata GesselKalinowska vel Kalisz

GESSEL Attorneys at Law Warsaw www.gessel.pl

b.gessel@gessel.pl Tel: +48 22 318 69 10

Biography Expert in arbitration, M&A, PE and commercial law. Participated in approximately 150 arbitrations (ICC, SCC, VIAC, IAA, SCAI, UNCITRAL, FCC, Lewiatan, KIG, SIDiR and National Depository for Securities). Former member of the ICC International Arbitration Court (2015–2021) and president of the Lewiatan Arbitration Court (2011–2017). Chairs the audit committee of the Polish Private Equity Association. Adjunct professor in international commercial arbitration and M&A transactions at Cardinal Stefan Wyszynski University.

Arbitrators & Counsel

What attracted you to a career in arbitration?

I started my career as a transaction lawyer. Once I gained a reputation in M&A/PE, I began to receive appointments as an arbitrator, mostly in M&A cases. Thanks to my background, I could bring to the table an understanding of the transaction in its business aspects. Over time, there were so many nominations, and the portfolio of cases increasingly diverse, that I decided to focus mainly on arbitration, and it became the crowning achievement of my career so far.

arbitration) and Russian. In my experience as an international arbitrator, most cases were in English. However, my knowledge of Russian was useful in matters where documents were originally in Russian. It’s just a matter of better understating nuances, sometimes lost in the translation. For the parties, it also comes down to more efficient conduct of the proceedings and possible cost reduction. In several of my cases, the documents submitted by the parties were presented in an original language other than the language of the arbitration, without the need for providing translation.

What qualities make for a successful arbitrator? What role do you see thirdThe ability to analyse and synthesise, to party funding (TPF) playing in identify and define key problems at hand, arbitration moving forward? are crucial, yet these skills will be of little use in the absence of business sense, management skills, and authority among the parties.

Given your expertise in M&Arelated disputes, are you noticing any recent developments in the types of cases you are instructed on?

So far, I haven’t noticed too many changes in M&A disputes. Although the M&A sector is unique, with its own special characteristics and practices, and each case has its own circumstances – the legal character doesn’t differ that much. M&A disputes usually concern breach of R&W, interim management of the company between signing and closing of the transactions, or price adjustments. That said, the extraordinary circumstances (covid-19 pandemic, war in Ukraine) may be affecting the preclosing stages of transactions, so it’s possible that, over time, we will notice some changes.

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

I speak Polish (my native language), English (indispensable in international

TPF is an interesting solution. Arbitration can be quite costly, and TPF gives parties who have a strong, solid case but lack funds access to all the advantages that arbitration has to offer. Especially now, when this institution has been regulated by most of the arbitral institutions, it affords more equal access to justice irrespective of financial circumstances.

the Most in Demand Arbitrators Europe ranking as the only arbitrator from the CEE region.

As senior partner at GESSEL, what are your main priorities for the firm’s development over the next five years?

M&A has been one of the core areas of GESSEL’s practice ever since our inception; the dispute resolution practice group is now equally important. We are now recognised as a Polish market leader in these fields. Our efforts focus on strengthening this position, but we do not care about growing in numbers (employees), we prefer to see ourselves as a boutique firm offering excellent intellectual skills. This is why we appreciate the unique values of our practitioners, we try to keep up with the new generation for whom, I hope, we create conditions conducive to growth not only in the above mentioned fields. They, in turn, open new opportunities before us, so that we can offer our clients not just knowledge, but also unrivalled experience and a fresh perspective.

You have enjoyed a very disHow has your membership of tinguished career so far. What the of ICC International Arbi- would you like to achieve that tration Court enhanced your you have not yet accomplished? dispute resolution practice? Although I feel professionally fulfilled, It was an amazing six years. Through this time I’ve scrutinised hundreds of awards by some outstanding arbitrators from all over the world. That gave me a completely new perspective and much deeper understating of the arbitration process, not limited by my geographic origin or the legal system I’m coming from. Thanks to this experience, I’ve grown as an arbitrator. But this time also had a more practical effect for me both as an arbitrator and as counsel – knowledge of how the ICC operates as an institution, how to efficiently navigate the procedures, what the secretariat takes into account when deciding on arbitrators’ challenges, etc. I believe this experience has been appreciated when, in 2021, I was first named in

I hate stagnation. And because I found great pleasure combining a legal career with academia, every now and then I choose a fascinating legal problem that absorbs me completely as I explore it. In 2019, I published my habilitation thesis, “The Legal, Real and Converged Interest in Declaratory Relief”, focusing on declaratory relief in litigation and arbitration. At present, I’m researching the problem of discretionary powers granted to arbitrators in terms of application of substantive law.

Peers and clients say: “Beata has a great deal of organising, creative and executive ability” “Determination and strength of character are among her most outstanding features” “She is resourceful, and responds to any challenge with great vigour and resolution” “She is highly experienced in commercial arbitration” whoswholegal.com/thought-leaders

Pierre-Yves Gunter

Bär & Karrer AG Geneva www.baerkarrer.ch

pierre-yves.gunter@baerkarrer.ch Tel: +41 58 261 57 00

Biography Pierre-Yves Gunter has been active in international commercial arbitration since 1991. He has acted as counsel and arbitrator in over 241 cases. After 19 years with Python (formerly Python & Peter), he joined Bär & Karrer in January 2017 as partner and co-head of the international arbitration group, which consists of 40 lawyers.

Arbitrators & Counsel

What qualities make for an effective arbitrator in today’s climate?

understand the role of arbitration institutions.

What role do in-person arbitration hearings have to play in a world that has been impacted by the coronavirus pandemic?

With my new co-head Nadja Jaisli we will continue to ensure that our experienced arbitration team enjoys the recognition and visibility that it deserves. When possible and in order to further strengthen the integration of the team we will involve members of more than one office on cases.

A solid preparation and a good organisation combined with a good understanding of the expectations of the parties and of their counsel.

The pandemic has demonstrated that virtual hearings could be effective. However, whereas they will probably remain the norm for short hearings such as procedural hearings, in person arbitration hearings will continue to play an important role and will quite often be preferred. Counsel tend to prefer conducting crossexaminations during in-person hearings. The interaction between the various participants as well as the interaction within the arbitral tribunal are better and more effective with in-person hearings.

As co-head of Bär & Karrer’s international arbitration group, what are your main priorities for the firm’s development over 2022–2023?

To what extent has the international arbitration community met the challenge of improving diversity in recent years? The situation has in my view has really improved in particular in Switzerland, whereas in some countries further efforts are necessary.

As a result of the shift towards What role do you see third-par- virtual arbitration, what is the ty funding playing in arbitration effect on arbitration hearing moving forward? centres and their future? Third-party funding will continue to play an increasingly important role.

The situation is more challenging today but as mentioned previously there is still a real demand for in-person hearings therefore I am not too concerned about the future of arbitration hearing centres.

How has your previous chairmanship of and memberships on committees across various arbitration centres compliment What has been your greatest your practice? achievement to date? Those experiences were and are very helpful in my practice. They allowed me to develop my network and to better

To be recognised at the international level as counsel and arbitrator.

Peers and clients say: “Pierre-Yves is a really excellent practitioner” “He is THE go-to arbitrator” “Pierre-Yves is one of the best” “He’s always a pleasure to work with” whoswholegal.com/thought-leaders

Grant Hanessian

Hanessian ADR New York hanessianadr.com

ghanessian@hanessianadr.com Tel: +1 347 267 7795

Biography Grant Hanessian is an independent arbitrator and adjunct professor at Fordham University School of Law in New York. He is former co-chair of Baker McKenzie’s global international arbitration practice, US member of the ICC International Court of Arbitration and author or editor of several books on international arbitration subjects, including ICDR Awards and Commentaries. Mr Hanessian has more than 30 years’ experience as arbitrator and counsel in disputes concerning investment treaty, energy, construction, financial services, intellectual property and other matters.

Arbitrators & Counsel

Why did you decide to establish a practice as independent arbitrator?

I tremendously enjoyed my time at Baker McKenzie, working with talented colleagues around the world on interesting cases. But, understandably, parties and institutions increasingly seek to appoint independent arbitrators to minimise the risk of challenges and I did not believe that I could focus on work as an arbitrator with the conflicts of one of the world’s largest law firms. There does seem to be a need for more independent arbitrators with substantial experience in complex cases, and I’ve been fortunate to have received appointments in the first months of my “independence”.

Out of commercial arbitrations and investor-state cases, which do you prefer and why?

For more than 30 years, a substantial part of my counsel work concerned arbitrations involving states and state entities, including cases arising under investment treaties and concession agreements of various kinds. I enjoy the public international law aspects of these cases but also appreciate that ISDS systems will continue to evolve. Many critiques of the “legitimacy” of investor-state arbitration apply with equal force to commercial cases, particularly those involving industries with substantial societal and environmental impact (eg, extractive industries, pharma). Arbitral

institutions are of course attentive to these concerns: in both investor-state and commercial arbitration there are significant movements towards more transparency and improved panel representation by persons historically underrepresented. However investment treaty arbitration may evolve, parties to international contracts will always want an alternative to the national courts of their counterparties. I do think that there is a need for more technical and financial support to enable less developed countries to defend, and potentially avoid, some of these claims, particularly given the increased availability of third-party funding for claimants.

What do clients look for when selecting an arbitrator?

At Fordham University School of Law in New York I teach two classes: a doctrinal course in international commercial arbitration and a “practicum” in which students simulate counsel work in an international commercial and investor-state arbitrations. International arbitration is a dynamic subject and students in both classes prepare and argue “hot topics” of the day, which keeps me current with new developments. Fordham has many excellent international LLM students specialising in dispute resolution, and it is helpful in my work as an arbitrator that I am constantly reminded of differences in the cultural and legal backgrounds of lawyers in the field.

contribute in the field. There are many international arbitration groups sponsored by bar associations, arbitral institutions and other professional organisations in which younger lawyers can contribute and make themselves known. Appointments (as arbitrator and tribunal secretary) and speaking engagements often, of course, result from personal relationships. It has been more challenging these past two years to initiate and maintain relationships, but younger lawyers should always continue to reach out to more experienced lawyers. Many experienced colleagues are happy to mentor and advise younger lawyers, and I’ve always done a lot of that.

Parties and counsel want arbitrators who will efficiently manage the proceedings, have familiarity with the relevant industry and legal theories, and will do the work necessary to understand the parties’ arguments and fairly decide the case. Everyone prefers to work with arbitrators who are respectful and considerate of counsel and the parties, and who seek quick, practical and effective resolution of procedura disputes that inevitably arise during a typical arbitration proceeding.

What advice would you give to young lawyers starting out in How does your role as a pro- arbitration today? fessor enhance your work in Work hard, make your own luck: seek private practice? out opportunities to write and otherwise

Peers and clients say: “An extremely thoughtful and well-prepared arbitrator” “Grant is very well respected and knowledgeable” “He is very able with broad commercial and investment arbitration experience” whoswholegal.com/thought-leaders

Bernard Hanotiau

Hanotiau & van den Berg Brussels www.hvdb.com

bernard.hanotiau@hvdb.com Tel: +32 2 290 39 00

Biography Bernard Hanotiau is a member of the Brussels and Paris Bars. Since 1978, he has been actively involved in more than 500 international arbitration cases in all parts of the world, in all sectors of industry. Mr Hanotiau is professor emeritus of the law school of Louvain University (Belgium). He is an advisory member of the ICCA Governing Board, a member of the Council of the ICC Institute and the Court of Arbitration of SIAC. He is the author of Complex Arbitrations - Multiparty, Multicontract, MultiIssue (Kluwer, 2006, second edition 2020).

Arbitrators & Counsel

What inspired you to specialise in arbitration?

After my law studies, I was appointed assistant professor of law in private international law. Through my university contacts, I became a member of the editorial board of the International Business Law Journal. I was asked to be the contact member for the International Chamber of Commerce. This is when I discovered the beauty of international arbitration and I decided to invest in this field, which was still in its infancy at that time.

How do you, as an arbitrator, try to ensure hearings are fair for all parties?

res judicata, and enforcement of awards against third parties. There are constantly new developments in these areas in terms of legislation, arbitration rules, court decisions and awards. I monitor all these changes and analyse them in my various articles and my presentations in conferences.

is practiced worldwide and there is a multiplicity of players everywhere. It is therefore much more difficult for a young practitioner to establish a reputation and build a substantial practice in arbitration. I would add that the practice has become much more complex and adversarial than in the past, up to the point where I sometimes wonder whether it can still be described as a peaceful method of dispute settlement.

To what extent is document production becoming increasingly burdensome in complex How does Hanotiau & van den disputes? How can this be Berg stand out among competiresolved? tion in the market?

One of the main duties of an international arbitrator is to make sure that the procedure complies with principles of fairness, due process and equality. You have to listen to the parties, hear their requests and eventual complaints, strike a balance whenever needed, and always evaluate your final decisions in light of the above principles.

In procedural order n° 1, the arbitral tribunal specifies all the rules that have to be complied with in the requests for document production. In many cases, they are not followed by counsel. Many requests are much too broad or not relevant. So far, nobody has found a solution to this problem. Should we put a limit to the number of requests that each party could make in the document production phase? When the requests filed by a party are obviously unreasonable, the only thing that arbitral tribunals have been able to do, so far, is to take this into consideration in the allocation of costs.

We were the first to establish a boutique law firm in international arbitration, twenty years ago. As Mr Ma of Alibaba says: the most important is not to be the best but to be the first. We were the first and we have always worked hard to be among the best. Now, we also have a new generation that is very successful. We remain at the top of our practice as arbitrators, experts and also as counsel in enforcement matters in particular.

in complex arbitrations involving multiple parties and multiple contracts. The topic involves a lot of different issues, including non-signatories, joinder, consolidation,

When I started my career, there were very few players in international arbitration. The practice of arbitration was mainly limited to Europe. Nowadays, arbitration

to work hard and improve yourself and the work you are doing.

What is the best piece of career You have published extensively advice you have ever received? on international arbitration. We have an expression in French: “Il ne Are there any particular trends faut pas se reposer sur ses lauriers”, which and developments emerging What do you think will be the means, “You should never rest on your that you have written about greatest challenge facing the laurels.” In other words, you should never recently? next generation of arbitration consider that it is done. You have to put For the past 25 years, I have specialised practitioners? yourself in question all the time, continue

Peers and clients say: “One of the best presiding arbitrators around” “He is very efficient and knowledgeable” “A star figure in the arbitration world” “A sophisticated arbitrator with vast experience of complex arbitrations” whoswholegal.com/thought-leaders

Richard Happ

Luther Rechtsanwaltsgesellschaft mbH Hamburg www.luther-lawfirm.com

richard.happ@luther-lawfirm.com Tel: +49 40 18067 12766

Biography Richard is a partner in Luther’s complex disputes group. He has acted as counsel and arbitrator in numerous disputes under national and international rules, covering a wide variety of issues. He is particularly well known for his expertise in investment disputes as well as energy-related work. He has authored or co-authored more than 40 publications, including two volumes of the Digest of ICSID Awards (OUP) as well as a commentary on the ICSID Arbitration Rules.

Arbitrators & Counsel

How has the relationship between arbitrators and parties dev eloped ov er your career? How might this affect tribunals?

People have become full-time arbitrators earning their living by doing arbitrations. This changes the relationship from one of trust and confidence to a business relationship.

Are you noticing an uptick in certain energy matters experiencing commercial disputes? Why? There seems to be an uptick in post M&A arbitrations. It seems some parties try to shift responsibility caused by regulatory changes to the other party. Given that uncertainty about the future will continue to increase, so will these arbitrations.

Should tribunals be more bullish about corruption defences and examining evidence for corruption in proceedings?

No. Arbitrators are no criminal tribunals. They are neither trained nor equipped for that.

How is increased scrutiny towards social and environmental welfare affecting investment-treaty arbitrations? It is good if arbitrators become more conscious of the implications of their work. However, this should not distract them from deciding the legal case at hand.

Document production is regarded by many as a costly and time-consuming exercise that rarely results in the production In your experience, what advan- of determinative evidence. How tages can clients benefit from do you manage document proin hiring a bilingual arbitrator? duction in your arbitrations? The arbitrator might be able to understand the ‘subtext’ of what a witness says or a document means. Good interpreters are difficult to find. Also, the arbitrator can read the full document, even if only a part is translated. That enables them to understand the context of a document.

Early preparation of document production helps a lot. And not treating document production as a form of international discovery, as some US law firms and arbitrators seem to do, would help even more .

Virtual hearings and electronic filings are two main drivers to make arbitration greener. Since it is the clients’ arbitration, they can further or block that.

arbitration. Funders will need to resolve the conflict between complying with ESG on the one hand and obtaining necessary returns on the other hand.

What role do you see third-party In what ways is arbitration funding playing in arbitration becoming greener? Do clients moving forward? also have a role to play in this Third-party funding will have an importransformation? tant role in fostering ESG principles in

Peers and clients say: “One of Germany’s top investor-state arbitration counsel” “He has the excellent ability to provide complicated and complex information in a comprehensible manner” “A top practitioner for investment disputes” “Very bright and very powerful party counsel” whoswholegal.com/thought-leaders

Christopher Harris QC

3 Verulam Buildings London www.3vb.com

charris@3vb.com Tel: +44 207 831 8441

Biography Christopher Harris QC is a highly regarded specialist advocate with over 20 years’ experience of arguing complex commercial and international law disputes before courts and arbitral tribunals around the world. He is the UK member of the ICC Court, a UK designee to the ICSID Panel of Arbitrators and has won many professional awards for his practice. Christopher is also an experienced arbitrator in commercial and investment treaty arbitrations under all major rules.

Arbitrators & Counsel

What inspired you to pursue a legal career?

I had been set on being a corporate solicitor and had my training contract in place. Then, during my LLM studies in Leiden, I took part in a PIL moot court with a fellow student who was a prosecutor at the ICTY and he kept on at me to pursue my dream of becoming a barrister. He would not let it go until I applied for some mini-pupillages. I then had to wait a year and find work while applying for scholarships to cover the fees of the bar course, but once you have the advocacy bug, it is difficult to let go.

meetings instead of in-person, and an increased openness to remote hearings. I think it is one of the positives of the difficult pandemic period how our familiarity with this technology has created alternative ways of working, but I hope we do not fall into the trap of blanket adoption of remote working and hearings; human interaction is still vital to what we do. It is a question of finding the right solution for the particular situation.

Given the increasing amount of conflicts arbitrators and counsel are experiencing, should What was the greatest chal- there be a set of universal conlenge you faced entering prac- flict principals across arbitratice as arbitration counsel? tion institutions? The real challenge was getting a pupillage in the small number of top sets which offer arbitration! I have been very fortunate to have great mentors in chambers who were always available to discuss points or work through ideas. More recently, it has been my turn to offer guidance and support to more junior lawyers both in our growing band of arbitration specialists in chambers and also externally. It is one of the most impressive and important aspects of the arbitration community, the willingness to help and develop others.

Given the economic pressures caused by coronavirus, some practitioners are seeing clients ask for options other than oral hearings and whether they can pay in instalments. How can practitioners and institutions help these clients? I have not experienced this myself. What I have seen is an increasing use of video

The IBA Guidelines have already achieved a huge amount in terms of driving consistency of approach in this area and establishing agreed common minimum standards. Ultimately, though, we are all a product of our experience and domestic tradition to a degree, and that applies equally to our clients. Things which shock me may not raise an eyebrow for a colleague from another jurisdiction. I am not sure we need universal agreement on every point; adaptability and party autonomy are key aspects of arbitration that we should not lightly constrain with blanket rules.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

ERA Pledge has gained in recent years is a welcome example. There is always more to do, but the community keeps stepping up; the ICC Commission task force on disability and inclusion is a good recent example.

How do you see your practice evolving over the next few years? I hope to be able to continue the growth of our collegiate arbitration group in chambers and to develop our thought leadership further. I am looking forward to seeing my talented junior colleagues increasingly being instructed on substantial disputes in their own right and fulfilling their professional ambitions. Personally, alongside my counsel practice, I want to make the most of my role as the UK member of the ICC Court of Arbitration, and as a UK designee to the ICSID Panels of Arbitrators and Conciliators over the coming years. I hope that I continue to be trusted by my clients to act in their complex and interesting court and arbitration disputes in both commercial and international law, and that I achieve great results for them.

What has been the best piece of advice you’ve ever received?

I have been fortunate to work with many great advocates over the years. One common theme has been that one of the real keys to effective advocacy is to focus on the points that matter and discard the rest, and especially not to argue bad points, as they infect your good points.

Several aspects of diversity are structurally a part of international arbitration, but in areas that are not the arbitration community has been active – the traction that the

Peers and clients say: “One of the very best in the field – he is a thought leader” “He is very efficient and impressive in his approach” “Christopher is a superstar!” “Very well respected in international arbitration” whoswholegal.com/thought-leaders

Clifford Hendel

HENDEL IDR

Madrid www.hendel-idr.com chendel@hendel-idr.com Tel: +34 629 825 778

Biography For the first decade of his career, Clifford J Hendel was a transactional lawyer in the New York and Paris offices of a leading global firm. Later, as partner for two decades of a Spanish boutique, the focus of his practice evolved towards international dispute resolution. Having established HENDEL IDR in 2018, he currently acts only as neutral. He is admitted to practice in New York, England and Wales (non-practising), Paris (non-practising) and Madrid.

Arbitrators & Counsel

What attracted you to a career in arbitration?

My transition from a transaction-oriented practice to one focussed on disputes (principally international arbitration) was largely accidental. My first, and surprisingly pleasant and successful, significant experience as counsel in an international arbitration led in very short order to my being appointed as arbitrator by the institution (ICC). As time passed, I received more and more mandates to act as counsel and, especially, as arbitrator under a variety of institutions, developing expertise in all types of commercial arbitration as well as in the more specialised world of sports-related disputes. In time, I came to realise that my multi-jurisdictional transactional background provided a good skill set to work effectively in the area of international arbitration, especially as neutral. Viewed from another perspective, the transition brought me “full circle”: before commencing my career as a transactional lawyer, I had worked for two years as a law clerk to a federal district (trial) judge in the US courts, where resolving disputes fairly and efficiently was, of course, the principal mission.

What qualities make for a successful arbitrator?

Diligence, open-mindedness and equanimity are key qualities for a successful arbitrator: diligence because parties expect and are entitled to an arbitrator who has read, heard and understood their position and their arguments; open-mindedness because the facts and the law can sometimes take you to places that might have seemed unlikely at the outset of the matter; equanimity because it is essential in a consent-based system like arbitration that the parties not only have been heard, but feel that they have been heard.

Given your expertise in sportsrelated disputes, how has the coronavirus pandemic impacted the types of cases you are seeing?

Disputes Resolution Chamber of FIFA’s Football Arbitral Tribunal (DRC) and as one of eight arbitrators of FIBA’s Basketball Arbitral Tribunal (BAT). The caseload in both institutions, principally involving labor-contract disputes between players and clubs, has experienced a certain uptick as a consequence of the pandemic. However, both institutions issued guidelines encouraging negotiated and collective action, and these guidelines have been helpful in structuring responses in individual cases and in avoiding what might otherwise have been a debilitating avalanche of cases.

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

Aside from the obvious benefits where some documents or testimony in a particular case may be in a language other than that of the arbitration, a multilingual arbitrator is often a multicultural arbitrator. Parties tend to feel more comfortable with an arbitrator who “understands” them and their legal/commercial/general culture. In this regard, multilingualism can often be a proxy for multiculturalism, the latter probably being of more interest to the user than the former. In my case, a form of legal multiculturalism that could be called “multiqualificationism” has probably played to my benefit as well, as the twists and turns of my own career have ended up with me having become admitted to practice in a number of relevant jurisdictions.

What role do you see thirdparty funding playing in arbitration moving forward?

How has your membership of the Chartered Institute of Arbitrators enhanced your dispute resolution practice? For me, being a fellow of CIArb has been a valuable source of global contacts in the field, particularly in certain regions where my own relations and contacts are limited.

Why did you decide to set up your own firm?

Like many others in a similar situation, my decision to set up my own firm was based on two key realisations: first, that my practice (and preferences) had veered so much towards acting as a neutral that being part of a firm offered little if any advantages, and certainly none large enough to outweigh the ever-present risk of conflicts; and second, that while in my firm it was becoming time to pass the baton to a younger generation, as an arbitrator, I might have no “retirement age”(and no baton to pass).

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished? I have hoped to develop an active practice in mediation and dispute avoidance, and in general raise the profile of ADR and noncontentious modes of dispute resolution in the region where I live and practice, but to date have not accomplished much in this regard. This is a long-term project, though, it is important to be patient and not unduly frustrated by the slow pace of incorporation in this region of practices that have taken strong root in other regions, particularly in the “Anglo-Saxon” jurisdictions.

TPF already plays a significant role in arbitration. As it becomes more and more accepted and clients and lawyers become more and more familiar with the concept, this trend should only increase.

My sports-related practice today involves principally service as deputy chair of the

Peers and clients say: “He has very strong analytical skills and a phenomenal grip on procedural issues” “Clifford is a highly devoted lawyer and arbitrator” “I am most impressed by his ability to conduct proceedings with an iron fist in a silk glove” whoswholegal.com/thought-leaders

Daniel Hochstrasser

Bär & Karrer

Zurich www.baerkarrer.ch daniel.hochstrasser@baerkarrer.ch Tel: +41 58 261 50 00

Biography Daniel Hochstrasser focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance and licence agreements, particularly in the pharmaceutical field. He is frequently chosen as arbitrator in large international disputes – partyappointed or as president of the Tribunal. Daniel has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the University of Zurich. Since July 2015, he is a member of the ICC Court of Arbitration, and since 2021 one of its vice-presidents. He holds law degrees from the University of Zurich and from Cornell University in the USA.

Arbitrators & Counsel

What do clients look for in an effective arbitrator?

What a party should look for, both in a counsel and arbitrator, are three elements: knowledge, experience, and dedication. Experience is, among other things, a function of age; however, what is equally important is availability and the dedication to actually handle the case and be involved. For an arbitrator, preparation for the hearing and efficient handling of procedural decisions are key qualities that an appointment should take into account. An important factor is the role that the arbitrator can play within the tribunal: will he be respected and listened to by his colleagues? You do not want to appoint an arbitrator who blindly supports your position – this could even have an adverse effect.

How effective are virtual hearings and arbitration proceedings compared to their in-person alternative? Do you see them becoming the ‘new normal’? The quality and effectiveness of remote hearings in arbitration has improved significantly thanks to the growing familiarity of arbitrators and counsel with the technology used. In particular, everybody has learnt how to position cameras and microphones in order to make themselves heard and seen. On the other hand, remote hearings are and will remain two dimensional – ie, one can hear and see people’s faces and upper bodies, but misses other elements such as body language. In addition, one is only focused on the person actually speaking, and cannot easily take note of the reaction of other participants.

It is a clear disadvantage, for instance, for counsel who cross-examine a witness, if they cannot easily detect the reactions of the arbitral tribunal to specific statements. I do believe that remote hearings will become the “new normal” for procedural hearings (such as case management conferences), but not for longer hearings on the merits of a dispute.

What further steps can be taken to ensure that arbitration professionals are more comfortable using arbitration hosting platforms and other technology increasingly used in proceedings?

The key is to practise the use of the tools and the availability of professional equipment. A full hearing conducted remotely should always be managed by a specialist, an IT technician or other person intimately familiar with the technology and software used for the hearing. It certainly cannot be the responsibility of the president of the tribunal to manage the hearing technology; this would detract from his main task in an unacceptable manner.

What challenges and opportunities does virtual working present to lawyers for networking and training?

One of the major changes is that it has become almost impossible to meet and connect with lawyers for networking purposes. The informality of discussions at conferences and seminars has been totally lost. For training, this is less dramatic. Webinars and other net-based events are a relatively good alternative and have become increasingly helpful.

What do you enjoy most about your role as co-head of Bär & Karrer’s arbitration practice?

I am proud that in my firm, we have been able to develop our disputes practice from two or three partners and a few associates in 1993, when I joined, to 20 partners and 30 associates, all of whom are recognised in the market for their skills, and we are constantly ranked among the leading dispute resolution firms in Switzerland and Europe-wide, both in terms of strength of our team and the outstanding quality of our individuals. I plan to continue to represent parties as counsel, because this is my passion, and I would miss it terribly as part of my portfolio of work. I want to maintain a good balance between counsel mandates and arbitrator appointments.

What is the best piece of advice you’ve ever received?

In addition to training in a law firm, try to also work for a district court, possibly followed by a stint at a court of appeals. By observing how litigation plays out in everyday cases, one learns a lot, not only about law and strategy, but also the human condition. This should then be followed by some time abroad, either studying at an Anglo-Saxon university or working in a law firm or legal department in the US or London. The resulting skill mix will provide a young lawyer with everything that is needed; whether that lawyer will develop into a successful litigator depends on whether he or she also has the character, temperament and devotion to succeed when the going gets tough.

Peers and clients say: “Daniel is a fantastic arbitrator” “He is a highly recognisable name in the international arbitration market” whoswholegal.com/thought-leaders

James Hope

Advokatfirman Vinge KB Stockholm www.vinge.se

james.hope@vinge.se Tel: +46 10 614 3000

Biography James Hope is a partner of the Swedish law firm Vinge. He is a dual-qualified Swedish advokat and English solicitor-advocate. James has acted as counsel or arbitrator in more than 100 international arbitration cases, including more than 25 as arbitrator. He is a guest lecturer at Stockholm, Uppsala and Edinburgh universities, and a member of the LCIA Court. He is fluent in English and Swedish, and is learning Russian.

100

Arbitrators & Counsel

What is it about your role as an What green arbitration trends arbitrator that you enjoy the are currently prevalent in the most? market? For me, fairness is the essence of arbitration. I enjoy the process of creating a fair procedure, ensuring that each party has a fair and reasonable opportunity to present its case, finding out what actually happened and why, listening carefully to the witnesses and experts, and then determining the issues and drafting detailed reasoning as fairly and impartially as possible.

The pandemic has precipitated two excellent “green” developments – virtual hearings, which are here to stay for many cases, and electronic case management. There are still a few somewhat old-fashioned practitioners who insist on having paper copies of the whole file, but in my experience most people have now gone over to electronic case files, at least to some extent.

What qualities make for a suc- In your experience, what cessful arbitrator? advantages can clients benefit A strong sense of fairness, efficiency, from in hiring a multilingual willingness to work hard to understand arbitrator? the details of the case, a good balance of tenacity and humility, genuine interest in and ability to master complex legal issues, good listening skills, patience, diplomacy, good commercial sense, an ability to understand technical issues, good communication and drafting skills, and an open mind. I could go on …

What tips do you have to counsel starting off in the field of arbitration?

Be yourself and play to your strengths. Do you have a “unique selling point”? Can you create one? When acting as counsel, try to put yourself in the shoes of the arbitral tribunal. What exactly do you want the arbitral tribunal to do, and why? What are the key issues that the arbitral tribunal needs to decide? How do you tell your client’s story in the best way possible? Find a balance between mastering the detail and “seeing the wood for the trees”.

International arbitration is not an English language test, but sadly it can sometimes feel like that. Although most international arbitrations are conducted in English, there is almost always another language involved, sometimes several languages. Arbitrators who understand the challenges of working in a multilingual environment can help to put counsel and witnesses at ease when linguistic challenges arise. Multi-lingual arbitrators are also naturally sensitive to the difficulties, and limitations, of translation.

Are you noticing a change in how arbitrations are financed? If so, what changes are you noticing?

There is much talk about third-party funding, which is continuing to expand. I have also noticed the use of fixed-fee arrangements by certain parties. For example, the party may decide on a fixed budget, and the law firm will then be

required to arrange its team accordingly, often by asking ambitious associates to lead the case. Such a strategy is not without its difficulties, but I have seen it work quite successfully on more than one occasion.

Where, in your opinion, does the future of the practice area lie? In these troubling times, I would hope that international arbitration can continue to offer a mechanism for the fair and peaceful resolution of international disputes throughout the world. We all need to continue to promote this, and I see a future that is increasingly international, multi-cultural and multi-lingual. It is more important than ever for international arbitration to be seen to be available to parties of all nationalities and cultures.

Looking back over your career, what has been your proudest achievement?

The law is at its best when it makes a difference to people’s lives. Those cases that I have been most proud of are those where the outcome has made a real difference to the client. Obviously, achieving a successful outcome in a big case is always very satisfying, but several small cases also stand out because of the importance of the case for the client. At a personal level, I am proud to have managed to qualify and pursue a career in three different jurisdictions – Scotland, England and Sweden. It is still unusual to move jurisdictions within the field of dispute resolution, and it is not easy, but those who dare to do so gain an appreciation of the fact that there are different ways of doing things. One size does not fit all!

Peers and clients say: “A star!” “One of the leading individuals in Sweden when it comes to international arbitration” “He is very skilled and very likeable with an efficient approach” “Highly experienced as counsel and increasingly as arbitrator” “He is strong as counsel in international cases” whoswholegal.com/thought-leaders

101

Brenda Horrigan

Brenda Horrigan Pte. Ltd. Singapore www.brendahorrigan.com

brenda@brendahorrigan.com Tel: +65 8788 1966

Biography Brenda Horrigan is an internationally recognised arbitration practitioner with some 30 years of global experience working from the US, Paris, Moscow, Shanghai, Sydney and now Singapore. She has her own practice as an independent arbitrator. Brenda is the immediate past president of the Australian Centre for International Commercial Arbitration (ACICA) and remains on its executive. She is a fellow of the Chartered Institute of Arbitrators and is listed on the panels of numerous arbitral institutions.

102

Arbitrators & Counsel

Name one of your most memo- Some practitioners have told rable cases. us of greater international harThere have been many interesting cases, monisation between arbitration involving fascinating legal and factual codes of conduct, particularly issues (and often unique circumstances). for investor-state arbitration. Is Most cannot be named, but one that can this something you see, and how was Rumeli Telekom A.S. and Telsim Mobil could it change arbitration? Telekomunikasyon Hizmetleri (ICSID Case No. ARB/05/16) (as counsel).

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat? There is more willingness now to select an arbitrator from a location other than the seat – however, time zones have increased in importance because it is no longer the default that all parties and tribunal members will travel to the seat for all hearings. Therefore, having tribunal members in compatible time zones can enhance flexibility and convenience.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

The most obvious change has been the greater degree of comfort most arbitrators now have with electronic bundles, videoconferencing and other technological aids. There is also an increased willingness of many arbitrators to more proactively manage the proceedings and use procedural tools to enhance efficiencies and make the process both more effective and more user-friendly. Document production requests and responses, in particular, are the focus of many arbitrators’ attempts to make the process less onerous and more rational. Also, although there is still strong protection of due process, the explosion of guerrilla tactics over the past decade or so has led to some push-back against excess due process paranoia.

I am not seeing substantial impact of formal codes of conduct; however, we are seeing increased sophistication across jurisdictions and an enhanced focus on discussion and application of a more uniform “international best practice” approach that takes the best elements from a variety of systems and melds them to improve user experience and outcomes.

Are you noticing a change in how arbitrations are financed? If so, what changes are you noticing?

There has been a substantial increase in the use of litigation finance not only by impecunious parties, but also by large corporates seeking balance sheet certainty and predictability. This is a trend that is likely to continue – as is the trend toward portfolio financing arrangements that package multiple disputes. The opportunities for creative approaches – and the jurisdictions in which such arrangements are possible – continue to expand.

How do you see your practice developing over the next two years? I expect to continue to see a diverse and interesting mix of cases from a variety of jurisdictions and industry sectors.

increasing number of arbitration practitioners setting up specialist boutiques or solo practices to escape the conflict issues found in larger firms. Initiatives such as WIA, the ERA Pledge and R.E.A.L. (among many others) are helping to increase the visibility of newer voices at the table, and key arbitral institutions are making a concerted push to diversify their appointments. More work remains to be done, but in my view real progress has been (and continues to be) made.

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

First, do excellent work as arbitration counsel. People (opposing counsel, tribunals, etc) remember those who impress – whether positively or negatively. Make sure that you leave a positive impression behind. Second, be visible to the various arbitral institutions. Many early appointments come to young arbitrators from institutions, on what are often small but difficult cases. Those cases provide a good learning opportunity, as well as a way to build up credentials and experience. Third, be active in one or more of the many “young practitioner” groups that are now available for newer entrants to the field. Such organisations are a great way to make contacts and maintain existing networks, but also to gain substantive skills. And last but not least, believe in yourself and don’t be afraid of taking (reasonable) risks!

Peers and clients say: “She is always up-to-date and brings genuine international perspective to her work” “Brenda is a very reliable practitioner” “She is a widely recognised and respected arbitrator” whoswholegal.com/thought-leaders

103

Benjamin Hughes

Hughes Arbitration

Singapore www.hughesarbitration.com benjamin@hughesarbitration.com Tel: +65 9724 0724

Biography Benjamin Hughes is an independent arbitrator at Fountain Court Chambers in Singapore, a member of the Court of Arbitration of SIAC, and adjunct professor at National University of Singapore Law School. He has been appointed in approximately 200 arbitrations with several billion US$ in dispute. Professor Hughes was educated in both the civil law and the common law traditions, first at Seoul National University College of Law (all coursework in Korean) and then at NYU School of Law.

104

Arbitrators & Counsel

It may be true that arbitration is less efficient than it was in the “good old days” when a handful of arbitrators heard most of the major cases globally. In a way this was inevitable; there are simply more large and complex arbitrations than ever before. Arbitral tribunals are dealing with huge cases with large teams of lawyers on each side, submissions reaching into the thousands of pages, large numbers of witness statements and expert reports, and hundreds if not thousands of factual exhibits and legal authorities. However, there are measures arbitrators can and should take to ensure maximum efficiency. For example, relatively early in the proceedings, typically after the first round of submissions, I normally ask the parties to confer and agree upon a list of the issues to be resolved by the tribunal. To the extent that the parties are unable to agree on all aspects of this memorandum of issues (MOI), it will be settled by the tribunal after hearing from the parties. This requires additional work from the tribunal, which must thoroughly review and understand the submissions and proactively engage with the parties to accurately discern the issues to be resolved, but it pays dividends throughout the subsequent stages of the arbitration. It guides the parties in drafting their document requests, ensuring that they request only those documents that are relevant and material to a live issue in dispute between the parties. Likewise, it guides the tribunal in determining any disputed requests. It also focusses the parties on the important issues when drafting their subsequent submissions, witness statements and expert reports. This focus on the issues set forth in the MOI can also make the hearing more efficient, and can assist the tribunal when drafting the award. Of course, the MOI is not an immutable document, and it is important to confirm with the parties at an appropriate juncture (normally after the final round

of submissions prior to the hearing) that the issues in dispute have not expanded or contracted or otherwise evolved during the course of the proceedings, but I have found this to be an extremely effective exercise which increases not only the efficiency but also the fairness and transparency of the proceedings.

D o c u m e n t p ro d u c t i o n i s regarded by many as a costly and time-consuming exercise that rarely results in the production of determinative evidence. How do you manage document production in your arbitrations?

Document production can be a very frustrating exercise indeed, both for the parties and the tribunal. It is an issue I now raise with the parties at the outset of the arbitration. If the parties agree, I normally dispense with the Redfern Schedule and substitute a somewhat different procedure and schedule for document production. First, the parties are asked to request only those documents strictly relevant and material to (i) an issue identified in the MOI (see above), and (ii) a specific factual allegation made in the submissions to date. Second, the parties are asked to consider the relevant burden of proof when assessing relevance and materiality. Without prejudice to a party’s right to argue in its submissions that the other side has not provided sufficient evidence to prove its case, the parties should not request documents from the other side where the other side bears the burden of proving the allegations that such documents would support. Third, where an objection is made to any request, the parties are directed to confer and attempt to resolve the objection between themselves. For example, where a party objects to a request based on overbreadth or excessive burden, it should indicate whether there is a narrower or less burdensome formulation with which it would be willing to comply. Likewise, the requesting party should indicate whether there is a narrower or less burdensome formulation that it would be willing to accept. The parties are directed to work together in good faith to find potential alternate formulations that avoid overbreadth and excessive burden, while still

whoswholegal.com/thought-leaders

allowing production of documents that are relevant and material to the outcome of the case. Finally, if the parties are nonetheless unable to reach agreement on a given request, they are directed to submit the request on a modified schedule which I have creatively dubbed the “Document Request Schedule”. The requesting party must state the relevance and materiality of the request to an issue to be resolved under the MOI and a factual allegation made in the pleadings. The objecting party must state its objection(s), as well as its proposed revision of the request, if any. Finally, the requesting party may include a response to the objection and/or the proposed revision, together with its own proposed revision, if any. I have found this process to be helpful because it forces the parties to confer and attempt to agree on the scope, relevance and materiality of disputed requests. This often leads to an agreed compromise, reducing the number of disputed requests and leading to a smoother and more cooperative document production process. I have also found that this procedurally cooperative attitude often spills into the rest of the proceedings, which tends to save time, cost and frustration for the parties.

You were recently appointed as a member of the Court of Arbitration of the Singapore International Arbitration Centre (SIAC). What is your role there, and how does this complement your practice as an independent arbitrator?

The SIAC Court is called upon to determine applications for consolidation and joinder, challenges to arbitrators, and jurisdictional objections prior to the constitution of the tribunal (on a prima facie basis). We may also be called upon to assist with amendments to the rules or guidelines. It is a very interesting role, and I am honoured to have the opportunity to make a small contribution to SIAC as an arbitral institution and to Singapore as a seat of arbitration. It fits in very well with my role as an arbitrator – save that I am conflicted out of accepting appointment in cases where I have previously made a determination in my capacity as a member of the court!

105

How do you think we can improve diversity in the pool of international arbitrators?

We’ve made a great deal of progress in addressing gender diversity. Without leaving that job unfinished, we also need to turn our attention to racial, cultural, linguistic and geographical diversity. In my view the best way to accomplish this goal as a community is to proactively identify young and talented lawyers with an interest in international arbitration and provide them with mentorship and

opportunities to grow and develop as arbitration counsel and eventually arbitrators. I am very encouraged in this regard by the mentorship programs that have been established under the auspices of Young ICCA, Maxwell Chambers in Singapore and the Moot Alumni Association.

What she meant is that you should do what you are passionate about, and if practicing law does not give you that feeling then you should find something else that does. Life is too short to spend it doing something you do not find meaningful and fulfilling.

What is the best piece of career advice you have ever received?

That depends on what day you ask me. The advice that comes to mind now is from an early mentor: “Law – love it or leave it.”

Peers and clients say: “An excellent and well-balanced arbitrator with a strong command of proceedings” “He is undoubtedly one of the finest arbitrators in Asia, and increasingly one of the leading arbitrators worldwide” “He is a prepared, focused and discerning arbitrator who stands his ground firmly but politely” 106

Arbitrators & Counsel

Over the past 25 years, WWL has built a reputation as one of the most trusted resources for in-house counsel, government, agency and other legal practitioners seeking to find a high-quality lawyer in a particular practice area or jurisdiction. We now cover 35 practice areas globally and list practitioners in more than 160 countries. In addition to lawyers, we also list the foremost expert witnesses, forensic accountants, economists and other non-lawyer experts across a variety of fields.

DISCOVER OUR LATEST RESEARCH

WWW.WHOSWHOLEGAL.COM

whoswholegal.com lawbusinessresearch.com

Stephen Jagusch QC

Quinn Emanuel Urquhart & Sullivan, LLP London www.quinnemanuel.com

stephenjagusch@quinnemanuel.com Tel: +44 20 7653 2000

Biography Stephen Jagusch QC specialises in international commercial and investment treaty arbitration, having acted as strategic adviser and lead advocate in some of the leading and most high-profile ad hoc and institutional international arbitrations worldwide. Most of these cases have been for or against sovereign states or substantial multinational organisations, and high or ultra-high net worth individuals. Stephen is recognised as a leading expert in international arbitration and disputes arising under contracts and bilateral/multilateral investment treaties.

108

Arbitrators & Counsel

What challenges are posed as counsel and arbitrator when handling cases are across different seats?

The legal seat can be of critical importance to an international arbitration in many respects. Its impact, however, on how the proceedings are conducted is more limited. Some seats have local requirements which if not respected may jeopardise the integrity and enforceability of the award. Arbitrators are obliged to produce enforceable awards. This requires that they seek to understand and comply with the mandatory requirements that may apply at the seat of the arbitration. So, the skill required is to be generally informed of the range of local requirements that are known to apply in particular seats, and to have the foresight and determination to enquire whether there are any aspects of the local arbitration law that the tribunal needs to comply with. It is reasonable to make enquiries of counsel. In my experience, however, that is sometimes not sufficient. Counsel themselves may not be specialists in the law of the seat. Further, where it may be in a party’s interest to be able to challenge an award the tribunal cannot expect that their counsel will be forthcoming in directing the tribunal away from the potential hazards.

Do you expect measures taken by states to prevent the spread of the coronavirus to result in investment treaty claims, and would any such claims be likely to succeed?

States frequently find themselves required to reconsider policy or develop new strategies in response to new or unexpected regional and international events. It is always possible that measures taken by such states will have an adverse economic impact upon particular markets or industries or investments in which foreign entities or persons have an interest. In some circumstances this may give rise to possible treaty claims, for example, where the home state of the foreign investor has negotiated investor-state benefits with the state that hosts the investment. There may even be an investment agreement. The host state may have local investment laws that offer benefits to foreign investors. In any case, the applicability and coverage of the

protection will depend upon the particular protection offered and the facts giving rise to the claim. It is reasonable to expect that some investors might find that their protected investments suffer economic harm as a result of measures taken by host states in response to the coronavirus pandemic. If such claims are made, it is reasonable to expect host states to argue that the measures in question do not violate their investor protection obligations. Just as it is easy to imagine myriad potential claims, it is also easy to imagine the range of likely defences to those claims. As in all other areas of investor-state law and practice, the decisive features of pandemicrelated cases will be the precise legal protections in question, the particular facts of the case, the inclinations and mindsets of the arbitrators, and the ingenuity and advocacy of counsel.

Out of commercial arbitrations and investor-state cases, which do you prefer and why?

You would be surprised at how often this question is asked. In some respects, it’s impossible to answer because every case, commercial or treaty, has its own unique features that can either dilute or enrich the experience. That said, in very general terms, and starting (somewhat counterintuitively) with quantum, both commercial and treaty arbitrations usually involve the subcontracting of the compensation analysis to domain-specialist forensic and economic experts. I have sat through many quantum sessions where the issues would be no different, or only marginally so, whether liability arose under an investment treaty (or investment agreement or foreign investment law) or under contract. In my experience the real difference – and I readily admit to some sweeping generalisations here – is that commercial arbitrations tend to engage a broader range of evidence, both testifying and documentary. I enjoy that. By contrast, in many investor-state cases the essential facts are often not in dispute: the issues concern whether the investor has a qualifying investment, the proper meaning to be given to the protections in question and whether such protections have been violated. It is becoming increasingly common for counsel in investor-state cases to argue that the tribunal should take guidance from

whoswholegal.com/thought-leaders

the ever-growing library of other investorstate awards. This creates a good deal of “oh, here we go again” in investor-state cases. I am attracted in commercial cases to complex facts, seemingly impossible situations and developing fresh or innovative commercial solutions or dispute strategies. In treaty cases, I am attracted to the public international law issues and divination of those often fine lines between holding a state to the rule of law, including ascertaining and respecting an investor’s legitimate expectations, and protecting a host state’s sovereign right to act rationally and without discrimination and in the public interest. The fact that most investorstate awards find their way into the public domain (and into the arguments of counsel in subsequent cases) adds an additional element to investor-state cases that I also find appealing. Most commercial arbitrations a zero-sum game. The dispute affects the commercial interests of the parties, it is generally private and (other than for challenge or enforcement purposes) the proceedings and their outcomes survive scrutiny. The same is not true for most investorstate arbitrations. In those cases, there is usually a very real sense that you are involved in a process and with issues that may have implications beyond the consequences of any award, and where the reasoning and conclusions of the tribunal will be referenced and critiqued as part of an ever growing body of public international law resources.

The ICC has recently revised the rules for international commercial arbitration. What impact do you expect this will have on arbitration practice?

It is routine for leading arbitration institutions to revise their rules. This is one consequence of competition between arbitration institutions – each seeks to demonstrate that their rules and governance reflect current best practice. Particular revisions to rules do not in my opinion tend to have any direct bearing on arbitration practice, save of course for the utilisation of revised rules in particular cases. Most revisions are responsive to user needs, including greater flexibility and reduced time and cost. (In the case of the most recent ICC rules revision, a push towards

109

greater transparency also features.) The real impact of rules revisions is therefore the signal being sent to users (and competitors) that the institutions care for the user experience and offer the latest in what the community consider to be the preferred framework for a contemporary arbitration: clearly defined powers, procedures and expectations of the institution, the arbitrators and the parties. For this reason, the leading institutions have a good track record of promoting and publicising their rules revisions and their object and purpose. Market commentators (especially law firms and barristers’ chambers) are usually quick to publish their own summaries and commentaries in order to demonstrate their expertise in this area.

If you could implement one reform in international arbitration, what would it be?

I haven’t yet figured out how, but the removal from (or at least better tools to identify) abuse of process by unscrupulous clients or their counsel, and the consequential skewering of due process and any level playing field, unwittingly or deliberately, by adopting measures to conceal, destroy, alter or create evidence, excessive manipulation of witness testimony and tactics that play upon those arbitrators who put due process paranoia ahead of early

engagement with the case and proactive control over the proceedings. I predict that these very challenging yet multifaceted and interconnected problems, if left unchecked, will become an existential threat to arbitration. I can’t profess to offer a solution though it is something I think about often. That said, and in order to answer the question with an immediate reform, I would seek to implement proper hearing durations. Hearings should take as long as is necessary to permit proper examination of witnesses. I recognise that it is unfashionable to suggest longer hearings, but I do consider that in many cases counsel are unreasonably pressured to fit their interventions into increasingly small windows, leaving them with insufficient time purposefully and professionally to explore the fact and expert witness testimony. It is not right that counsel should have to surrender potentially useful cross-examination material because of the need to prioritise due to arbitrary time constraints. This problem is even greater when, as expected, counsel cannot know exactly which subjects are of more or less interest to the arbitrators. The problem is further compounded by the often tactical use of oral testimony being given through an interpreter in order to run down the clock, give the witness more time to consider (or add

to) answers and otherwise to lessen the impact of direct dialogue. I have grown tired of arbitrators who would seem from their approach to scheduling consider that every case is either three, five or 10 days, but whatever it is, the time available to counsel just gets split and that’s just how it’s done. These decisions are often taken at an early case management conference when little is known about the number of witnesses, the breadth of the evidence to which they will be testifying, the volume of documentary evidence relevant to the different witnesses, and which and how many of those witnesses will be giving evidence through an interpreter. I accept that hearing dates normally need to be fixed well in advance and this creates challenges should the issues or evidence expand significantly during the course of the proceedings. However, it is not in my view acceptable that issues of scheduling should take priority over counsel’s desire to test the witness evidence of their client’s counterparty carefully and thoroughly and in their own time. When counsel is already feeling pressed for time, few things are then more irritating than the arbitrator who gives the appearance that strict adherence to an earlier estimate of time is more important than the careful and thorough testing of the evidence.

Peers and clients say: “Stephen has masterful skills in arbitration” “He is a very well-regarded counsel” “Stephen has a great manner in proceedings” 110

Arbitrators & Counsel

Alexandra Johnson

Bär & Karrer Ltd Geneva www.baerkarrer.ch

alexandra.johnson@baerkarrer.ch Tel: +41 58 261 57 00

Biography Alexandra Johnson is a partner at Bär & Karrer with over 20 years of experience in international arbitration. She has acted as counsel, chair, sole and co-arbitrator in over sixty arbitration proceedings in various matters such as international joint venture agreements, long-term gas supply contracts, construction and engineering, distribution and licensing, sale of goods, pharmaceutical, governance, M&A and sport-related disputes. She is admitted to the Swiss and New York Bars and has practised international arbitration in New York, London and Geneva where she is now based.

112

Arbitrators & Counsel

What inspired you to pursue a career in arbitration law?

I have always been drawn to international law and had a strong interest for politics and international relations. Having grown up in a culturally mixed family, I was also very interested in the influence of the various cultures on human relations. I started as a legal trainee working for Professor François Knoepfler who was a well-known arbitrator and immediately developed a passion for international arbitration. I never looked back since that time and had the chance to work with some of the greatest arbitration practitioners such as John Beechey CBE and Professor Gabrielle Kaufmann-Kohler.

What has been your proudest achievement?

Aside from my two wonderful children, it has been to develop a striving arbitration practice both as counsel and arbitrator and the success I have obtained for clients in key matters. I am also honoured to be involved in the Swiss Arbitration Centre, which has received this year a GAR Award for the arbitral institution that impressed most.

which was rendered necessary by the pandemic. I also see many tribunals providing in the procedural timetable for punctual case management conferences at various stages of the proceedings to increase the efficiency of the process through regular communication with the parties.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients? In my practice as counsel and arbitrator, I have noted that acting in disputes involving different sectors develops one’s curiosity and skills to delve into the details while keeping the broader picture in mind and developing a transverse knowledge. Having a geographically diverse practice is also important in my view as it provides not only a deeper understanding of the various legal frameworks but also of the cross-cultural sensitivities, which are often key in international arbitration.

You sit as a member on various associations and boards, how do you find this strengthens your practice?

As vice president of the Arbitration Court of the Swiss Arbitration Centre, I am not only involved in the supervision of the cases conducted under the Swiss Rules of International Arbitration, but also part of the Special Committee (which takes decision on important issues such as the challenge of arbitrators or the decision on consolidation of proceedings) and, together with my colleagues of the executive committee, involved in the governance of the institution, all of which gives me great insights into the effective conduct of arbitration proceedings and, importantly, of the users’ needs. Among other positions, my role as co-head of the Geneva Chapter of the Swiss Arbitration Association and my involvement in the Swiss Arbitration Academy help me to keep me abreast of the latest developments in the field of international arbitration, exchange with colleagues and share experience with the younger practitioners, which I find very rewarding.

To what extent has the international arbitration community met the challenge of improving diversity in recent years? What advice would you give to How have the new ICC rules Many well-known global initiatives to young practitioners hoping to impacted commercial arbitra- improve diversity have been taken in the one day be in your position? tion practice? recent years to improve diversity in inter- To work hard while enjoying what you do, to The 2021 ICC arbitration rules mark a further step towards greater flexibility, efficiency and transparency of the process. I find the introduction of the requirement to disclose third-party funding arrangements particularly noteworthy, since funders are increasingly present in the sphere of commercial arbitration aside from investment arbitration.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

An obvious development is the way tribunals have adapted to the use of technology,

national arbitration such as the Equal Representation in Arbitration (ERA) and the Racial Equality for Arbitration Lawyer (REAL) but also some more regional initiatives such as the New List in the US or the African Promise. Diversity is important on all levels (including gender, age, ethnicity and origin) and although much progress has been made, there is still much to achieve, and it is the responsibility of all of us in the international arbitration community to continue pushing forward. The arbitration institutions are also key in this regard, and I am particularly proud of the fact that in 2021 women accounted for 70% in the arbitrators’ appointments made by the Swiss Arbitration Centre.

invest time in young practitioners’ groups and to work with an experienced arbitration practitioner who can act as your mentor.

Peers and clients say: “Alexandra is a very prominent arbitration practitioner with a huge following” “She is an excellent arbitration lawyer” “Alexandra is very responsive and great to work with” whoswholegal.com/thought-leaders

113

Douglas Jones AO

Sydney Arbitration Chambers; Toronto Arbitration Chambers; Atkin Chambers Sydney, Toronto, London www.dougjones.info

dougjones@dougjones.info Tel: +61 2 9137 6652

Biography Doug Jones AO is a leading independent international commercial and investor-state arbitrator with over 40 years’ prior experience as an international transactional and disputes project lawyer. Doug is a door tenant at Atkin Chambers London and has Chambers in Sydney and Toronto. Doug is also an International Judge of the Singapore International Commercial Court.

114

Arbitrators & Counsel

How has the relationship between arbitrators and parties dev eloped ov er your career? How might this affect tribunals?

When one speaks about the relationship between arbitrators and parties, what is normally referred to is the relationship between arbitrators and counsel, rather than with the actual parties. My impression is that over time, there has been increasing engagement, as there should be, between arbitrators and parties’ counsel but the involvement of parties themselves in proceedings has somewhat declined. This has, of course, been exacerbated by virtual proceedings dictated by the pandemic where one sees only briefly, images of those who might be attending as party representatives. It is really important for arbitrators to appreciate that what they are saying is being absorbed by those who represent parties, and there is less of a chance to observe this reaction in virtual proceedings. In my view, this question of there being an opportunity for parties themselves to understand and appreciate the process and react during both procedural and evidentiary hearings is critical to the health and development of international arbitration and is something on which arbitrators, counsel and the parties themselves need to work hard.

You have recently expressed concerns over the “de-lawyering” of Russian parties and its impact on the rule of law. How will the ongoing sanctions continue to affect Russian-related construction projects and arbitration?

In my view there has been a lack of any real debate in the political discussions of sanctions on Russian parties, and others facing sanctions, as to their impact on access to justice and the maintenance of the rule of law. It is critical, both for the benefit of the parties themselves, including, of course, those who are not sanctioned, and for the working of international commerce that dispute resolution processes be maintained in times of international tension, and that the capacity of parties to participate properly in the administration of the rule of law internationally be recognised. After all, the founders of the ICC (post World War

whoswholegal.com/thought-leaders

One) called themselves “the merchants of peace”. The capacity of lawyers, experts and arbitrators to continue to participate in international dispute resolution processes has not been debated separately from the imposition of sanctions more generally. The potential negative impact of sanctions on the dispute resolution process and its contribution to world peace must be carefully considered.

The London Principles established by the Chartered Institute of Arbitrators during its centenary in 2015, are an exceptionally useful guide for those who seek to maintain and develop arbitral seats for the benefit of the international arbitration process. However, several relate to physical issues such as the safety of the seat, which have become far less relevant in a virtual world where the issues are more related to ensuring effective virtual connections and hearing processes that are efficient for all participants. My experience is that physical hearings have now largely resumed; however, assuming that one is proceeding virtually, certain aspects of the London Principles such as local courts’ support for arbitration and the existence within the jurisdictions of experienced and expert counsel, as contained in Principles One–Five, for example, will be increasingly important because they are divorced from physical considerations. I think there is an opportunity for those in existing and aspiring seats to focus on these aspects of the London Principles.

A common complaint about international commercial arbitration is that the process is no longer efficient. What can arbitrators do to ensure that the arbitration proceeds smoothly and without unnecessary delay? The debate about the efficiency and cost of international arbitration is neither new nor less relevant as time passes. All legal processes, domestic and international,

115

must ensure that the adoption of procedure does not become an end in itself. Arbitrators must keep a laser focus on innovation and reform in order to maintain efficiency, expedition, fairness and economy. Thus, accepting existing processes without question should be avoided, although predictability and fairness themselves are benchmarks for effectiveness.

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?

There are two aspects to this issue. The first is the challenge of arbitral awards in

their seat and the second is the enforcement of arbitral awards outside the seat. In relation to the first issue, it is critical that the courts at the seat provide efficient opportunities for those wishing to challenge awards and ensure all parties have certainty as quickly as possible. The second issue of enforcement outside the seat is, of course, one of the reasons international arbitration dominates international dispute resolution. It is important for the very many countries that have acceded to the New York Convention to be astute in ensuring that their processes for enforcement are clear, expeditious and accessible. Statistics on the payment of awards without the need for enforcement proceedings are not readily available but my impression is that awards

where enforcement is resisted represent a small proportion of awards in international arbitration.

How would you summarise the philosophy behind your role as arbitrator?

The arbitrator’s role is to be as proactive as the parties wish and ensure that the parties themselves are comfortable with the process. An arbitrator should be able to devise, with the parties, processes suitable to the dispute and at the end of a fair process, deliver an enforceable outcome.

Peers and clients say: “Doug has in-depth knowledge regarding construction-related issues” “He is an effective chair-arbitrator who is always in full command of the proceedings”

116

Arbitrators & Counsel

The world’s best arbitrators, counsel and expert witnesses…

...all in one place. Available now  @whoswholegal

 whoswholegal.com

 Who’s Who Legal

Moritz Keller

Clifford Chance Partnerschaft mbB Frankfurt www.cliffordchance.com

moritz.keller@cliffordchance.com Tel: +49 69 7199 1460

Biography Moritz Keller is an arbitration partner in the Frankfurt office of Clifford Chance. He acts for clients in both commercial and investment arbitration matters, and also acts as an arbitrator. His experience spans a variety of sectors, most notably the energy, infrastructure and banking sectors. He is a member of the adjunct faculty of the Universities of Passau and Frankfurt am Main, Germany, and a frequent speaker on a variety of issues of international arbitration.

118

Arbitrators & Counsel

What inspired your choice of international arbitration as a field of practice and what do you enjoy most about international arbitration?

When I started doing disputes work, one of the first matters I worked on was a major commercial arbitration. I was fascinated by the flexibility that was available to formulate the process as well as the meeting of legal cultures – a melting pot of domestic law, international law, civil law and common law. The truly international aspects of arbitration make this is a fascinating area of law to practice.

technology infrastructure, unproblematic for us in terms of continuing to support our clients. However, on the personal level it is of course preferable to be able to work face to face. New team members and younger team members in particular benefit enormously from interactions with more experienced colleagues, so we have welcomed the return to office working. Regarding broader networking, it was great to see how creative solutions emerged during the pandemic, but it was also a relief to get back to normal, face-to-face events.

Are you noticing a change in how arbitrations are financed? You have occupied many roles in If so, what changes are you the arbitration space – to what noticing? extent do you feel that having a The statistics of the different arbitral instibroad range of experience has tutions show that the number of cases enhanced your practice? involving third-party funding is generally By now, I have acted as counsel in more than 70 cases, covering both commercial and investor-state arbitration, and acting both for claimants and respondents. In addition to my counsel work, I also sit as an arbitrator, train state officials in investment treaty law, advise on governmental reform efforts and lecture on arbitration to students at the Universities of Frankfurt and Passau. Also, together with my team, I am about to publish a commentary on the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, covering the whole of the investment chapter of CETA as well as ancillary EU legislation. Being able to perceive the issues from the perspective of all counsel, arbitrator, instructor and commentator is a powerful mix.

How has the shift to online working and events affected networking opportunities? The shift to online working at the height(s) of the pandemic was, thanks to a strong

increasing. An interesting aspect of this is the question of transparency, i.e. the disclosure of such third-party funding. For example, the most recent amendments to the ICSID arbitration rules (date of effect: 1st July 2022) include the requirement to disclose the name and address of any third-party funder, and the 2021 version of the ICC arbitration rules as well as the International Bar Association Guidelines on Conflicts of Interest in International Arbitration also contain similar provisions. This is a good example of a fast-evolving issue in international arbitration.

Disputes, now in its third version, seeking to respond to some of those criticisms. The draft Code introduces in particular provisions on issue conflicts, double-hatting and repeat appointments. It remains to be seen how the new Code will interact with the International Bar Association Guidelines on Conflict of Interest in International Arbitration (IBA Guidelines) as well as with those discrete codes of conduct included in certain free trade agreements (eg, CETA).

What is the most significant challenge arbitration will face over 2022–2023?

We expect that the arbitration community will, while continuing to grapple with the fallout from the covid-19 pandemic, increasingly be faced with questions relating to climate change and in addition the consequences of the war in Ukraine and the associated sanctions regimes. Clients will likely continue to experience uncertainty and a lack of foreseeability. Accordingly, we expect to see an increase in claims for damage and loss requiring the support and advice that are the core strengths of our practice – whether state court litigation, domestic arbitration or international arbitration.

Arbitrator independence and impartiality is a hot topic. What do you think of the moves towards reform in this area?

An independent and impartial adjudicator is central to a fair dispute resolution proceeding. A lot of criticism has been levelled at the current framework, with the ICSID/UNCITRAL draft Code of Conduct for Adjudicators in International Investment

Peers and clients say: “He is a star in international arbitration” “Moritz is a very strong advocate”

whoswholegal.com/thought-leaders

119

Kevin Kim

Peter & Kim

Seoul www.peterandkim.com kevinkim@peterandkim.com Tel: +82 10 2021 0024

Biography Kap-You (Kevin) Kim is a founding partner at Peter & Kim in Seoul. He was previously a senior partner at Bae, Kim & Lee LLC, where he headed the international arbitration practice for three decades. Kevin served as secretary general of the ICCA for four years and as vice president of the ICC Court for 10 years. Kevin has acted as counsel, presiding arbitrator, co-arbitrator or sole arbitrator in more than 300 international arbitration cases under various arbitration rules.

120

Arbitrators & Counsel

Name one of your most memorable cases.

While I have been involved in many cases, two cases immediately come to mind. The first is the ICSID case brought by Lone Star Funds against the Republic of Korea which was the first ever investment arbitration case brought against Korea. The aggregate amount in dispute is estimated to be around US$5 billion and we are currently awaiting the final award. The second case is the Hyundai Oil Bank case, with an amount in dispute of approximately US$4 billion. The tribunal ordered the sale of 70% of the opposing party’s shares in an oil refining company jointly owned with our client, thereby transferring control of the company. We were awarded GAR’s “Win of the Year” in 2011 for this achievement.

or as Advisory Board Member of the International Council for Commercial Arbitration for instance have allowed me to gain intimate knowledge of the working procedures of various arbitral institutions and the considerations that underly the management of cases by such institutions. This has allowed me to better understand the application of the arbitration rules, which is beneficial to my practice as a counsel. I have also been able to take advantage of these opportunities as I was able to push for greater efficiency to be applied to the conduct of proceedings, which I consider desirable both as an arbitrator and as counsel. Notwithstanding, I believe that it is the clients who are ultimately the true beneficiaries of these experiences.

conduct for investment adjudicators to harmonise the various sets of ethical standards applicable to ISDS tribunal members. I welcome this kind of initiative as levelling the playing field is necessary to avoid running across the application of divergent ethical standards in a given situation. This has become an issue with globalisation and transnational legal practice. I see this as particularly important for the proper enforcement of awards. Harmonised codes of conduct may also be a solution to the increased scrutiny that comes with investor-state arbitration. I would, however, caution against the singlehanded takeover of a code of conduct from a specific jurisdiction as harmonisation should not be achieved at the expense of fairness and balance.

How has the coronavirus pandemic impacted third-party What makes Peter & Kim stand funding in arbitration, if at all? How is increased scrutiny out from its competitors in the For our part, we have yet to see the towards social and environmarket? pandemic having any significant impact mental w elfare affecting I believe that Peter & Kim stands out for its on third-party funding. Generally, third- investment-treaty arbitrations? uniqueness. We established Peter & Kim to offer a truly international platform with a team culturally rooted in Asia-Pacific and western Europe. The firm thrived on identifying a gap in the market. Keeping a tight team of lawyers with expertise in serving European and Asian clients has given us more opportunities to represent a diverse range of claims and recent successes have shown that this formula works. While our size enables us to generally remain clear of conflicts, it has also allowed us to create a team of closely connected lawyers who can be trusted and work dynamically and in synergy. Expertise and past experiences are easily and commonly shared between offices, which promotes problem-solving skills and creativity. In addition, the number of lawyers in our firm acting as arbitrators gives us valuable insight that benefits our clients.

party funding was already on the rise even prior to the pandemic as evidenced for example by Hong Kong permitting thirdparty funding in 2019. Nevertheless, I noticed that the interest in third-party funding has been further amplified by the coronavirus pandemic as it not only initiated new claims but also impacted companies due to a, at times severe, reduction in cash flow. The overall lack of funds was naturally conducive to more claims requiring third-party funding. However, this increase in demand is not without impact. While the competition to receive funding was already steep prior to the pandemic, due to the greater number of disputes requiring third-party funding, I believe that successfully obtaining funding has become even more challenging and that this trend is unlikely to change in the short term.

arbitrator. My roles as vice-president of the ICC International Court of Arbitration

I am aware that, for instance, UNCITRAL is working on putting together a code of

Some practitioners have told us of greater international harHow do your former vice-chair- monisation between arbitration manships and memberships at codes of conduct, particularly arbitration councils and com- for investor-state arbitramittees enhance your practice? tion. Is this something you I believe these roles have complemented see, and how could it change my practice both as a counsel and as an arbitration?

whoswholegal.com/thought-leaders

The general trend goes towards a rise in the number, as well as variety, of claims related to social and environmental welfare and more generally, environment, social and governance issues. Notably, a few high-stake claims have brought much publicity to the matter. We have for instance seen that the energy sector has been particularly affected by such claims. Spain and the aftermath of the modification of the incentive regime for renewable energy is a prime example of this as I have seen as the president of an ICSID ad hoc committee for such a case prior to it settling. As a result of increased civil society advocacy regarding investor-state arbitration relating to social and environmental welfare, the issue has slowly made its way to the top of the agenda for many states. As such, model agreements and investment treaties have started incorporating provisions relating to sustainability. Likewise, just like the US re-entered the Paris Agreement, some states may try to join in on achieving greater sustainability goals. I believe that this may result in a potential increase of investor-state claims, particularly considering the breadth of causes of actions that can be brought under the topic of social and environmental welfare.

121

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat? Speaking from my experience, I believe that while virtual arbitration has brought increased flexibility to the arbitration practice, its impact will not be so substantial as to affect the parties’ considerations when selecting the geography of their arbitrator’s seat. That is because while parties have warmed up to virtual hearings, I find that some parties, and especially governments, still appear to prefer traditional in-person hearings. Commercial parties may be more inclined to accept virtual hearings, but key considerations when selecting an arbitrator will rather focus on availability, relevant experience, knowledge of the applicable law and industry as well as whether the arbitrator has civil or common law experience needed. In addition, in my experience, as certain types of hearings are better held in person, geography may not be a leading factor for selection. For example, I recently participated in a second CMC in Tokyo as the

president of a tribunal during which I applied the Gangnam Principles. Because the CMC was conducted over a full day during which the parties were asked to make submissions on their respective positions and the tribunal put questions to the parties, it was decided that an in-person format was desirable. This also allowed the tribunal to meet prior to the CMC. While all members of the tribunal were theoretically based in Asia, one tribunal member and I came from Europe and the US. This is a clear example on how arbitrators and counsel are now starting to travel again and may not be in their home jurisdiction prior to or at the time of a hearing. As such, as parties’ preference remains for an in-person hearing and/or due to circumstances calling for such a format, the influence of the geography of their arbitrator’s seat should not be overstated.

What steps can be made to increase diversity in the arbitration field?

Diversity is manifold and concerns race, gender, etc, as well as arbitrator, counsel, and arbitral institutions. The arbitration community has made a slow but growing

Peers and clients say: “One of the leading arbitrators in Korea” “Kevin is highly experienced and sophisticated” “A leader in the field”

122

Arbitrators & Counsel

effort to improve diversity over the past decade or so and the newly created pledges and taskforces will hopefully improve the current situation. Focusing on diversity in arbitrators, I would suggest for lawyers and co-arbitrators to nominate women and minority lawyers as well as younger practitioners as chairperson as they are still currently less likely to receive a nomination as co-arbitrator, even when they lack experience. Indeed, if nominated as a chairperson, they would then be able to lead the proceedings while being assisted by co-arbitrators who would be able to provide guidance and assistance. This would likely result in more experience and visibility, leading to repeat appointments by parties and/or arbitral institutions. On a more theoretical plane, arbitrators should endeavour to remain cognisant at all times of the impact of cultural differences on proceedings. Arbitrators should not let common sense as applied in their jurisdiction restrict their understanding of a case. Diversity is vital to arbitration as it is not a system ruled by a single set of laws and intended for users coming from a single jurisdiction.

Global Restructuring Review (GRR) is the trusted source of worldwide news and analysis for restructuring and insolvency practitioners. It keeps you up to speed with the global issues and trends that matter, giving you the detail, and depth you need to operate successfully. Know more Keep informed with the latest news, research and opinion, so you can stay connected, advise with confidence and compete effectively. Find the edge Connect and collaborate with your peer group, clients and colleagues. Get the full cross-border view from leaders in the field, to help you identify opportunities and research your position. Lead the market Understand the trends and harness the data sets, tools and insight you need to guide strategy, streamline decision-making, and keep your practice in front.

Find out more: SUBSCRIPTIONS@GLOBALRESTRUCTURINGREVIEW.COM

globalrestructuringreview.com lbresearch.com

Louis B Kimmelman

Kimmelman Arbitration

New York www.kimmelmanarbitration.com lbkimmelman@ kimmelmanarbitration.com Tel: +1 917 254 7869

Biography Louis B Kimmelman is an independent arbitrator and New York qualified lawyer with over 40 years of experience in resolving international commercial, construction and investor-state disputes. He is a fellow of the Chartered Institute of Arbitrators (FCIArb). Prior to January 2021, he was a partner of Sidley Austin LLP in New York. Mr Kimmelman is chair of the New York International Arbitration Center (NYIAC) and co-chair of the Fordham International Arbitration and Mediation Conference.

124

Arbitrators & Counsel

What inspired your choice of international arbitration as a field of practice and what do you enjoy most about international arbitration?

I was attracted to international arbitration for several reasons. First, the people in this field are special. They are fascinating and engaging and diverse. They come from different countries and cultures; they are sensitive to languages and the importance of words; they are interested in events around the world and in people everywhere. Second, the work is always challenging. Every case involves new issues and problems and constantly invites creativity. Third, the practice is dynamic and always changing. It provides parties and counsel with opportunities to craft their own dispute resolution process. This is what drew me to the practice initially and has continued to keep me fully engaged ever since.

What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for experienced lawyers?

There are several ways to acquire and demonstrate the skills that are needed to become a successful arbitrator and arbitration practitioner. Every arbitral institution has a young practitioner group that seeks aspiring arbitrators and practitioners to contribute to its programing and events. Every arbitration publication looks for contributors who can provide current updates on global developments as well as topical articles. Every arbitration committee and organisation seeks the active participation of younger practitioners. These opportunities to contribute to the field and work with other practitioners are important in developing expertise and a reputation. They are also important in developing relationships. Relationships are a precious asset to arbitration practitioners. Ultimately, they are helpful in receiving appointments. Relationships with more experienced practitioners can be particularly valuable

because they may lead to mentoring opportunities. More experienced arbitrators have a special role to play as mentors in helping the next generation of arbitrators and arbitration practitioners.

disclose and what information parties are entitled to receive.

It is time that all arbitral institutions that provide for an emergency arbitrator in their rules define the standard to be applied by the emergency arbitrator in determining whether to grant interim measures. Most rules are silent on this issue. Parties should know when they select rules what legal standard will be applied to determine whether emergency relief may be granted.

There should be universal conflicts rules that apply to administered arbitrations by all institutions. This issue is fundamental to the integrity of the arbitration process. Institutions do not now distinguish themselves as requiring more or less disclosure or arbitrator independence. Nor should they. This is such an importanl issue that there should be a uniform standard that applies to arbitrators in all cases under all rules.

Given the increasing amount of conflicts arbitrators and counsel are experiencing, should If you could implement one there be a set of universal conreform in international arbitra- flict principals across arbitration, what would it be? tion institutions?

In your opinion, will virtual hearings continue in a post- What steps can be made to covid world and what impact increase diversity in the arbiwill this have? tration market? Virtual hearings and hybrid hearings – a combination of in person and virtual hearings – are here to stay. Many hearings or portions of hearings do not need to be conducted in person. The time and expense of travel does not have to be incurred for every hearing in every case. Parties, counsel, and arbitrators can now make more cost-effective and efficient decisions about how a hearing can be conducted using virtual technology.

Increasing diversity in the arbitration market is linked to increasing diversity in the overall legal services market. This means that efforts to promote diversity must be directed at all segments of the market that serve as an entry point for arbitration practitioners. The focus should begin with recruiting diverse talent in law schools and at firms and then nurturing the development of that talent over the course of many years of legal practice. Those of us who act as arbitrators or as counsel have an obligation to try to further diversity in our particular segments of the arbitration market.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree? What advice would you give to Arbitrator independence and disclosure is practitioners looking to estaba hot topic because it is fundamental to the lish their own firm? integrity of the arbitration process. It is also a hot topic because there is uncertainty about how the applicable standards are to be applied and the scope of disclosure required. The standards should be clearer and easier to follow. However, I do not believe that the current standards are too restrictive. Parties are entitled to sufficient information to make informed decisions about proposed arbitrators. Greater clarity is needed as to what an arbitrator must

Arbitration practitioners are in a competitive service business. There may be many personal reasons for establishing one’s own firm. But there needs to be a business case for doing so. A simple question should always be asked before setting out on one’s own: what can I offer to users of arbitration legal services that is not now being provided? The answer to that question should inform the decision about whether to go solo and how to do so.

Peers and clients say: “He is a great leader for complex cases and as arbitrator” “He provides sharp legal analysis” “A great and smart lawyer who is much in demand” “Absolutely superb” whoswholegal.com/thought-leaders

125

Gisela Knuts

Independent Arbitrator Helsinki www.giselaknuts.com

gisela.knuts@giselaknuts.com Tel: +358 407 698265

Biography Gisela Knuts is an independent arbitrator based in Helsinki, Finland. During more than 20 years at Roschier, Attorneys Ltd, at which she was partner and head of the dispute resolution practice in Finland until end of May 2022, she acted as lead counsel in multi-million-euro disputes in various fields. As of June 2022, she practices as a full-time arbitrator. Gisela is recognised as a leading expert in dispute resolution in Finland by multiple international legal directories.

126

Arbitrators & Counsel

What attracted you to a career in arbitration?

Already early on in my career, I was attracted by the adversarial nature of dispute resolution, and of arbitration in particular. After all these years, it still fascinates me. In addition, the transnational nature of the work and the opportunity to have a ringside seat in international business makes arbitration a very interesting field to work in. I am happy to have found a field that I still feel passionate about after more than 20 years in it.

What qualities make for a successful arbitrator?

As counsel, I have always appreciated hands-on, hard working arbitrators who are not possessed by due process paranoia, while of course always keeping in mind the importance of rendering an enforceable award. As an arbitrator, I try to live up to those values. In addition, a quality that is often overlooked in an arbitrator is curiosity. I believe a good arbitrator needs to be curious in nature – both when it comes to understanding the case and when it comes to following the development of our field. International arbitration is constantly evolving and in order to ensure that it remains an attractive method of dispute resolution, any successful arbitrator must keep up to speed with – and contribute to – this development.

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

I think the main advantage is the trust in the system that a multilingual arbitrator brings. Because language is never just about language skills, it is also about having a deep understanding of cultural differences. And in my experience, such cultural differences are often the root cause of the dispute between the parties.

There has been a lot of activity What made you decide to in Europe regarding infrastruc- b e c o m e a n i n d e p e n d e n t ture, with major highway and practitioner? rail projects expected to impact I think there comes a time in every arbitrathe market. How effective is tion practitioner’s career when you start arbitration at dealing with such considering the advantages of being an cases at the moment? independent arbitrator. In particular for In my view, arbitration remains the best option to reach a final and enforceable resolution of the parties’ dispute in these fields. There is no better option at present, and there will always be a need for a fall-back option that leads to an enforceable result. Having said that, I believe there is much room for improvement in the way we resolve disputes amicably, before they end up in arbitration. There is still much to do in the field of ADR, not in the least dispute resolution boards, which can be quite effective in these types of projects, especially if they are employed early on. I do not think this development is in any way at odds with arbitration as the preferred method for reaching an enforceable result.

those who practise in big law, minimising conflicts is also a key driver. Once I started sitting more as an arbitrator I also realised how much I actually enjoy drafting awards. In my role as leader of big counsel teams, I have mainly reviewed drafts prepared by my (very skilful) associates, while as an arbitrator I get to draft myself – just like I did when I started off as an associate. And drafting really is so much fun! It is an integral part of the adjudication process, and of making sure that you get to the right result. For me, this was a major revelation. And, of course, the freedom that the role as independent arbitrator brings is undisputable.

What green arbitration trends Looking back over your career, are currently prevalent in the what has been your proudest market? achievement? One of the few good things that the covid-19 pandemic resulted in is the digital leap that we all have experienced during the past two years. The increased use of videoconferencing tools significantly reduces travelling and resource spending. Also, the digital tools for case management have helped us rapidly move towards paperless arbitrations. One of the main challenges over the next few years will be to ensure that we continue considering these digital options after the pandemic, and that we do not automatically go back to the way things were done before. While I am not a strong proponent for digital hearings as the default option, the digital solutions inevitably bring a lot of flexibility. I hope we will be able to continue using those flexible solutions once they are no longer a must.

Undoubtedly the fact that I have been able to get where I am today – leaving a successful counsel career in one of the best law firms on the Nordic market and moving into being a full-time arbitrator – while maintaining a great relationship with my husband and raising two wonderful daughters together with him. My career has been a team effort, and I am really proud of what we have achieved together!

What is the best piece of advice you’ve ever received? Choose your battles.

Peers and clients say: “Gisela is very skilful as counsel and arbitrator” “She is one of the most respected and trusted arbitration lawyers in Finland” “She is an outstanding attorney with the sharpest of legal minds” whoswholegal.com/thought-leaders

127

Christian W Konrad

Konrad Partners

Vienna www.konrad-partners.com c.konrad@konrad-partners.com Tel: +431 512 95 00

Biography Dr Christian W Konrad is the founding partner of Konrad Partners, an international arbitration law firm with its headquarters in Vienna and further offices in CEE/SEE. His practice covers interstate, investment and commercial disputes. He is an Austrian Rechtsanwalt, a solicitor of England and Wales, and a Euroadvokat in the Slovak and Czech Republics. Christian is a chartered arbitrator (CArb) and frequently serves in this role; he also acts as a legal expert and counsel in proceedings under the auspices of all major arbitral institutions. He was educated at King’s College London and the University of Vienna.

128

Arbitrators & Counsel

What do clients look for in an effective arbitrator?

The parties do not want an arbitration, they want a solution to their dispute, so that they can continue focusing on their business. An arbitrator is more than just a dispute solver, he is someone who can effectively guide the parties in the process. Clients expect an arbitrator to listen to their matters and analyse each position diligently within a short period of time. Parties expect the arbitrator to “get involved” and understand the subject matter and, at the same time, stay impartial and independent, guided by ethical considerations.

Looking back over your career, what is the most memorable arbitration you have been a part of? All the cases I acted upon entail something memorable, which eventually contributed to my professional development as an arbitrator.

arbitrators can greatly contribute to this development, which I personally welcome.

resolution of a dispute is warranted, as much the parties’ expectations need to be observed. Expedited summary proceedings can be useful in specific circumstances but need to be weighed carefully against this background.

How does your experience assisting clients in a wide range of sectors enhance your arbitration practice? How do you ensure you develop in-depth In what ways is arbitration sector knowledge? becoming greener? Do clients Arbitrators are multi-disciplinary experts. also have a role to play in this Each case, even from the same industry transformation? and sector, is different. Arbitration work allows lawyers to practically experience various industries at their best and at their worst. Once you have been through the cycle of a power plant project, you will better understand the needs of your clients in the next contract negotiations and, of course, in related disputes.

To what extent is arbitral discretion limited by due process?

Arbitral discretion is an important element for efficient conduct of the proceedings. Due process is a crucial legal concept to safeguard the parties’ rights in the dispute. If arbitral discretion is exercised with the necessary skills and diligence, it will usually not be limited by due process considerations.

We all do have an obligation to protect our planet, irrespective of our role: client, lawyer, arbitrator, but also as an arbitral institution. I am pleased to see that paper filings have become a method of the past and many procedural meetings take place remotely. The whole process was also speeded up by the covid-19 pandemic. There is a constant need in identifying better ways to conduct hearings online and, in particular, to collaborate on arbitrations using innovative platforms. All of this brings additional benefits like improved cost and time efficiency. Eliminating travel time has made scheduling meetings much easier, which can already strip a couple of months from an average arbitration. The use of data e-storage platforms allows access to the files anywhere in the world, without a need for hard copy bundles. Legal tech has become one of the key drivers for greener arbitration.

Some jurisdictions are drafting new rules on expedited summary proceedings in arbitration. How fast can disputes proceed without breaching What is the best piece of advice procedural rights? you’ve ever received? Arbitral proceedings serve parties in a commercial context. As much as a swift

No one knows enough about anything to be a pessimist.

Peers and clients say: “Christian is a very smart arbitrator and counsel” “Highly recommended for his leading commercial arbitration expertise” “A very strong and experienced arbitrator” whoswholegal.com/thought-leaders

129

Nadja Jaisli Kull

Bär & Karrer AG Zurich www.baerkarrer.ch

nadja.jaisli@baerkarrer.ch Tel: +41 58 261 53 12

Biography Nadja Jaisli co-heads Bär & Karrer’s arbitration practice and specialises in international commercial arbitration and litigation. She has gained particular experience in the pharmaceutical, automotive, commodities, and banking and finance industries and frequently handles complex disputes arising from M&A transactions, joint ventures and shareholders’ agreements, the sale of goods as well as licence and supply agreements. In addition to her work as party counsel, Nadja Jaisli frequently sits as an arbitrator.

130

Arbitrators & Counsel

What inspired you to pursue a legal career?

I really did not intend to pursue a legal career when I started law school but instead wanted to become a journalist. During a student trainee programme at a law firm, I had the opportunity to get an insight into the work of the disputes team. I was immediately fascinated by the work of dispute lawyers, especially the combination of legal and advocacy skills, and the great importance of the factual part of most cases.

going on for years (I remember that the associate from whom I took over condoled with me for being assigned the case). This case then accompanied me until after my election as a partner. At some point, I became the lead associate, conducted my first cross-examination and submitted the post-hearing brief as a young partner. After the final award, I represented the client in a follow-up litigation in the context of the same dispute, which was ultimately settled almost a decade after my first memo. So, this case was certainly memorable and influential in my career.

What qualities make for a successful arbitrator? The current arbitration market An effective arbitrator must be able truly is reportedly working with a to understand the parties’ positions, both small pool of arbitrators, and legally and economically, in the context of it is becoming increasingly difthe specific industry. Further key qualities ficult to find arbitrators who do include detailed preparation irrespective not have a conflict of interest. of the amount in dispute, integrity and Do you agree, and if so, how empathy, strong case management skills can this issue be effectively (for the chair), and, importantly, the ability addressed? and willingness to take decisions.

How has the role of arbitrator changed since you started your career?

The role as such has not changed that much, but cases have tended to become more complex, and the users’ expectations in the technical skills of an arbitrator are high. At the same time, arbitration institutions are rightly expecting tribunals to work efficiently and render their awards within relatively short time limits, and the arbitrators’ fees are closely monitored to control the arbitration costs.

Looking back over your career, what is the most memorable arbitration you have been a part of?

There have been several memorable cases, and hopefully many more to come. On my very first day of work as an associate, I was asked to draft a legal memo in a complex arbitration that had been

I have the impression that the pool of arbitrators is getting bigger and more diverse. In particular, gender diversity in tribunals is (slowly) improving thanks to great efforts by arbitration institutions and additional players in recent years. While there is still great need for improvement, I am positive that things are moving in the right direction, which I also experience myself.

As a partner at Bär & Karrer, what are your main priorities for the firm’s development over the next couple of years?

Among my main priorities is to develop the next generation of lawyers and ensure that we provide an environment where the young talents want to work and stay for the long term while continuing to provide first class services to our clients.

What is the best piece of advice you’ve ever received? There are different paths to success – be authentic and do it your own way.

Peers and clients say: “Nadja is always well prepared” “She is a smart and dedicated practitioner” “Nadja is very much in demand as counsel and arbitrator” whoswholegal.com/thought-leaders

131

Carolyn Lamm

White & Case LLP Washington, DC www.whitecase.com

clamm@whitecase.com Tel: +1 202 626 3605

Biography Carolyn Lamm, a partner and chair of international disputes: Americas at White & Case, serves as lead counsel in international arbitrations in ICSID, ICC and other arbitral fora, and in related litigation in US Courts for foreign states, foreign state-owned companies and foreign corporate entities. She is an arbitrator on the ICSID list, first nominated by the US and later the government of Uzbekistan. She has served as arbitrator in proceedings before, inter alia, ICSID, SIAC, ICDR, AAA. Carolyn is the distinguished faculty chair at the University of Miami School of Law in the White & Case LLM programme in International Arbitration.

132

Arbitrators & Counsel

What attracted you to a career in arbitration?

I pursued a career in international arbitration because of my respect and passion for advocacy, international law, and people of different legal systems, cultures, religions, and economic and political systems. All have been fascinating and provide a stimulating and intellectually enriching practice.

What do clients look for in an effective arbitrator?

The most important qualities are an appreciation of international and national law, and a balanced approach to applying the applicable rule of law, yet with a sense of fairness. An effective arbitrator must also devote time to reviewing the parties’ submissions and providing each with the opportunity to present their case, and assure it is understood by the tribunal. Also critical are an inquisitive mind to consider all of the relevant evidence and facts and careful thought to analyse the law and facts. Focusing, to avoid distractions by extraneous or collateral issues, is important as well. Finally, respect for the advocates, the procedures and a real effort to collaborate on the tribunal are essential.

What are the advantages and disadvantages of having a global practice?

I see primarily advantages: In today’s world, most of the significant businesses and disputes are global. One needs to appreciate the variations in approach among countries, communities and legal systems. Global experience with business

and legal systems is important to deciding disputes and facilitating resolutions.

MUST be balanced against states and companies having to defend against more claims. There is a real tension.

To what extent has the international arbitration community Should tribunals be more bullmet the challenge of improving ish about corruption defences diversity in recent years? and examining evidence for We have seen progress over the past corruption in proceedings? decade. I am chairing a multinational task force on gender diversity in international arbitration with participation of all the major arbitral institutions and international organisations. This group has studied and produced an excellent report presenting the data and assessing progress. We also provide recommended pathways to promote gender diversity among counsel, tribunals and end users. Within law firms, it is most important to provide women opportunities and to promote with our clients the use of women on tribunals, etc. We have made progress but there is still much to do to achieve balance. It will take a sustained effort on the part of us all. One effort that our firm has undertaken is to be a signatory of the Equal Representation in Arbitration pledge, which seeks to increase, on an equal opportunity basis, the number of women appointed as arbitrators in order to achieve a fair representation as soon as practically possible, with the ultimate goal of full parity.

Yes, corruption is a major blight on development and tribunals do have an obligation to inquire and examine the evidence with care.

What advice would you give to someone starting out in arbitration?

My advice is to perform with excellence; leave no stone unturned when looking for and analysing the facts and the law; be strong and clear analytically in your view of the law. Do your very best to serve your clients, 24/7.

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

I enjoy a wonderful practice with interesting clients. Teaching upcoming lawyers the skills needed for excellence is something I continue to enjoy.

What role do you see third-party funding playing in arbitration moving forward? The funding of claims has provided access to justice for some cases otherwise unable to proceed. However, third-party funding

Peers and clients say: “Carolyn is one of the best in the world of international arbitrations” “She is an absolute phenom in terms of her understanding of the facts of a case” “A top-class lawyer” whoswholegal.com/thought-leaders

133

Crenguta Leaua

Leaua Damcali Deaconu Paunescu – LDDP Bucharest www.lddp.ro

cleaua@lddp.ro Tel: +40 31 405 43 04

Biography Experienced arbitrator, Crenguta Leaua is listed in Austria, Bulgaria, China (CIETAC and SHIAC), Malaysia, Moldova, Poland, Romania, Slovenia and is a member of the Tech List of the Silicon Valley Arbitration and Mediation Center (SVAMC). She is a past vice-president of the ICC Court and currently a member of the SVAMC Board, chairing the SVAMC Initiative on Arbitration for Blockchain-based Transactions. She is a managing partner of Leaua Damcali Deaconu Paunescu – LDDP (a GAR 100 listed firm) and acts as counsel in both investment and commercial arbitration.

134

Arbitrators & Counsel

What trends are you seeing emerging in the types of disputes currently going to arbitration?

Disputes where technology is part of the subject matter of the disputes are certainly on the rise, in all industries.

What skills are required for arbitrating in different seats, and how does your experience on this front enhance your practice?

In my view, one needs to have a mental map of the legal systems, in terms of comparative law, but then to have the ability to move into the specificity of each system of law. One needs to be humble in terms of their own knowledge: correct application of another law than the one of legal education of an arbitrator cannot possibly be made unless one has respect for other legal systems, and does not think in terms of a superiority of certain legal systems over others. Otherwise, there is dangerous inherent bias of the judgement of that arbitrator that prevents correct application of the law at the seat of arbitration.

Your experience spans a range of sectors from construction to aviation – to what extent is sector-specific knowledge on the part of the arbitrator important when handling commercial disputes?

Industry-related experience is of the highest importance, especially in technology-related disputes, even if the matter in dispute is purely commercial. The deep understanding of an industry, or at least

of being acquainted with the ecosystem of that industry provides parties with a better chance for their case to be properly understood.

What would be the advantages and challenges of developing international accreditation procedures for arbitral institutions based on common standards?

I realise that the “mushrooming” of arbitral institutions is a phenomenon one can see in many countries, and in some cases this might threaten the reputation of arbitration, in general. However, accreditation procedures will inevitably lead to standardisation and this, in my view, will kill the very major advantage of arbitration – adaptability to the parties’ needs, innovation in terms of procedures. This is the very purpose of arbitration – to be an alternative to the standardised procedure of the state courts. An accreditation system would inevitably advantage the existing arbitral institutions with long-standing activity, building up the very standards for the accreditation criteria, and by that, it will limit the evolution of alternatives, of new ideas. So, with all risks, I would consider that an accreditation system would have an inhibitive effect one should avoid.

What steps can younger arbitration practitioners take to improve their chances of getting appointments?

I don’t think that getting an appointment as arbitrator should be an aim in itself. For a while, now, I am reconsidering the role of arbitrators. Diversity of arbitrators, the wider interpretation of the duty to

disclose as defined by the recent arbitral rules, much wider than the IBA guidelines, and the very purpose of the arbitration to adapt to parties’ needs, will eventually lead to a statistic of not so numerous appointments for the same person as before. In this context I believe that younger professionals – as in fact anyone else, irrespective of age – should realistically look at being an arbitrator as a rare occasion and focus mostly on the activity of counsel or professor or other types of professional activity, building thus their professional value from this perspective. If this is about increasing the probability of appointment of young arbitrators – I think that intergenerational appointments are the best chance for appointment for young professionals. So, they should keep a close connection with their peers.

What is the best piece of advice you’ve ever received?

It may be that the best pieces of advice in life we get are from people much younger than us. In my case, it was the advice that my son gave me once, when he was rather young. It was the result of a summer school game. A professor drew a circle and challenged the students: “This is a fortress. You are inside it. How do you get out?”. Answers started to flow: “climb the wall”, “jump over it”, “break it”. All were fighting the wall. My son’s answer was “The only way to escape from the circle is to look up!”. That is so true, in every single situation in life, whether when being surrounded by the walls of exterior circumstances limiting us, or when living in the circle of our own round comfortable thoughts.

Peers and clients say: “She’s highly experienced in commercial arbitration” “A go-to for CEE disputes” whoswholegal.com/thought-leaders

135

Steven Y H Lim

39 Essex Chambers Singapore www.39essex.com

steven.lim@39essex.com Tel: +65 96958723

Biography Steven is an arbitrator and barrister. He has over 80 appointments as presiding, sole, co-arbitrator and emergency arbitrator, seated in Singapore, England, USA, India, South Korea, Thailand and Vietnam. He is also instructed as lead counsel in arbitrations. He has extensive experience with SIAC, ICC, ICDR, SCMA, KCAB, UNCITRAL rules, and ad hoc cases involving Asia-Pacific jurisdictions and farther afield in a broad range of commercial disputes. He is recommended as “the perfect arbitrator”.

136

Arbitrators & Counsel

What fascinates you about arbitration practice?

It’s the choice of law issues that international arbitration throws up. I also enjoy the challenge of finessing the procedure for a case to best suit the issues for determination.

How did you break into arbitration practice?

I was in the right place at the right time. I commenced practice in Singapore in 1994. This gave me a ringside seat to the growth of international arbitration in Singapore and Asia, then in its nascency. In 1998, I managed to get into the ring myself with my first ICC international arbitration case as counsel. The rest, as they say, is history.

anticipated this in my commentary on the Singapore Court of Appeal decision in AKN v ALC [2015] 3 SLR 488 in [2017] 1 APAR SG 50. This is due in part to the increased complexity of disputes being arbitrated. Several challenges succeeded on grounds that the tribunal failed to consider an argument raised by a party or decided the case on points the parties had not raised and did not have the opportunity to address. Tribunals must be ever more vigilant and proactive in case management, especially with tracking the issues for determination in a complex case. Maintaining a clear view of the issues to be determined in consultation with the parties as the arbitration progresses will help the tribunal ensure they consider all arguments and issues before them for the award, and the parties are given the opportunity to address all issues and arguments the tribunal relies on.

The current arbitration market is reportedly working with a small pool of arbitrators, and it is becoming increasingly difficult to find arbitrators who do How has the pandemic made us not have a conflict of interest. rethink arbitration practice? Do you agree, and if so, how During the pandemic, we embraced techcan this issue be effectively nology to help us overcome the “tyranny addressed? of distance” – which had consciously or There is a smaller pool of arbitrators who are in demand. This creates issues with availability and conflicts. Independent practice as an arbitrator can ameliorate conflicts. A bigger and broader issue beyond conflicts needs to be addressed though. The users of international arbitration have become much more diverse. Panel constitution needs to reflect this. Diversification and expansion of the nationality, ethnicity, gender, and legal background of the arbitrator pool will create greater buy-in to the arbitral process, in addition to ameliorating conflicts.

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? There’s been an uptick of due process challenges to awards in recent years. I

subconsciously influenced the design of international arbitration procedures. Now that tribunals can quickly and effectively meet with parties online, we should reassess how arbitrations can be conducted and examine the extent to which commonly accepted procedures included an accommodation for the time and costs of physical meetings. The potential of this revolution goes beyond replicating physical hearings virtually. We must explore how technology can be used to reshape how arbitrations can be conducted more efficiently and efficaciously – tribunals can now engage substantively on the merits with the parties in virtual hearings more frequently; the arbitration can be broken into tranches of hearings instead of deferring the resolution of all merit issues to one final hearing at the end. It is critical we explore the efficiencies technology affords, and not just default to old practices when the pandemic abates.

Several institutions have adopted rules on expedited proceedings in arbitration. How fast can disputes proceed without breaching procedural rights?

Expedited procedures are applied in most cases because of the relatively low amount in dispute, not because of urgency or party agreement. Tribunals have an equal duty to ensure timely and efficient resolution of the dispute, as much as due process. With careful thought and consideration, it is possible to design a fair and efficient process to determine disputes within shortened timeframes. I did this for an ICDR expedited case that required me to hold a final hearing within 30 days of my appointment. Emergency arbitrators can effectively deal with complex issues in very short timeframes. This is equally possible with expedited proceedings, while preserving due process.

Early determination as been catching on as tool for time and cost efficiency in arbitration. Does this raise due process concerns?

Before making an early determination, tribunals need to hear and consider all the submissions that can be made on the issue or claim to be determined and satisfy themselves there is no evidence or argument any party can bring later, but has not yet brought, that will impact the decision. Early determination involves a full airing of all relevant issues including, if appropriate, a full evidential hearing of the issue or claim for determination – the right to be heard is preserved, despite the early determination. While the process is commonly called “early determination” it is better to think of it as fair and efficient determination at an appropriate stage given the nature of the claim or defence and the evidence and arguments that can be brought to bear on it.

Looking back over your career, what has been your most satisfying achievement to date? My work as arbitrator, particularly when the parties accept the decision, even though complex issues had been hard fought.

Peers and clients say: “Steven is the perfect arbitrator” “He is always on top of his cases and has a very good judgement and an excellent manner” “Steven is a fair-minded and extremely capable arbitrator” “He is highly sought after” whoswholegal.com/thought-leaders

137

Arthur Ma

DaHui Lawyers

Beijing/Shanghai www.dahuilawyers.com arthur.ma@dahuilawyers.com Tel: +86 18601247573

Biography Arthur is a partner at DaHui Lawyers and spearheads the firm’s cross-border dispute resolution/international arbitration practice. Benefiting from over 12 years of practice experience with a number of leading law firms in their Shanghai, London, Washington, DC, Hong Kong and Beijing offices, and his unique training with leading international arbitrator Neil Kaplan CBE, QC, Arthur is particularly apt in helping foreign investors in resolving their disputes with PRC entities either before domestic tribunals or international arbitrators.

138

Arbitrators & Counsel

What attracted you to a career in international arbitration?

International arbitration is by far the most international legal practice area that I’m aware of. It is perhaps its legal and cultural diversity that are especially attractive to me.

What are the advantages and disadvantages of having a global practice?

The advantages would include a global exposure to legal talents and the opportunity to make friends from all over the world. To be honest, I don’t really see many disadvantages. Even the challenges of working across multiple jurisdictions are part of what makes international arbitration so exciting.

advise younger practitioners in navigating them?

We always have an internal running work schedule to manage our tasks throughout arbitration proceedings, big or small, whether civil law or common law governs. Younger practitioners should follow instructions of their partners and seniors, but also need to try to think independently on how to best resolve the problems assigned to them.

How is the “Belt and Road” initiative changing the legal landscape and how can resulting disputes be better navigated?

The Belt and Road initiative is creating (as it should) more cross-border transactions between parties in different jurisdictions, which would normally favour international arbitration. This means there could be more work for Chinese and non-Chinese arbitration practitioners.

Are you seeing any green trends in construction-related arbitrations? Can we expect more fossil-fuel-related disputes to come as China becomes more What do clients look for in an committed to promoting green effective arbitrator in today’s development, as laid out in the environment? 14th five-year plan? Efficiency, organisation and dedication From a practice standpoint, some of the noticeable green trends in constructionrelated arbitrations include increased electronic arbitration submissions and cutting back on hardcopies in connection with hearing bundles. In terms of subject matter, any regulatory framework that ultimately applies additional scrutiny to parties operating in a highly regulated space will often lead to increased operating pressures and perhaps an increased likelihood of encountering business disputes. In this sense, any increase of environmental regulatory enforcement could also result in an increase of arbitrations in business sectors that must directly contend with such enforcement trends.

to quality — the same exact values that clients expect from their legal counsel.

Could the rise of virtual hearings lead to a greater mixing of different legal systems and arbitration institutions?

I’m not so sure about that. Virtual hearings have been used for decades, and I don’t see how they would inherently tend to mix legal systems and institutions. There may be a wider transmissibility of best practices among systems/institutions that are increasingly dealing with the same types of challenges, but in a sense that is always the case, whether or not hearings are held virtually or in person.

How do you effectively handle What is the best piece of advice a complex energy arbitration you’ve ever received? involving a civil law jurisdiction As my mentor Neil Kaplan CBE, QC always element, and how would you says: “Life is too short”.

Peers and clients say: “Arthur is an excellent lawyer for international arbitration” “He is one of the best” “He is a very well-prepared counsel with acute knowledge of common law” whoswholegal.com/thought-leaders

139

Dana C MacGrath

MacGrath Arbitration

New York www.macgratharbitration.com dana@macgratharbitration.com Tel: +1 917 952 2007

Biography Dana MacGrath, FCIArb, is an independent arbitrator based in New York on the rosters of various arbitral institutions. She has arbitrated numerous disputes over the course of her arbitration career of more than two decades. Previously she practised at Sidley, Allen & Overy and O’Melveny, and Sullivan & Cromwell. She has a broad range of industry experience, including oil and gas, LNG price reviews, construction, telecommunications, IP, life sciences, sale of goods and international investments.

140

Arbitrators & Counsel

What attracted you to a career in arbitration?

I was keen to work in international dispute resolution, having majored in French and living in Paris for a year in university. Fortunately, early in my legal career I was assigned to a large, complex international arbitration matter, from which I learned an extensive amount about arbitration procedure, the application of common law and civil law principles, arbitration written and oral advocacy, and how evidentiary arbitration hearings were conducted. I thoroughly enjoyed it and decided to focus my practice on arbitration and award enforcement. Now I apply my decades of arbitration practitioner experience to my work as an arbitrator.

In your opinion, what qualities make for a successful arbitrator?

It is helpful to have substantial arbitration practitioner experience, so you have faced many of the challenging procedural aspects of arbitration by the time you are serving as arbitrator and understand the perspective of counsel who appear before you. It is valuable to have handled arbitrations involving a variety of industries, seated in different countries around the world, and involving the application of different substantive laws (both common law and civil law). A thorough understanding of the New York Convention and award enforcement issues contributes to the success of an arbitrator of commercial disputes. Teaching arbitration and related courses is valuable; staying knowledgeable about arbitration legal and practice developments demonstrates engagement in the field. Finally, it is important to be able to work collegially with co-arbitrators on a tribunal and to manage counsel and tribunal members when serving as chair.

How has the arbitration market changed since you first started practising? The increased use of technology has changed arbitration advocacy and has

made arbitration more time and cost efficient. Technology also makes accessible legal resources on arbitration that required niche expertise to research when I started practicing arbitration. The increase in international business transactions has led to arbitration becoming an increasingly preferred dispute resolution method. Now many long-term international supply contracts have arbitration clauses. Some long-term contracts include price review or price reopener provisions that, in the absence of party agreement to a price adjustment, may result in a price review arbitration. Many complex international patent disputes are resolved through arbitration, as are energy sector disputes, construction industry disputes and financial disputes. Treaty arbitration has increased substantially. Diversity of arbitrators and arbitration practitioners is increasingly important.

What role do you see thirdparty funding playing in arbitration moving forward?

Third-party funding of arbitration is likely to increase. Many arbitral institutions have incorporated rules or practice notes specific to disclosure of the identity of funders for conflicts check purposes. The increase in arbitration funding may lead to an increase in arbitration. Additionally, there is now legal authority for a prevailing party to recover its costs of arbitration funding.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients?

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

Recent statistics reflect that the arbitral institutions have improved the gender diversity of arbitrators appointed, but women are still significantly underrepresented on tribunals. Many organisations, such as ArbitralWomen, the Equal Representation in Arbitration Pledge, Racial Equality for Arbitration Lawyers, WWA-LatAm and others, aim to increase the visibility of well-qualified, younger and diverse arbitrators. The arbitration community need to be more inclusive.

Why did you decide to set up your own independent arbitrator practice?

After two decades in the arbitration practice group at leading global law firms, I decided to set up my independent arbitrator practice to dedicate more time to serving as arbitrator and be free of the potential conflicts that arise at a law firm. I chose to take this step far earlier than law firm retirement age.

What advice would you give to up-and-coming practitioners hoping to one day be in your position? Work hard and develop your core arbitration skillset as early as possible in your career. Develop a network of mentors and peers. Actively participate in arbitration-related organisations. Publish articles. Accept speaking engagements. Have patience, stay focused, and thank those who mentor and support you as you develop your career.

The advantages of having substantial arbitration experience in diverse geographic areas and industry sectors are that it gives an arbitrator versatility to understand and decide a wide array of disputes in many regions across the globe, to manage the arbitration effectively and draft an enforceable award.

Peers and clients say: “Dana is highly recommended for commercial arbitration” “She is an absolutely fantastic leader” “She is smart, collaborative and a relentless advocate for diversity” whoswholegal.com/thought-leaders

141

Jean Marguerat

MLL Meyerlustenberger Lachenal Froriep Ltd Geneva www.mll-legal.com

jean.marguerat@mll-legal.com Tel: +41 58 552 01 00

Biography Involved in 100-plus international arbitration proceedings (ICC, Swiss Rules, CAS, VIAC, LCIA, DIA, ad hoc) – as counsel, arbitrator or legal expert, involving sale of goods (incl. commodity trading), distribution, construction, JV, M&A, IP and sport-related disputes – Jean Marguerat also acts as counsel in matters concerning arbitration before Swiss courts. Jean co-chairs the Swiss Arbitration Association Geneva group and presides over the Spanish Arbitration Club’s Swiss chapter. He in one of the authors of the Commentary on the Swiss Rules of International Arbitration.

142

Arbitrators & Counsel

What motivated you to spe- Many arbitral awards are cialise in international dispute starting to end up back in resolution? court for enforcement proceedBecause it is fun! You work in an interna- ings. Does arbitration have an tional context, you elaborate strategies, enforcement issue, and how you put all your skills at play to win or could this be addressed if so? settle on good terms for your client. Every case is unique, and you meet very interesting people from different countries and industries. Having studied and worked in Switzerland (both in French and German), Spain and England, international dispute resolution came as a natural choice.

What do clients look for in an effective arbitrator?

Clients look for fairness, efficiency and understanding. The cultural and human aspects are often overlooked; an effective arbitrator understands the legal, procedural and commercial elements of a matter in their context.

How has your membership of the Swiss Arbitration Association (ASA) enhanced your role as arbitrator? ASA gives arbitration practitioners an excellent platform for education and opportunities for them to interact. It allowed me first to listen to experienced practitioners and then to also intervene as speaker or organiser of ASA events in Switzerland and abroad, enhancing my technical knowledge and expanding my network.

The New York Convention, on which enforcement rests, is a defining feature of international arbitration. Though it has been signed by a large majority of countries, it is true that each country has its particular approach towards its application, which can lead to huge differences. This issue is to be fixed in each country, through a liberal attitude towards arbitration both at legislative and judiciary levels.

In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation?

The movement to allow the electronic submission of briefs and exhibits has accelerated during the pandemic and is here to stay. The same goes for the virtual hearings, at least for procedural hearings and hearings on the merits for smallvalue claims. Thanks to its adaptable nature, arbitration is becoming greener: both paperless exchanges and the holding of virtual hearings constitute a healthy and necessary progression towards an environmental-friendly practice. Clients have an important role in embracing these changes, which are in line with the global push for a greener economy.

Sources report a trend of arbitration practitioners being What advice would you give to involved when contracts are younger practitioners hoping drafted. How does this benefit to one day be in your position? parties in a contract? Work hard, take responsibility on cases, It is indeed my experience and it is certainly the best way to (i) ensure that the dispute resolution clause will correspond to the needs of the client, and (ii) avoid problems of pathological or inadequate clauses. I am always surprised by the number of pathological clauses I come across.

participate actively in the young arbitrators’ groups to build a network with your peers, enjoy what you do, and remain true to yourself.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished? Win a case before the European Court of Human Rights (we have one pending now).

Peers and clients say: “Jean is really excellent as counsel in international proceedings” “He always takes an impressive, creative approach” whoswholegal.com/thought-leaders

143

Pierre Mayer

Mayer Greenberg

Paris www.mayergreenberg.com pierre.mayer@mayergreenberg.com Tel: +33 1 85 09 01 58

Biography Professor Pierre Mayer has acted as counsel or arbitrator in hundreds of proceedings, in commercial and investment matters. His experience spans a variety of sectors and all forms of contracts. He is the author of the reference textbook on French international private law and of a general course at the Hague Academy of International Law. He is a founding partner of the firm Mayer Greenberg, where he focuses on his practice as arbitrator.

144

Arbitrators & Counsel

What inspired you to pursue a legal career?

My father was a lawyer and transmitted to me a very strong desire for justice. Injustice unravels me. In addition, I find a lot of intellectual stimulation in the legal reasoning, and the resolution of complex problems. This is one reason why I have always preferred to act as arbitrator, and never much enjoyed acting as counsel.

This introduces a natural bias in the disclosure system. No universal guidelines can solve that.

Can force majeure claims arising from the coronavirus pandemic still be brought in the near future or has the ship How is increased scrutiny sailed on such claims? towards social and environIt’s hard to tell. However, so long as the mental w elfare affecting statute of limitation has not expired we investment-treaty arbitrations?

Some practitioners report could still see such claims for the next that, post pandemic, arbitra- years to come. tion costs are deterring parties from bringing matters. Is this What role do you see third party your experience? funding playing in arbitration Not really. I have not seen any change in the moving forward? number of appointments as arbitrator. I do not act as counsel.

Given the increasing amount of conflicts arbitrators and counsel are experiencing, should there be a set of universal conflict principles across arbitration institutions?

The issue of conflicts is very difficult to tackle because an arbitrator’s duty of disclosure is hard to implement in practice. The problem is not so much the lack of uniform rules. The general principles are well established and widely shared, but the difficulty in capturing all circumstances that need to be disclosed at the time of disclosure remains. To fulfil their duty, arbitrators depend on software, on the reliability of information entered electronically, their own human memory, and their appreciation of what is notorious or what is not. In addition, the duty of disclosure runs against the arbitrator’s interest. Every arbitrator would be very disappointed to miss out on an appointment due to a disclosure.

arose. The thought of having to master new tools was daunting at times. However, the general view – which I share – is that the arbitration community adapted very quickly and very well to new working methods and new tools.

I think third-party funders have a role to play. Parties to arbitration agreements are not always aware of the options available to finance the proceedings. They too often ignore that they can request funding and that it can be an attractive option, not only in cases where they cannot fund the arbitration themselves. For those parties who find themselves unable to fund the arbitration, or unsure as to whether they will be able to in cases where the budget cannot be predicted with much certainty at the outset, there is still a lot to be done to facilitate access to arbitral justice. Third party funders play a role there and if only for that reason, their services should be better known and made more accessible to non-experts.

The political climate toward arbitration is not supportive to say the least, especially in EU circles. There has not been any public attention drawn to arbitration lately but it is inevitable that some attention will be given to it now and again. We must be able to convince the general public and political circles that investment arbitration is the only workable system for investor-state disputes. I am personally very doubtful about attempts to set up a permanent body to hear such disputes. How will the judges be appointed? What profile will they have? I would be very surprised if they could match the quality of the vast majority of international arbitrators hearing these cases.

What advice would you give to someone starting out in arbitration?

Be a good lawyer. Be nice, and pleasant to work with. Both are equally important to be successful in this field (and in many others, I suspect!).

What further steps can be taken to ensure that arbitration professionals are more comfortable using arbitration hosting platforms and other technology increasingly used in the space? Practice makes perfect! We all had to learn to use new tools when the pandemic

Peers and clients say: “He is simply the best” “A leading arbitration practitioner in France” “He is an excellent academic and arbitrator”

whoswholegal.com/thought-leaders

145

Isabelle Michou

Quinn Emanuel Urquhart & Sullivan, LLP Paris www.quinnemanuel.com

isabellemichou@quinnemanuel.com Tel: +33 6 79 89 45 42

Biography Isabelle Michou is a partner at Quinn Emanuel Urquhart & Sullivan in Paris. She is Canadian and French, and is dual-qualified in France and in England. Her practice focuses on commercial and investor-state arbitration under all major arbitration rules, and covers a broad range of sectors including telecoms, energy, mining, aeronautic, defence, large-infrastructure projects and hotel management. She has extensive experience as counsel acting for both corporations and states, and also regularly sits as arbitrator.

146

Arbitrators & Counsel

What first inspired you to pursue a legal career in arbitration?

What first inspired me to pursue a career in this field was the ability to work as counsel in an international environment, involving a high dose of comparative and international law, and the possibility of doing advocacy in international proceedings. Advocacy in international arbitration covers all aspects of a dispute, from finding the best case strategy for the client, establishing the facts, the law, but also finding the best procedural strategy which may not be limited to just one set of proceedings, but may involve several proceedings in parallel, requiring you as counsel to have the big picture as well as an in-depth knowledge of every detail of the dispute, to the oral argument at a hearing and the examination of witnesses and experts. Being part of such an international bar is what I find, still today, the most exciting part of a career in arbitration.

What qualities make for a successful international arbitrator?

What makes an arbitrator successful is a combination of several qualities. First and foremost, an arbitrator must be a lawyer. In my experience, a non-lawyer makes a very bad arbitrator, not least because he or she is unable to resolve a dispute in law. But it’s not enough to be a lawyer, he or she must be a good one with an ability to understand the facts and as may be appropriate the relevant industry sector and apply the applicable law to the facts. Second, an arbitrator must have sufficient international arbitration experience. An arbitrator who has no clue as to arbitral practices and ethics is generally a bad arbitrator. Third, an arbitrator must also know how to handle procedural matters and have a minimum level of general organisation and competency as to the conduct of an arbitration. An arbitrator must always pay attention to the details and should also always remain measured in the tone he or she employs towards the parties and clearly avoid any

tone that lends itself to a perception of bias. Fourth, an arbitrator must be prepared before each hearing, whether procedural or evidentiary. Fifth, an arbitrator should draft his or her award in a clear and structured way. Last but not least, in a system that is based on party-appointment, an arbitrator needs to be connected to the international community. If nobody knows that you are a good arbitrator, it is difficult to get further arbitral appointments.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree? Independence (and impartiality) of an arbitrator is one of the overarching principles that underly the integrity and legitimacy of international arbitration. There are still arbitrators (albeit rare fortunately) who do not understand what it means and have no clue about arbitral practices and ethics. Disclosure goes to what an arbitrator should disclose to the parties. In doubt, an arbitrator should rather disclose than not. Once a circumstance is disclosed, it is then for the parties to decide what to do with the arbitrator’s disclosure. However, the mere failure to disclose is not as such a ground of lack of independence (except in rare cases). There is always a requirement on the party alleging lack of independence to establish that there is, in the eyes of the parties, a lack of independence or justifiable doubts as to the independence of the arbitrator. I don’t think the standards of independence and disclosure are opaque and restrictive, but they are overlapping and often rooted in multiple legal sources (national arbitral law, arbitration rules, soft law such as the IBA guidelines and even practice notes of arbitral institutions). In addition, arbitral institutions and national courts are not always consistent in their practice or case law. This does not help with clarity in an area where the rules should be clear and applied in a consistent way.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?

A point of clarification first. Whether the hearing takes place virtually or in person has no bearing on the seat of arbitration. The arbitration will still be governed by the law of the seat. By contrast, the question of where the arbitrator is based is different. The fact that hearings are virtual may influence the choice of an arbitrator as they do not involve any travel or hotel costs. They can be organised regardless of where the arbitrator is based. The pandemic has shown that lawyers (and thus arbitrators) can remain very effective in international arbitration while barely having human contact beyond the faces they see on a computer screen. However, there are some limits. One is time zones. Working from different time zones can prove challenging, if not ineffective. Two, it would be a mistake to expect that all hearings on a case will necessarily be virtual. Unless the parties have agreed in advance in their arbitration clause or at the initiation of a case that all hearings will be virtual (which is not advisable), virtual hearings are only a possibility, they are not mandatory. An arbitral tribunal will decide it on a case-by-case basis depending on the specific circumstances and in consultation with the parties. Three, evidentiary hearings for the examination of witnesses and experts, in particular if they last for more than two days, are often more effective in person. Parties are advised not to rule out this possibility permanently on any case.

How does guest lecturing enhance your practice?

Delivering a guest lecture is a great opportunity to pause and reflect on a discrete legal point or a point of arbitral practice, aside from the day-to-day work on cases, and present the main takeaways or lessons learnt in a more scientific way based on personal and first-hand real experience. It is a rewarding way of enhancing one’s own practice.

Peers and clients say: “She is a brilliant arbitration lawyer” “Isabelle is a very highly regarded counsel”

whoswholegal.com/thought-leaders

147

Loukas Mistelis

Clyde & Co LLP | Queen Mary University of London London www.clydeco.com

loukas.mistelis@clydeco.com Tel: +44 7701 377 419

Biography Professor Loukas Mistelis is an international arbitration partner with Clyde & Co LLP and the Clive Schmitthoff Professor of Transnational Commercial Law and Arbitration at Queen Mary University of London. Loukas is an acknowledged authority on international dispute resolution and investment treaty law. Since 2007 he has been listed in Who’s Who Legal’s Commercial Arbitration and since 2017 as a Global Thought Leader. He regularly sits as an arbitrator and acts as counsel and expert in arbitration proceedings. His substantial experience covers ad hoc, GCC, ICC, ICSID, LCIA, PCA, SCC, Swiss Chambers and Moscow cases and also emergency arbitrator under ICC Rules.

148

Arbitrators & Counsel

What qualities make for an effective arbitrator?

Arbitrators are hired to make decisions and most modern arbitration laws and rules have provided for a duty of efficiency. An effective arbitrator is primarily a good listener and good communicator who is also prepared to make decisions. It is critical to hear the parties and your co-arbitrators and adapt to their needs and wants. At the same time, it is essential to be decisive and prepared not to “sit on the fence”. In my view, effective arbitrators should care equally for the law and the facts and be prepared to challenge their own biases based on their own legal training and experience. Ultimately parties also appreciate efficiency.

Indeed, arbitrators in the past have been primarily generalists with some notable exceptions (maritime, insurance, construction). We see increasingly more specialist arbitrators with some of them in rather niche or novel areas such as fintech, life sciences, energy transition etc. It is essential that arbitrators, irrespective of subject areas, are good proceduralists and internationalists. Provided that they have a good understanding of conflicts of laws and excellent knowledge of procedure, specialisation is overall good. At the very least, it promotes arbitration in new areas of financial activity and in some respects also reduces reliance on expert opinions.

hand it is expected that tribunals are more predictable and comply with the norm and often actual arbitration users and their general counsel would opt for predictability while their outside counsel would prefer adaptability. It is critical that tribunals and parties work together and there is a learning curve on both sides. It is also important to be open-minded and prepared to reconsider the way we do things. One should embrace rather than be afraid of change.

Some practitioners report that, post pandemic, arbitration costs are deterring parties from bringing matters. Is this your experience?

I have not experienced any decline in the number of cases being initiated. I have noticed, however, that arbitration users (the actual parties) have become more costconscious given that during the pandemic travel and accommodation expenses have been reduced significantly. As more and more arbitrators embrace efficiency, cost awareness is a natural consequence for counsel. I have seen, for example, in-house lawyers no longer being prepared to pay for bigger teams and sometimes are not prepared to pay for paralegals or junior associates and expect firms to absorb such expenses. Cost-reduction will indeed be the next big inevitable discussion in arbitration. However, if it is not done properly it will impact on diversity and the ability of junior lawyers to access hearings. Hence, law firms will have to consider how they structure their teams and insure an inclusive and diverse team, even if this comes with an added cost.

In your experience, what advanIn what ways have you noticed tages can clients benefit from tribunals becoming more in hiring a multilingual and/or sophisticated and entertaining multicultural arbitrator? a greater variety of techniques I am perhaps a bit biased on this topic as I in proceedings? am multilingual and multicultural myself. Sophistication is one word to describe the variety of techniques deployed, flexibility or adaptability is another. What I have noticed is a tension: on the one hand tribunals are more responsive to parties’ needs and procedural innovations and on the other

whoswholegal.com/thought-leaders

There is no doubt that exposure and indeed immersion in other languages and cultures is extremely beneficial: the baselines shift, there is not one normal or acceptable conduct and one becomes a better listener and is prepared to understand why

149

someone says something rather than just listen to what someone says. Especially in matters where business conduct or language is critical multilingualism and multiculturalism would produce better results for disputing parties. This is particularly relevant when there are difficult ethical standards expectations – one does not have to change his/her own but may better understand the points of departure for the parties.

Where, in your opinion, does the future of arbitration lie?

I have been educating and training young arbitration lawyers for more than 20 years and I know that the future is bright. The younger generation has a solid knowledge of arbitration and are the best ambassadors where arbitration is not yet fully developed: this refers to both geography and subject matters. The growth of arbitration

in Latin America, in Asia and Africa was down to this younger generation and it is also the younger generation, which has taken an open-minded approach to new areas of arbitration, from IP and tax to fintech and cybersecurity. I also see the creation of new arbitration centres with great potential in Africa, Asia and Latin America and how arbitration has started influencing litigation practices. Hence, there is no doubt that arbitration is slowly moving to new hubs while the more traditional seats retain a very strong position. We have a duty to support these new seats and initiatives.

Looking back over your career, what has been your proudest achievement?

me (and I am delighted to call them my mentors) were all involved in arbitration. So as the first lawyer in my family I am proud to be where I am, to be active in arbitration and recognised as a global leader. It is not a matter of where I am but how long I have travelled! Against this background, I am also proud to have taught and mentored so many bright students (arguably more than 3000), many of whom I can now call my peers.

What is the best piece of advice you’ve ever received? Impatience is an indication of youth and there is no substitute for common sense – both incredibly pertinent for arbitration lawyers

I am proud to be where I am. I had not taken arbitration as a course in law school but the three professors who most inspired

Peers and clients say: “Loukas is a shining light in the arbitration market” “He is a mine of information” “He is a very well-regarded academic and arbitrator” “Loukas is one of the stars in arbitration” 150

Arbitrators & Counsel

Global Banking Regulation Review (GBRR) is the trusted source of worldwide news, analysis and data on global wholesale banking regulation. It keeps you up to speed on the latest reforms in compliance, conduct and prudential regulation affecting the world’s largest banks, helping you advise and operate successfully. Know more Keep informed with the latest news, research and opinion, so you can stay connected, advise with confidence and compete effectively. Find the edge Connect and collaborate with your peer group, clients and colleagues. Get the full cross-border view from leaders in the field, to help you identify opportunities and research your position. Lead the market Understand the trends and harness the data sets, tools and insight you need to guide strategy, streamline decision-making, and keep your practice in front.

Find out more: SUBSCRIPTIONS@GLOBALBANKINGREGULATIONREVIEW.COM

globalbankingregulationreview.com lbresearch.com

James Morrison

Peter & Kim

Sydney www.peterandkim.com jamesmorrison@peterandkim.com Tel: +61268339907

Biography I am a specialist in international arbitration, acting as arbitrator and counsel, with extensive experience working in arbitral institutions. As an Australianqualified lawyer, I have worked with leading international firms, representing some of the world’s largest companies in a variety of complex, high-stakes commercial and investor-state disputes. I formerly was counsel at the ICC International Court of Arbitration in Paris and counsel at the Australian Centre for International Commercial Arbitration in Sydney.

152

Arbitrators & Counsel

What did you find most chal- What are the advantages of havlenging about becoming an ing diverse geographical and arbitrator? sector experience? What benLearning to back myself. Being one of the efits do they deliver to clients? youngest people in the room for my first appointment as a sole arbitrator was a big deal at the time. But taking a deep breath and drawing on years of observing arbitrators at work helped me rise to the occasion with the confidence that I could do a good job even without grey hair.

How do you effectively prepare for a hearing as arbitrator?

Read. Re-read. And re-read again. Before the hearing, I draft summaries of the procedural background and the parties’ positions and evidence for later modification as necessary and adaption into the award. I like having the issues, references and documents ordered and mind-mapped before hearing the detailed argument. I prepare questions and issues for possible discussion with co-arbitrators and the parties during the hearing.

How have your previous experiences as counsel at the ICC and at the ACICA enhanced your work as an arbitrator today?

Administering a high volume of unique cases from all around the world has enabled me to experience the wonderful but also the wild in international arbitration. Seeing the dos and don’ts of both counsel and arbitrator work from inside different institutions has benefited and enhanced my work as an arbitrator considerably, particularly in terms of navigating complex procedural issues and award drafting.

Diverse experience translates into “arbitration reach” for our clients. The breadth of our matters means that we can run cases with real experience relevant to the places, people and problems that often emerge in our clients’ disputes. Arbitration reach extends beyond the substantive to also include a concrete network, which gives us knowledge of the arbitrators, lawyers and experts criss-crossing time zones and industries.

What difficulties do fixed-fee structures present for arbitration experts?

Fixed fees for experts can increase certainty and flexibility for parties around costs. However, they are usually agreed at an early stage in the proceedings. The true scope of work needed to assist the tribunal or the issues raised by the other side’s expert may only emerge later in a case. This can make it difficult to estimate fee caps. Also, internal budgetary restraints and external fee competitiveness may lead to a race to the bottom between experts to undercut on fixed fees. This might raise questions about an expert’s ability to discharge their duties to arbitrators to present her or his opinion fully and without appearance of bias. The focus could become securing an expert at the lowest cost to the detriment of the quality of the opinion. Ordinarily, however, these difficulties can be overcome by experienced experts and legal counsel.

In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation?

Technology and pandemic disruption are making arbitration (only slightly) greener. Less paper and more hyperlinked bundles on smart devices mean more trees and less aeroplane contrails spiriting sometimes little read but almost always bulky files around the world. More people attending hearings from kitchen tables, dressed formally up top but pyjama bottoms down below. But there is still so much more work to be done and clients are key to making arbitration greener. They need to have confidence in and insist upon the use of new procedural technology in appropriate cases.

How does Peter & Kim dist i n g u i s h i t s e l f f ro m t h e competition?

Peter & Kim is: Nimble. Flexible. Adaptable. Creative. Cross-cultural. We count some of the world’s leading arbitrators among us but also a growing team of brilliant, dedicated and diverse young lawyers. We bridge common and civil laws and so can effectively persuade tribunals who also straddle them.

What advice would you give to someone starting out in arbitration?

Back yourself. Be direct in reaching out to established arbitration practitioners. Cultivate mentors. Publish (publish and publish again). Make and maintain networks and friendships. And most of all: enjoy yourself!

Peers and clients say: “James is a brilliant advocate” “He is incredibly sharp on legal issues”

whoswholegal.com/thought-leaders

153

Alexis Mourre

MGC Arbitration

Paris www.mgc-arbitration.com amourre@mgc-arbitration.com Tel: +33 6 13 21 37 36

Biography Alexis Mourre is an independent arbitrator and founding partner of Mourre Gutiérrez Chessa Arbitration. He has been the president of the ICC International Court of Arbitration from 1 July 2015 to 30 June 2021. He was vice-president of the Court (2009 to 2015), vice-president of the ICC Institute of World Business Law (2011 to 2015), co-chair of the IBA Arbitration Committee (2012– 2013), LCIA court member (2012– 2015), and council member of the Milan International Chamber of Arbitration (2006–2014). Alexis has served in more than 270 international arbitrations, both ad hoc and before most international arbitral institutions. He is fluent in French, English, Italian and Spanish, and has a working knowledge of Portuguese.

154

Arbitrators & Counsel

Name one of your most memorable cases.

I would mention my very first investment case, in which I was acting as president appointed by the ICC. The investor had been involved in a long-running dispute before domestic courts, all the way to the Supreme Court, and was complaining of multiple breaches of due process as well as a lack of independence and impartiality of the local judges. We reviewed the entirety of the judicial record and ended up rejecting the allegations. I found it fascinating to scrutinise the decisions made by the local judiciary at its highest level from the perspective of international law.

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

I would say essentially in two ways. On the one hand, there is now much more awareness of the importance of ethics and transparency in arbitration. For example, it is now unthinkable for an arbitrator to entertain ex parte contacts with counsel in the course of the arbitration about the case, which perhaps was not always the case 20 years ago. The culture of conflicts disclosures has also significantly advanced, with much more willingness to disclose conflicts, even beyond what is required by the IBA guidelines. Institutions like the ICC have taken the lead in encouraging more transparency in the disclosures of conflicts, and the change in the past 10 years has really been noticeable. On the other hand, we have certainly witnessed, in the past 20 or 25 years, an increase of the adversarial-ness of proceedings, with more incidents, more objections, and perhaps less cooperation between the parties. In that context, robust institutions and sound regulation is needed more than ever.

How does your work as an author and lecturer on international commercial and investment arbitration enhance your practice?

Writing and teaching is a highly necessary opportunity to step back from the daily work on cases and reflect in a different manner on theory and general principles, including of a philosophical nature. The

whoswholegal.com/thought-leaders

confrontation with students also allows us to confront our ideas, and our at times deeply-entrenched conceptions, with the refreshing perspective of excellent and often passionate young people, which is invaluable. I always teach at Sciences Po and Paris II with immense pleasure.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree? Establishing a proper standard for the full disclosure of conflicts by arbitrators is perhaps the most important question faced by the arbitration community at present. As shown by the recent Supreme Court decision in Halliburton, there are still divergent conceptions as to what that standard should be. Halliburton adopts an objective standard in the eyes of a fair-minded and informed observer, which is arguably also the Model-law standard, while the IBA guidelines and the ICC rules adopt a subjective standard “in the eyes of the parties”. The subjective standard, because it prevents the arbitrator from casting his own objective judgment on what should be disclosed, is more demanding than the objective standard and is therefore more in line with the users’ legitimate expectation that any circumstance that may be problematic from their perspective be disclosed. I therefore believe that the subjective standard should be generally adopted. The fact that the ICSID-UNCITRAL draft code of ethics has embraced the subjective standard for disclosures is from that perspective very encouraging. It is to be hoped that once the code is adopted, the UNICTRAL rules will be amended accordingly.

How do you anticipate your arbitration practice to develop over the next two years?

I am blessed to be surrounded in my new firm MGC Arbitration by a group of outstanding and enthusiastic practitioners. I look forward to the growth of the firm and to continuing my arbitrator practice.

How is increased scrutiny towards social and environmental w elfare affecting investment-treaty arbitrations? We are living a deepening climate and

155

environmental crisis which arbitration, and investment arbitration in particular, cannot afford to ignore. The growing importance of the environmental obligations bearing on investors, as well as all the aspects of the profound changes that the energy market is undergoing, both for oil, gas and electricity, will of course have significant consequences on the investment protection landscape.

How are AI and technological developments affecting the analyses you conduct? How do you anticipate it will affect analyses moving forward? Technology facilitates the arbitrator’s work in multiple ways. The use of electronic submissions, of hyperlinks, of joint

electronic bundles, as well as the use of interactive damages models allowing the tribunal to adjust input variables, has already completely changed the way in which we interact with the parties, the experts, and prepare our awards. There is now much more ability to work remotely from any place in the world, thus allowing us to advance the preparation of an award in a much quicker and more dynamic manner. The use of virtual site visits, including by using drones, will become more and more frequent. And technology is also allowing the disclosure of large quantities of electronic data without excessively burdening the work of the tribunal or delaying the process.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?

Most reputable seats admit that the arbitration can be conducted in all or part virtually, so I do not expect it to change the parties’ decision in that respect. It is however good practice to include in the terms of reference or terms of appointment that the tribunal has the power to hold any hearing remotely, even in absence of an agreement by all parties.

Peers and clients say:”He is outstanding in every aspect” “His contribution to arbitration is unique” “He is a leading practitioner and arbitrator in France, who has implemented some significant changes during his term as president of the ICC Court” “He is very active and one of the leaders in arbitration” 156

Arbitrators & Counsel

DISCOVER MORE AND REGISTER YOUR INTEREST AT

WHOSWHOLEGAL.COM/ANALYTICS

whoswholegal.com lbresearch.com

Ziad Obeid

Obeid & Partners

Beirut, Dubai and Paris www.obeidpartners.com ziad@obeidpartners.com Tel: +961 1 363 790

Biography Ziad Obeid is a partner at Obeid & Partners. A French-Lebanese international arbitrator and counsel, Ziad has been identified among the world’s foremost dispute resolution practitioners. A specialist in Middle Eastern legislation, and a dual-qualified dispute resolution lawyer with a civil engineering background, Ziad has extensive cross-border experience of complex disputes and arbitrations across various industries, including cases brought under bilateral investment treaties conducted in Arabic, French and English.

158

Arbitrators & Counsel

How does your breadth of legal How integr al is cultur al training, as well as your engi- awareness and sensitivity in neering background, enhance international arbitration? your arbitration practice? As counsel in an international arbitration, Having a civil engineering background is a powerful asset, particularly in the context of construction disputes. Essentially, it allows me to rapidly apprehend the factual technicalities in a given case and get a sense of where the “real issues” lie. Being able to rely on my technical understanding while acting as counsel has been of particular use in assessing my clients’ needs, establishing a case strategy, working with experts and presenting complex technical matters in a way that is easily digestible for tribunals. When acting as arbitrator, my engineering background allows me to quickly grasp the issues at hand, and manage the proceedings in a cost-conscious and streamlined manner.

cultural awareness and sensitivity can inform how to present a case before a given tribunal. From an arbitrator’s perspective, I believe that having culturally informed tribunal members inspires confidence and can assist the tribunal in taking tangible steps to enhance the prospects of enforcement of arbitral awards by national courts. Construction disputes, more specifically, involve multiple stakeholders (eg, project owners, contractors, subcontractors, insurers, funders) from a wide range of backgrounds and legal traditions. Cultural awareness and sensitivity is crucial when interacting with these different actors in international arbitration.

In the Middle East, parties recurrently enter into contracts with common law-inspired provisions that are actually intended to operate within civil law-based legal systems. In this context, a number of legal concepts are relevant (if not crucial) when dealing with disputes in the MENA region, including, inter alia, good faith, implied terms, abuse of rights, force majeure, the theory of exceptional circumstances and the principle of estoppel. Shariah law can also influence how contracts are interpreted and applied in certain jurisdictions, by providing a framework of key principles that, if not respected, can affect the enforceability of certain contractual provisions. In interpreting such contracts, it is therefore not only imperative to ascertain the intent of the parties, but also to comprehend the implications of the parties’ choice of law and how this affects the way the contract will apply in relation to certain disputed issues.

lot by attempting to prevent disputes by addressing their differences in the course of the project through frank and open communications, partnering or dispute boards. Parties should also consider mediation prior to resorting to more expensive and timely mechanisms such as arbitration. Even if the parties are not able to avoid a dispute, this approach should help them frame the issues which find their way to a tribunal. Second, construction disputes can be streamlined through the involvement of experienced counsel and arbitrators, using the benefit of their experience to adjust existing procedures to suit the specific needs of a case, and assist with the early identification of key issues for the resolution of the dispute.

In your opinion, how can conHow does the interplay between struction dispute processes common, civil and shariah be streamlined? law affect how contracts are In my opinion, construction disputes could interpreted and applied in be streamlined in two principal ways. arbitrations? First, I think that parties would gain a

How does your practice distinguish itself from its competitors? For over three decades our firm has helped businesses optimise opportunities,

mitigate risk and manage complex disputes in the MENA region. We see ourselves as the gateway to the MENA region; we have, in our team, experts on Middle Eastern legislation and specialist arbitration practitioners who are able to blend international best practices with unmatched regional know-how, coupled with an ability to work across multiple languages relevant to a single case.

What is the most memorable arbitration you have been a part of?

Each arbitration case in which I have acted as a counsel, sole arbitrator, chairperson or co-arbitrator has been particularly rewarding in its own way. Cases vary in their complexity and cover a wide range of areas; they have all uniquely contributed towards expanding my knowledge and expertise. My interactions with parties from various cultural and legal backgrounds has been particularly valuable. This interplay continues to interest me, and helps me continually refine my approach and adapt my practice of international arbitration.

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

One of my long-term goals is to empower emerging arbitration practitioners in developing countries. While there is still much to be done, I have taken an active role in promoting these initiatives in the Middle East through my work with the CIArb, as chairman of its Lebanese branch.

What is the best piece of career advice you have received?

The best advice I have received was to never stop learning and adapting. In a continually evolving legal landscape, with new technology and major events constantly changing the way we do things, this advice has served me well throughout my career.

Peers and clients say: “Ziad is an outstanding arbitration specialist” “He is very well known in the construction disputes space” “He is a strong arbitration practitioner” whoswholegal.com/thought-leaders

159

Colin Ong QC

Dr Colin Ong Legal Services Bandar Seri Begawan www.36group.co.uk

contacts@onglegal.com Tel: +6732 420913

Biography Handled over 370 arbitrations as counsel and arbitrator including AAA/BANI/CIETAC/HKIAC/ICC/ K L R C A / LC I A / L M A A / M N A C / PCA/LMAA/LCIA/MNAC/OIC/ SCMA/ SIAC/VIAC/WIPO. Civil law professor. Ranked top-30 global arbitration practitioner by Expert Guides: Best-of-the-Best (2017–2021). 1st ASEAN national practitioner appointed Queen’s Counsel and elected Bencher (Inner Temple). Two publications listed End-note1 in CIArb Practice Guidelines. Chambers and Partners 18 Most-in-Demand Arbitrators (Asia-Pacific).

160

Arbitrators & Counsel

As an English silk and a civil law disputes specialist in Asia, how do you see the global growth of arbitration affecting your practice?

The majority of my recent arbitration cases have been civil law-based and Asian-based. This continued shift of cases towards Asian seats helps my practice as most of the Asian countries are civil law jurisdictions. The natural ability to think from a civil law perspective coupled with the advocacy skills of an English silk has served me well.

What qualities make a successful arbitrator in today’s environment?

to lead to possible conflicts of interest involving parties, counsel and arbitrators. Additional transparency is important for the legitimacy of international arbitration as well as for the assured enforceability of arbitral awards.

As an advocate, I am able to predict how the tribunal is likely to see the situation and I am better at dealing with the crux of the case and not wasting time on any bad behaviour by opposing counsel.

is unfairness in the parties’ arbitration agreement.

I disagree. There are actually a lot of good arbitrators around especially in Asia. The problem lies in a lack of attention being given to ethnic, geographic and cultural diversity. While the Pledge has done much to assist younger female arbitrators, especially in Asia, there is no equivalent being done to assist Asian arbitrators. Until and unless this is addressed, one will see the lack of appointment of experienced male Asian arbitrators and a continued increase of the appointment of less experienced younger female arbitrators in Asia. Some balance will need to be achieved soon.

The current arbitration market How have the new ICC rules is reportedly working with a impacted commercial arbitra- small pool of arbitrators, and tion practices? it is becoming increasingly difThe new ICC rules remind parties of the ficult to find arbitrators who do importance of a carefully drafted arbi- not have a conflict of interest. tration agreement. The new Article 12(9) Do you agree, and if so, how gives the ICC Court the power to appoint can this issue be effectively all members of the tribunal when there addressed?

One should ideally have at least 15 years of experience as counsel in arbitration or litigation in order to have adequate experience to make the right judgments in applications made by experienced counsel. One needs to reply to all emails to parties or co-arbitrators within the same day if one is presiding arbitrator. Patience and a good understanding towards the genuine difficulties of counsel are also important qualities.

Given your ample experience handling cases under civil law, what particular challenges do younger arbitrators have to be mindful of when undertaking their first case under civil law?

How do you juggle leading teams in multiple jurisdictions You have deep experience as as lead counsel and sitting both counsel and arbitrator. in arbitrations across many How does your experience in seats? each capacity enhance your I am very disciplined and focused on my capabilities in the other? work. I am also able to multi-task. The

Much attention is paid by parties and courts to the integrity and fairness of the arbitration procedure in cases where there are third-party funders (TPFs). Allegations of TPFs lack of transparency is often said

It is the same advice for any aspiring arbitrator. Invest one or two decades as counsel to gain practice experience. The best arbitrators are those who have sufficient experience as counsel. They are more balanced in dealing with practical situations.

My many experiences in both capacities have made me a more patient and rounded practitioner. My experiences as counsel allows me to understand the challenges of counsel.

only good end-product of suffering from insomnia is that one gets a lot more things done each day.

Peers and clients say: “Colin is a very intuitive and knowledgeable arbitrator” “One of the most highly regarded arbitration practitioners in Asia” “He is extremely well known as arbitrator and counsel” whoswholegal.com/thought-leaders

161

Patrick W Pearsall

Allen & Overy LLP Washington, D.C. www.allenovery.com

patrick.pearsall@allenovery.com Tel: +1 202 683 3863

Biography Patrick has extensive experience representing parties in international disputes. He served in the US State Department for nearly a decade and departed as the chief of investment arbitration. He helped lead the negotiation of the Trans-Pacific Partnership (CPTPP) and the US-China Bilateral Investment Treaty. He is widely recognised as one of the foremost experts on investment protection in the world. Patrick has successfully resolved claims involving billions of dollars and is often called upon to provide strategic counsel to parties on complex commercial and investment matters. He is a professor at Georgetown University.

162

Arbitrators & Counsel

Describe your career to date.

My first mentor, the late professor Hans Smit, insisted that I drop all my plans and go to Paris after law school. For those who were lucky enough to know professor Smit, it will come as no surprise that you could not resist him when he had his mind set. Thus, I started my career at the ICC in Paris. That experience was invaluable. The work was complex and interesting. The community of colleagues was inspiring and generous. I never looked back. From Paris I went to New York for several years and then to Washington DC to join the US State Department. As an attorney for the department I worked on several international disputes, negotiated treaties (on topics from fish to FET), sat as the head of delegation in dozens of international negotiations, and ran a major environmental study and energy infrastructure permitting process that had significant international arbitration-related issues. If you have the opportunity to work in government, do it! Ultimately, I was privileged to serve as the chief of investment arbitration for the United States. Since leaving government my practice has focused on complex international disputes – a mix of commercial arbitration, treaty-based arbitration and pure public international law.

What do you enjoy most about working in arbitration?

Our community. Simply put, our group of colleagues is unique in the world. I don’t know another practice area that can match our sense of community. I appreciate the friends, the collaborators and even occasionally the adversaries in my cases – it is

the people that I have been lucky to meet along the way that are the sustaining joy of my practice.

How has the practice of arbitration evolved since you first began your career? When I first began my career investment arbitration was very much in its infancy. Doing research on a tricky question of arbitral practice meant finding and reading a book. Document review consisted of a room, several dozen boxes, a half-eaten sandwich, chapped fingers, a nervous senior associate looming over you in the hallway and a ride home in a poorly ventilated taxi sometime after midnight. Change is good.

What impact will technological innovation have on the practice of arbitration in the next five to 10 years?

Technology will continue to make us more connected. For the practice of arbitration, we will inevitably be more accessible to one another and our clients. My hope is that innovations in technology will help us work more efficiently and that consequently arbitration will better fulfil its promise of being a user-friendly forum for the pacific resolution of disputes.

healing to do. That said, I have found some aspects of what we did to combat isolation to be helpful in practice. For example, the new normal of videoconferencing instead of phone calls or travel has allowed for more frequent and robust communication with clients and opposing counsel. In certain instances, happily, a productive Zoom call has even led to amicable settlement.

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

My goals in the short term are modest. Over the next few years, I want to do my part to be of use to the community as we rebuild our practices in the post-pandemic era. I want to be helpful to the various reform efforts underway in commercial and investment treaty arbitration and I want to make sure we don’t squander a real opportunity for innovation. Looking forward, I want to be a leader on diversity and inclusion and I want to leave the field better than I found it. Ultimately, if I end my career as a mentor who made a difference in someone’s life and if so doing I contributed to the development of the field in a meaningful way, that would be the highest achievement I could hope for.

Has covid-19 had an impact on commercial arbitration? Are parties willing to be flexible in procedure and approach to get it over the line?

The coronavirus pandemic has impacted our lives in still untold ways. We have a lot of

Peers and clients say: “We are very impressed by his thorough, diligent and professional manner” “Mr Pearsall is a brilliant and creative lawyer” “Patrick is a stupendously clever and engaging arbitration practitioner” whoswholegal.com/thought-leaders

163

Wolfgang Peter

Peter & Kim Ltd

Geneva www.peterandkim.com wpeter@peterandkim.com Tel: +41 58 317 7070

Biography Wolfgang Peter is a founding partner at Peter & Kim, a global specialist practice in Switzerland, South Korea, Singapore and Australia, dedicated to international commercial and investment arbitration. Dr Peter represents major companies and states as counsel in large and complex international arbitrations. He also regularly serves as an arbitrator in high-stake arbitrations, under the auspices of various global institutions. He has acted, up to April 2022, in over 270 international arbitrations.

164

Arbitrators & Counsel

What qualities make for a successful M&A arbitrator? A background in M&A transactions is obviously helpful, but other than that, experience with financial reporting and accounting would be useful, as well as attention to financial intricacies and shareholder rights.

implemented correctly. However, advanced software for searches comes with its own transactional costs, which means it cannot be economically used in cases that are too ‘small’ (in terms of amount in dispute, it is assumed).

How have the new ICC rules impacted commercial arbitraHow has the role of arbitrator tion practice? changed since you started your The impact of the new rules of 2021 has not career? been fully felt yet, since most of the current The role of an arbitrator is fundamentally still that of a dispute adjudicator, but today an arbitrator is expected to be much more proactive in terms of procedural management (handling witness conferencing for instance or preparing questions for the parties in advance of the hearing) as well as being attuned to issues of environment, human rights and corruption just to name a few of the recurrent themes, which were not on the radar for most arbitrators 20 years ago.

arbitration proceedings use the previous version of the rules. However, I expect that the following changes would have a larger impact – (1) provision for virtual hearings and a shift away from paper filings; (2) amendments to the consolidation provision, and to the joinder provision to allow for joinder after the confirmation or appointment of a tribunal in certain limited circumstances; (3) a requirement that parties disclose certain third-party funding agreements.

What challenges did you face when setting up your own firm?

Having set up a new firm just two years ago, I would think that building a new brand is always a challenge, but of course building efficient teams is always a part of the challenge, especially if the firm is spread throughout continents. This was a different challenge compared to my starting days in arbitration, when international arbitration itself had not yet created its “brand” and one had to convince many parties to opt in for arbitration.

What is the best piece of advice you’ve ever received?

The founding of my new firm in 2020 and my 14 years of entrepreneurial activity in the watch industry were based on the same advice, which I always tried to adhere to: be entrepreneurial and not only identify the opportunities but be bold and seize them.

What difficulties do fixed fee Many arbitral awards are startstructures present for arbitra- ing to end up back in court tion experts? for enforcement proceedFixed fee structures may be of interest to ings. Does arbitration have an the parties to minimise costs, however, enforcement issue, and how this might disincentivise the experts and could this be addressed if so? become potentially counterproductive. One may find better ways of minimising costs, by better identifying strategic goals of the arbitration before launching one, for instance.

Could e-discovery technologies be used in case assessment for smaller cases? What benefits would this bring?

The use of e-discovery could help the parties reduce costs and save time, if

Arbitration fundamentally does not have a problem of enforcement, since it is governed by the New York Convention, which has been remarkably successful and widely ratified around the world. What has changed, however, is the parties’ combativeness against enforcement, by relying, for example, on public policy exceptions (corruption or the intra-EU objection in the BIT arbitration context) that are interpreted differently in different jurisdictions.

Peers and clients say: “Wolfgang is definitely a leading practitioner and arbitrator” “He is a great arbitrator, particularly on financial disputes”

whoswholegal.com/thought-leaders

165

John V H Pierce

Wilmer Cutler Pickering Hale and Dorr LLP New York www.wilmerhale.com

john.pierce@wilmerhale.com Tel: +1 212 230 8829

Biography John V H Pierce is a partner at WilmerHale and head of the firm’s international arbitration practice in the New York office. He represents clients in international arbitration proceedings in venues around the world, under both civil and common law regimes, and sits as an arbitrator in international disputes. Described by Chambers as “a crucial figure in the firm’s global arbitration practice”. John is recognised by clients as “a very polished and accomplished advocate” with an “outstanding legal mind,” and “a great ability to understand and execute complex business objectives”.

166

Arbitrators & Counsel

What do you enjoy most about working in arbitration?

One of the wonderful aspects of practicing in this field is that every new case – whether as counsel or as arbitrator – brings a new set of issues or involves issues that one has seen before in a different context and that must be revisited under the particular circumstances of the matter. In addition, the choice of arbitral seat, the nationalities and legal backgrounds of the parties, counsel and arbitrators, and the arbitral institution overseeing the proceedings (assuming there is one) can all have a significant impact on the way the case is arbitrated. Because of those factors, this is an area of constant evolution: I am always learning, thinking through new sets of problems and coming up with new ways to make the arbitral process work better for my clients or for the parties before me.

What have you learnt from being seated in arbitrations in multiple jurisdictions?

The choice of seat can have many important implications for an arbitration. For example, the choice of seat may impact, among other things: the applicability of the New York Convention, the standards for vacatur of an arbitral award, form requirements and non-arbitrability rules, the nationality, qualifications, and methods of appointment of arbitrators, the procedural conduct of the arbitration and choice of law rules. In addition, because in-person hearings are often, though not always, held at the seat, one learns quickly that the choice of seat may impact the overall convenience of the arbitral process for parties, counsel, witnesses and arbitrators.

What is the greatest challenge currently facing arbitration lawyers in the US?

One of the important challenges that continues to confront international arbitration lawyers in the US is the misperception in some parts of the world that an international arbitration seated in the US under an internationally-accepted set of

institutional rules (such as the ICC, LCIA or ICDR Rules) is nevertheless likely to approximate aspects of a US litigation – for example, with respect to disclosure. The challenge is that this misperception may cause non-US parties to resist seating their international arbitrations in the US for fear of encountering US-style procedures in any proceeding that may arise. US-based counsel and arbitrators have more work to do to make it clear to the global business community that this perception is misplaced. There is a deep bench of arbitration practitioners – particularly in New York, Washington, and Miami – who would ensure as procedurally-neutral and “international” a process as one would see in any other major international arbitration centre, including with respect to disclosure.

How has the arbitration process developed since you first began your career?

One important development I have noticed since I first began my career in international arbitration over 20 years ago is the increasing tendency of international arbitration practitioners to rely on a standard set of practices and procedures in each case rather than embrace the inherent flexibility of arbitration and determine the most appropriate procedures for a particular matter. It is natural, on some level, for practitioners to revert to a standard set of rules and procedures, but it is important to resist the trend toward homogenisation and work toward ensuring that each arbitration is conducted on a bespoke basis and in accordance with the procedures that make the most sense for that particular case.

What steps can younger arbitration practitioners take to What is the best piece of advice improve their chances of get- you’ve ever received? ting appointments? Is there an Early in my career, I served as a law clerk important role to play here for for a judge on the United States Court of more experienced lawyers in Appeals for the Ninth Circuit. That court the field? hears appeals from the US District Courts Getting those first appointments is always difficult because of an inherent catch-22: One generally needs some experience to get arbitral appointments; but one needs arbitral appointments to gain experience. My first appointments came from arbitral institutions, which I think is quite common. Most institutions are open to giving a younger arbitration practitioner without experience as an arbitrator a chance to sit in a relatively low-value case. It is important for young practitioners to get involved in the major arbitral institutions and to ensure that they interact with the people in those institutions responsible for making arbitral appointments. In addition, it is important for young arbitration practitioners to know other practitioners of the same vintage practising at other firms. Very often, it is those colleagues and contacts who will reach out down the road when parties are looking to make appointments.

on the West Coast of the United States, as well as in Alaska and Hawaii. My co-clerks and I would often travel with our judge to different states for a week of hearings and, when we did, we would usually accompany her to dinner with the other judges sitting on the panel that week. I recall distinctly, at one of those dinners, speaking to another judge on the Ninth Circuit about how best to advance in one’s career as a lawyer. This judge was both brilliant and one of the youngest judges on the Court of Appeals. He gave us some career advice that I have never forgotten. The key to getting ahead, he said, was to do the best possible job at whatever it is that you are asked to do. So, he said, if you are young and in a new job, and you are asked to make a pot of coffee, make it the best pot of coffee that anyone has ever tasted. If you bring that same intensity, focus and commitment to excellence to everything you do, there will be no stopping you.

Peers and clients say: “John possesses an excellent reputation as an arbitrator” “I was impressed by his measured approach, intellect and demeanour” whoswholegal.com/thought-leaders

167

Philippe Pinsolle

Quinn Emanuel Urquhart & Sullivan, LLP Geneva www.quinnemanuel.com

philippepinsolle@quinnemanuel.com Tel: +41 22 595 9002

Biography Philippe Pinsolle is the head of Quinn Emanuel Urquhart & Sullivan LLP’s international arbitration in continental Europe, based in Geneva. Having appeared in various capacities in more than 350 arbitrations, Philippe has over 25 years of experience in international arbitration including commercial arbitration, investment treaty arbitration, energy and major infrastructures disputes, under the auspices of virtually all major arbitration institutions. Philippe is the President of the French Arbitration Committee, a former co-chair of the IBA arbitration committee and the co-general editor of GAR Guide on Advocacy.

168

Arbitrators & Counsel

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.

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.

How your position as senior co-chair of the IBA arbitration committee enhanced your practice? Sources report a trend of arbiThe IBA arbitration committee has been tration practitioners being at the forefront of the profession since it involved when contracts are was created. It is a place where ideas are drafted. How does this benefit exchanged, concepts are discussed and parties in a contract? 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

whoswholegal.com/thought-leaders

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

169

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.

What green arbitration trends are currently prevalent in the market?

I see two major trends. First, no-paper arbitration is developing at speed light. 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.

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.

How crucial have you found your knowledge of international law to your success in the What would you like to achieve investment protection sector? Some practitioners have told in your career that you haven’t Investment protection, insofar as it is based us of greater international har- done so already? on treaties (BITs or multi-lateral treaties) monisation between arbitration I want to keep learning. By definition, this as distinct from investment laws, is inter- codes of conduct, particularly target will never be achieved. national law, more specifically the laws for investor-state arbitraof treaties, applied in practice. As such, tion. Is this something you it is nearly impossible to understand the see, and how could it change manner in which international investment arbitration? law is developing without a solid knowledge of international law in general.

Self-regulation works when it is self-regulation, not imposed regulation. The current

Peers and clients say: “Philippe is an excellent arbitrator” “He is the best of his generation in arbitration” “Philippe is a leading practitioner with broad experience in commercial and investment arbitration” 170

Arbitrators & Counsel

Global Competition Review (GCR) is the complete source of news and analysis for competition practitioners. It keeps you up to speed with the issues and trends that matter, giving you the detail, and depth, you need to operate successfully. Know more Stay informed with the latest news, research and opinion, so you can advise with confidence, compete effectively, and minimise enforcement risk. Find the edge Connect and collaborate with your peer group and prospects. Get the full industry view to help you identify opportunities and build your business. Lead the market Understand the trends and harness the data, tools and insight you need to guide strategy, streamline decision-making, and keep your firm at the forefront.

Find out more: SUBSCRIPTIONS@GLOBALCOMPETITIONREVIEW.COM

globalcompetitionreview.com lbresearch.com

Michael Polkinghorne

White & Case

Paris www.whitecase.com mpolkinghorne@whitecase.com Tel: +33 1 5504 5800

Biography Michael Polkinghorne is a dualqualified lawyer who heads the Paris office’s arbitration group. He is joint head of the firm’s energy practice and pro bono leader for the Paris office. He has covered disputes involving over 30 countries, and has significant expertise in foreign direct investment, acting for and against states. In recent years, he has been involved in a number of mediations and served in over two dozen cases as arbitrator, predominantly in the energy sector.

172

Arbitrators & Counsel

What is the most interesting case you have been a part of?

There is no one candidate, although I have a particular soft spot for issues arising under long-term contracts. The work we did in Stockholm arising out of the gas crises of the noughties were great fun.

a less indulgent or more aggressive atmosphere concerning the role of an arbitrator; as seen for example in the increase in challenges to arbitral appointees. I certainly see more arbitral secretaries these days but wonder if they have just come out more into the open…

How do you view your role as an As a dual-qualified lawyer, arbitrator? what would you say are the key My role as arbitrator should not be differences between civil and exaggerated. It is in my mind to find out common law approaches? two things: what was agreed and what happened, with a third perhaps being what to do about it. That being said, I think it is absolutely critical for an arbitrator to ensure that whatever the result, both sides feel they have been listened to and understood, and that they can see how and why you came to the conclusions you did.

How does your experience acting as counsel, arbitrator and expert witness enhance your work in each role when handling energy disputes? I do not think I am unique in terms of relevant experience, but I would like to think that this sector experience saves the parties from having to pay for my education in matters arising in the energy space.

How is the generational shift affecting arbitration proceedings? What do younger arbitrators do differently?

I understand the term generational shift to reflect the fact that practitioners of my (very young) age and generation now find themselves being called upon more frequently to act as arbitrators. I am not sure that there is any major difference in approach between younger and older arbitrators, although the current generation has been brought up in, what I would call,

In my experience, the differences are less fundamental than many assume. The inquiry remains, as I said above, one of finding what was agreed and what happened. It goes without saying that a civil law tribunal may undertake a broader inquiry as to what was agreed but the parties’ written agreement remains paramount. That being said, I do often see what in many respects I view as cultural differences on issues such as document production and some aspects of evidence, although some soft law implements such as the IBA guidelines have in a number of respects levelled the playing field.

What do you enjoy most about your role as head of pro bono at White & Case’s Paris office?

This is the only work I do that creates any enthusiasm whatsoever on the part of my adolescent children.

How would you like to develop your practice in the near future?

I literally have no idea. The aim I think is to stay in the law until the day, heaven forbid, it’s no longer fun. That may sound trite, but I would like to think I would have the presence of mind to call it a day when that time comes.

Peers and clients say: “Michael is as good as they come” “A very able counsel with broad experience” “He is sharp, to the point and a delight to work with” whoswholegal.com/thought-leaders

173

Markus Schifferl

bpv Hügel Rechtsanwälte GmbH Vienna www.bpv-huegel.com

markus.schifferl@bpv-huegel.com Tel: +43 1 260 50206

Biography 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.

174

Arbitrators & Counsel

What qualities make for a suc- How has arbitration changed cessful arbitrator? since you first started practising? 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 decisionmaking 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 utilised by the arbitrator in drafting the arbitral award. This also applies to litigation. Third, it is probably easier to recognise during a hearing what works and what does not work with the arbitral tribunal.

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 semivirtual hearings since the outbreak of the Covid pandemic. I consider this as a good development. Lastly, the increasing standardisation 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 professionalisation 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 longterm 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 globalisation 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.

Peers and clients say: “Markus is an excellent arbitrator and counsel” “He’s very professional and highly experienced” “A go-to name in arbitration” whoswholegal.com/thought-leaders

175

Christoph Schreuer

Zeiler Floyd Zadkovich Vienna www.zeilerfloydzad.com

christoph.schreuer@zeilerfloydzad.com Tel: +43 676 626 3239

Biography Christoph Schreuer is of counsel with Zeiler Floyd Zadkovich and a graduate of the universities of Vienna, Cambridge and Yale. He is a former professor at Johns Hopkins University and University of Vienna, a member of the ICSID Panel of Arbitrators and an arbitrator in ICSID and UNCITRAL cases. The author of numerous publications in international investment law, he is currently awaiting the publication of the third edition of his commentary on the ICSID Convention.

176

Arbitrators & Counsel

What attracted you to a career in international arbitration?

Nothing in particular, it was never planned. It just happened.

What has been the most memorable moment of your career so far?

I am still waiting for it. I have been fortunate to have had many great highlights throughout my career, many memorable moments, but still keep my eyes peeled for what’s yet to come.

How important is it for senior practitioners to assist and mentor young arbitrators and counsel to further their careers?

Very important. We all have had meaningful mentors over the course of our professional development and advancement in the field. It is how this industry works and what is expected in this field. It is therefore imperative that we pass on to future generations the guidance we received, and provide them with our lessons learned and the insights we’ve gained.

What do you believe are the What has been the best piece most important issues for cli- of career advice you have ever ents to consider when entering received? into an arbitration? To write a commentary on the ICSID A rational cost/benefit analysis.

Convention.

How has the market changed since you first started practising?

How does Zeiler Floyd Zadkovich distinguish itself from the competition?

The market has changed a fair bit since I first started practising. I would sum up the various changes and the evolution the field has seen and say that in today’s market there is more competition, more contentiousness and less civility.

All of the lawyers at our firm have a true passion for problem-solving. We treat our clients’ matters with a hands-on approach, with full partner involvement and constant personal commitment. The firm focuses on specific practice areas, arbitration being a

major one, along with litigation, employment and industry sector focuses including shipping, energy, transport, construction and much more, and work in fully integrated and collaborative international teams, tailored to each specific matter. Many of the firm’s clients conduct business regularly on an international level. This often requires legal expertise that goes beyond a single jurisdiction. After years of collaboration of our team members with colleagues in the US and the UK, in September 2020 we have decided to take the next step forward, and merge to form one global team, under the new name Zeiler Floyd Zadkovich. The firm now has offices in Vienna, New York, London, Chicago, Sydney and Houston, which allows us to advise our clients in integrated crossjurisdictional teams. Many of our lawyers are admitted to practise law in more than one jurisdiction, which adds to the firm’s international and collaborative capabilities and capacities. Our firm’s innovative structure enables us to assist our clients on a global scale in a variety of business sectors.

Peers and clients say: “I highly recommend Christoph” “He is the go-to Austrian investor-state arbitration expert”

whoswholegal.com/thought-leaders

177

Eric Schwartz

Schwartz Arbitration

New York www.schwartzarbitration.com eschwartz@schwartzarbitration.com Tel: +1 646 478 7045

Biography Eric Schwartz is an American and French international arbitration lawyer. Based in New York, he practises independently as an arbitrator and as an arbitrator member of Fountain Court Chambers in London. Eric was formerly a partner of King & Spalding in Paris and New York and earlier in his career was a Paris-based partner of Freshfields. From 1992–1996 he served as secretary general of the ICC International Court of Arbitration, of which he was a vicepresident from 2012–2015. After practising in Paris, with a brief stint in Brussels, for 34 years, he moved to New York in 2012.

178

Arbitrators & Counsel

What inspired you to pursue a legal career?

There were no lawyers in my family. My father was a professor of French literature, and I imagined myself following in his footsteps. But then as an impressionable 10-year old, I saw the movie Inherit the Wind with the famous American actor Spencer Tracy playing a character based on Clarence Darrow, a famous American lawyer during the first decades of the 20th century, and my interest was piqued. I felt drawn to advocacy and originally thought of myself as a future criminal defence or civil rights lawyer, including during my years in law school, but life ultimately took me to Paris, and, by serendipity, my legal career took a different and unexpected turn.

is that, like everyone else, tribunals have been required to become much more technologically savvy than they once were and to think about how technology can more effectively be deployed at every stage of the proceedings, while at the same time becoming fluent in the language of cybersecurity. Second, in increasing the frequency of case management conferences during the proceedings to try to reduce or resolve differences between the parties in respect of such matters as document production or other procedural applications. Third, in the management of expert witnesses, with the aspirational aim of ensuring that their evidence will be of as much assistance to the tribunal as possible and that the experts will be working from common sets of assumptions and data.

More and more practitioners are leaving firms to set up their own arbitration boutiques. What are the main drivers for this in your experience?

Arbitrations have been becoming increasingly paperless for a long time now, and only recently we are even seeing hard copy originals of awards gradually being replaced by electronic “originals”, with the parties’ agreement and subject to mandatory laws to the contrary. Of course, during covid-19 times, the virtual hearing became commonplace, and I am among those who consider the conduct of virtual or at least hybrid hearings to be a very positive, green and cost-effective development, with the management of time zone differences usually being the biggest issue (except possibly where certain participants do not have access to the necessary technical infrastructure, which can be an even bigger issue). Although parties appear to prefer in-person hearings whenever they have a choice, I believe that, over time, this is likely to change. Virtual hearing technology (and advocacy) will only get better and better, and, in my view, the much-vaunted advantage of being able to “read a room” when meeting in person is overstated, at least in most cases.

opment is constrained by the amount of work that I can take on. As those who sit with me know, I do not generally use an administrative secretary, so that will limit how much I can do.

There may be several factors, but typically two main ones: (i) the avoidance or reduction of conflicts of interest; and (ii) the desire of many of these practitioners to be able to sit more frequently (or possibly even exclusively) as arbitrators, an activity that many firms (especially the larger ones) discourage because it is less lucrative than counsel work, which permits teams of lawyers to be deployed, while it creates potential conflicts for the rest of the firm.

As an independent practitioner, what are your main priorities What did you find most challengfor Schwartz Arbitration’s ing about becoming an arbitrator? development over the next couMoving from advocating as counsel on What green arbitration trends ple of years? behalf of a party to having to decide as an are currently prevalent in the My practice is devoted exclusively to my arbitrator between two well-argued posi- market? personal work as an arbitrator, so its develtions initially felt like the greatest challenge. Without wishing to understate in any way the nature and extent of that challenge, and the weight of the responsibility that the parties have conferred on the arbitrator to “get it right”, as time goes on, I often think, particularly in very contentious cases where the parties have wildly differing views about how an arbitration should be conducted, that the greater challenge may arise out of the demands placed on an arbitrator to manage cases effectively and efficiently and in a manner that will retain the parties’ trust in the fairness and efficacy of the process.

What do clients look for in an effective arbitrator? Availability, responsiveness and timeliness, thorough preparation (knowing the case) and a sharp mind.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

You have enjoyed an illustrious career so far. What would you like to achieve that you have not yet accomplished?

To produce an award without a typo! More seriously, simply to be the best arbitrator that I can be. Every arbitration represents a new challenge, a new mountain to climb. All that I aspire to at this stage is conducting the new one better than the last, with the benefit of lessons learned, and getting it right.

There are at least three observations that I would make. The first and most obvious

Peers and clients say: “Eric is a first-rate arbitrator, especially in construction cases” “Highly recommended for commercial arbitration” whoswholegal.com/thought-leaders

179

Franz Schwarz

Wilmer Cutler Pickering Hale and Dorr LLP England www.wilmerhale.com

franz.schwarz@wilmerhale.com Tel: +44 20 7872 1025

Biography Mr Schwarz is global vice chair of the international arbitration practice at WilmerHale. He has been involved in over 250 commercial and investment arbitrations, as both counsel and arbitrator, with a particular focus on civil law jurisdictions around the world. Mr Schwarz is vice president of the International Arbitral Centre in Vienna and a board member of the Swiss Arbitration Association (ASA). Mr Schwarz is the recipient of the inaugural ASA Prize for Advocacy for his “outstanding talent” as an advocate. Who’s Who Legal has previously referred to him as “possessed of the winning gene” and “one of the best advocates in the world”.

180

Arbitrators & Counsel

What inspired you to pursue a legal career?

I blame US courtroom dramas on TV. And as we all know, it is exactly like that in real life. Only better.

What did you find most challenging about entering into arbitration?

When I started working in arbitration in London, the best arbitration practitioners were naturally all native English speakers. Performing compelling advocacy in a language other than your own, in a different culture with different reference points, was challenging. But the non-native speaker has advantages: more simplicity, fewer mannerisms.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings? For me, the flexibility that arbitration affords has always been a source of

fascination and fun. I do think that after a period of stagnation, we now see procedures in flux again – client demand for greater efficiency and the necessities of the pandemic have been great breeding grounds for new ideas and techniques. And perhaps a healthy competition between common lawyers and civil lawyers pushing notions from their own systems. I have recently seen a tribunal, at the merits hearing, spending three hours walking through the case, and seeking clarifications on factual and legal points, after the opening statements but before the taking of evidence. Everyone went into the witness testimony with a new sense of focus.

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

cultural references and legal notions across systems. For this reason, we always try to build teams that reflect, in language and background, the substance of the case, the legal system, and, importantly, the tribunal.

As the vice chair of the international arbitration practice group at WilmerHale, what are your main priorities for the group’s development over the next couple of years?

We have so many amazing and diverse next generation lawyers in the group. I want them to succeed, to the benefit of our clients.

Language is communication, and that’s the primary tool of advocacy. But language is also culture. A multi-lingual arbitration lawyer, or a multi-lingual team, can understand so much more than foreignlanguage documents: they can ‘translate’

Peers and clients say: “Franz is widely known in the market as a go-to arbitrator” “He is a highly rated for arbitration with a fantastic international practice”

whoswholegal.com/thought-leaders

181

Hi-Taek Shin

Twenty Essex Chambers Seoul www.twentyessex.com

htshin@twentyessex.com Tel: +82 10 5252 2125

Biography Professor Shin has unique experience combining a successful career as counsel, academic and arbitrator and in the public service. Until 2007, he had been a partner at Kim & Chang, the leading Korean law firm. Since 2007, he has been teaching on investment arbitration at Seoul National University. He served as the chairman of the Korea Trade Commission – the trade-remedy authorities (20162019). Since 2018, he has been serving as the chairman of KCAB INTERNATIONAL.

182

Arbitrators & Counsel

What do you enjoy most in your respective roles as counsel, academic, arbitrator and public servant?

I enjoyed all of my respective roles when I acted in each capacity. I now feel that my role as an international arbitrator at Twenty Essex (London/Singapore) is the culmination of my career, taking the benefit of the experience I have accumulated over the years as counsel, academic and public servants for the effective resolution of disputes arising from international commerce and investment. In particular, I enjoy working with reputable international arbitrators from different legal and cultural background on the issues involving complicated legal issues of diverse jurisdictions and legal traditions.

In your opinion, what legacy have you left behind at Korean Trade Commission?

Enhanced due process guaranteeing the parties a fair opportunity to present their case and the level of transparency in the entire process including the decision making.

How has the dynamic between arbitral tribunals and experts changed over the years?

I see two seemingly conflicting dynamics between tribunals and experts. First, as we now see experts on legal issues and quantum as well as in other disciplines in almost all cases involving substantial stakes, arbitral tribunals have become more reliant on experts’ opinion as an anchor to support their analysis. On the other hand, arbitral tribunals face difficulty when presented two contrasting views of experts who apparently act as de facto “advocates” rather than “experts”.

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

Yes, I do. The harmonisation of the code of conduct for arbitrators would certainly enhance the responsible behaviour of arbitrators and thereby public trust in the process and outcome of the international arbitration. Failure to have self-regulated discipline would invite external regulation.

As chairman of KCAB INTERNATIONAL, what hurdles are you facing in making Korea a more popular seat in the region and how is the board overcoming such obstacles?

The hurdles are more of perception on the quality as well as the impartiality and fairness of international arbitration case administration. To overcome this perception, in 2018, KCAB Board has set up KCAB INTERNATIONAL as an independent division, which is under the command of its own chairman. KCAB INTERNATIONAL’s case administration is in line with the international standard, very distinct from the domestic case management of KCAB. KCAB INTERNATIONAL has its own panel comprising reputable international arbitrators.

As member of the SIMC, what do you think the future of mediation lies in Korea and will it ever outshine arbitration?

various kinds of administrative mediation. However, in the process of Korea’s ratification of the Singapore Mediation Convention, I expect that the necessary legal infrastructure facilitating international mediation would be in place. Once that happens, there is good potential for Korean businesses to utilise international mediation as a meaningful option to resolve their disputes in international business transactions.

What has been your greatest achievement to date?

I take pride in being one of the pioneers leading the internationalisation of the Korean arbitration community, having played a leading role in launching the Seoul International Dispute Resolution Center (Seoul IDRC) in 2013, having participated in the task force working for the amendment to the Korean Arbitration Act in 2016, which incorporated major elements of the 2006 UNCITRAL Model Law and having played a role in the launching of KCAB INTERNATIONAL in 2018. I was the first Korean arbitrator appointed to serve as chairperson in an investment arbitration case under ICSID Convention.

What skills do you think are overlooked by and would encourage the up-and-coming generation of arbitration professionals to develop? Understanding and appreciating the fine differences of the parties, experts and in particular witnesses from diverse cultures.

The future of mediation in Korea is very bright. Koreans are very familiar with the utilities of mediation. Currently, the Korean mediation scene is dominated by court-affiliated mediation and

Peers and clients say: “Hi-Taek Shin is a leading arbitration lawyer” “He is a highly impressive arbitrator who leads the Korean market” “Hi-Taek Shin is a go-to person when you need a real heavyweight arbitrator”

whoswholegal.com/thought-leaders

183

Davinder Singh SC

Davinder Singh Chambers LLC Singapore www.davindersinghchambers.com davinder.singh@ davindersinghchambers.com Tel: +65 6328 0288

Biography Davinder is the executive chairman of Davinder Singh Chambers LLC. Davinder’s experience spans almost four decades. He has handled cases in almost every area of the law, including landmark cases. He is widely considered as Singapore’s most revered advocate and counsel of choice. He has an active international arbitration practice involving complex commercial disputes, international clients and multiple jurisdictions. He has acted in numerous institutional and ad hoc arbitrations.

184

Arbitrators & Counsel

Name one of your most memo- To what extent has the interrable cases in international national arbitration community arbitration. met the challenge of improving There are more than one, for different diversity in recent years? reasons.

Much progress has been made. There is an increasing determination to do more about it, and rightly so.

What impact does your work on matters outside of arbitration have on the value you bring to Do you envisage the emergence clients? of any new arbitration seats Mistakes are made in every case. Avoiding that will rival those currently the known mistakes adds value. most popular? What are the advantages and disadvantages of arbitration compared to litigation?

Many have this ambition as well as the capability. It remains to be seen who will succeed.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geogYou have a broad practice which raphy of their arbitrator’s seat? covers all corporate matters Not in any meaningful way. from banking, shareholder disputes, financial distress, to What is the best piece of advice fraud, copyright infringements you’ve ever received? and criminal breach of trust. To Never say no to dessert. what extent is sector-specific knowledge on the part of the arbitrator paramount when handling commercial disputes? There are good reasons to go for one or the other. But confidentiality and finality on the merits matter to some more than others.

It is helpful, but not essential, except where the issues require domain knowledge.

Peers and clients say: “Davinder has a great reputation in complex arbitration” “His arbitration experience is prolific” “I consider him the best arbitration practitioner acting in the market currently” whoswholegal.com/thought-leaders

185

Jonathan Sutcliffe

K&L Gates LLP Dubai www.klgates.com

jonathan.sutcliffe@klgates.com Tel: +54 582 4604

Biography Jonathan is a partner in K&L Gates’ arbitration group. Jonathan has significant experience across international arbitration, ADR, and litigation matters in the energy, construction, hospitality, real estate, defence, insurance, joint venture and film sectors, and on investor-state disputes. Jonathan sits regularly as an arbitrator. Jonathan is qualified in England and Wales, and New York. He is recommended by leading legal guides, including Chambers, The Legal 500, and The International Who’s Who of Commercial Arbitration.

186

Arbitrators & Counsel

How would you describe your career to date?

Very interesting, fun, accidental. In 1997, when I had just qualified at Freshfields, I was given an arbitration to run when a more senior associate went on secondment. After that, I was in the arbitration group (no one ever asked if I wanted to be!). Since then, I have worked for some great people, with great colleagues, on fascinating and high-profile arbitrations, which have taken me round the world in terms of arbitration institutions, clients, governing laws and hearings. I have worked in London, New York, Houston and Dubai.

There have been reported difficulties in the supply chain in the Middle East for global projects. How has this impacted arbitration matters?

The cost of construction materials, for example steel and other metals, has risen significantly. Regarding international shipping, the lack of available container ships in the right location was well publicised. International trade tariffs and regional embargoes have been an issue. Supply chain difficulties such as these can lead to increased costs, delay and cancelation of projects, which may ultimately feed through into claims in arbitrations concerning affected projects. Whether such claims succeed depends on the contractual apportionment for these types of risks, as well as any mandatory provisions of the governing law.

Could the rise of virtual hearings lead to a greater mixing of different legal systems and arbitration institutions?

International arbitration already results in the mixing of different legal systems, through the representation of parties by lawyers from different jurisdictions and legal cultures. This has resulted in a tendency towards homogenisation of certain practices and procedures, such as document production, written witness statements and expert reports, where the IBA Rules on taking of evidence in

international arbitration, for example, could be said to represent an ‘accepted’ compromise between legal systems. Virtual hearings will further cement the ‘mixing’, as it has become apparent that arbitration hearings can be conducted virtually quite successfully, with clients, legal teams, experts and witnesses all present in different jurisdictions and places.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

There is increasing use of techniques such as reducing the number of submissions, page limits, closer control of document production, interim hearings, video conferencing / virtual hearings, electronic communication and bundles, and ‘chess clock’ time distribution for hearings. Generally, there is more robustness in applying the powers available in arbitration rules, proactive first organisational meetings, and careful consideration of narrowing the issues and motions to resolve certain aspects of the case at an early stage. An interesting technique which could be used more often is the mid-arbitration review, involving the parties and the arbitrators, to focus on the key issues in dispute.

How have the new ICC rules impacted commercial arbitration practice?

It’s probably too early to tell the impact of the ICC Rules 2021, as they have only been in force just over a year (at the time of writing). Among the most significant changes in the new rules are (i) the tribunal’s ability to exclude new party representatives to avoid a conflict of interest of an arbitrator, (ii) the requirement to disclose the involvement of third-party funders (which have an economic interest in the outcome of the arbitration), which is meant to enable arbitrators to make appropriate disclosures, to protect independence and impartiality and (iii) the tribunal’s power to order a virtual hearing even if the parties do not consent, thus facilitating virtual arbitrations.

What green arbitration trends are currently prevalent in the market?

There is a drive to limit the vast amounts of paper an international arbitration can generate, with exhibit sets and hearing bundles often being submitted electronically only. Some arbitrations are now completely paperless. Virtual hearings have reinforced this trend, as they require electronic hearing bundles, or at least the ability to share documents on screen. A notable contribution is the Campaign for Greener Arbitrations, started by my former colleague Lucy Greenwood, which aims to reduce the carbon footprint of the arbitration community. This includes the Green Pledge, which includes pledges to correspond electronically, avoid printing and videoconference instead of travel, for example.

The pull for law firms to establish brand presence in ISDS keeps strengthening and the terms on which law firms are willing to take on defence mandates could be said to operate to level the playing field. There is also the question of the tribunal’s role in levelling the playing field, in giving more time, being more willing to trim the issues after bifurcation so the state is not fighting on unnecessary fronts and awarding costs if claims are dismissed at an early stage.

What is the best piece of advice you’ve ever received?

Never give up, keep going and keep trying. Determination and persistence will see you through. Most importantly, be kind and gentle to others in your dealings with them. A specific application of this is never to ‘burn bridges’ with your opposition; be civil (while professionally fighting your client’s corner) – the arbitration community is a small world, and you never know when you might run into them again, or need a boon from them in the future.

Peers and clients say: “He is very careful, thorough and hard-working” “He has a keen mind and good strategic sense” “I was very impressed with his handling of a case as an international arbitrator” “A star” “He is very user friendly to work with” whoswholegal.com/thought-leaders

187

Pierre Tercier

Peter & Kim

Geneva www.peterandkim.com ptercier@peterandkim.com Tel: +41 58 317 70 70

Biography Pierre Tercier is an emeritus professor of the University of Fribourg, the honorary chairman of the ICC International Court of Arbitration and a prominent international arbitrator with extensive international arbitration and dispute resolution experience. He is a visiting professor of law at numerous universities around the world. He graduated from the University of Fribourg summa cum laude and was admitted to the bar in 1969. He recently joined the law firm Peter & Kim as senior counsel.

188

Arbitrators & Counsel

What motivated you to pursue a career in arbitration?

I started my career in arbitration when I was teaching full time at the University of Fribourg. It allowed me to complement theory with practice. After my retirement, I was appointed as chairman of the ICC International Court of Arbitration. I pursued a career as an independent arbitrator and recently joined Peter & Kim as senior counsel. This latest step allows me to remain present in the world of arbitration at the highest level. It also offers me the opportunity to meet outstanding people and deal with very interesting matters.

How has the role of arbitrator changed since you started your career?

The role of arbitrator has indeed changed drastically since the beginning of my career. When I started, it was still possible for an arbitrator to master a case without too many difficulties. The cases were less complex, the submissions were shorter and less detailed, and the hearings were more straightforward. Things have changed because of the professionalisation, but also because of the new challenges posed by the evolution of technology. As arbitrators have to deal with increasingly complex cases, experts play a fundamental role in the proceedings nowadays. There is a clear imbalance between counsel and their teams on the one side, and arbitrators on the other.

Looking back over your career, what is the most memorable case you have been a part of?

It is always difficult to choose one, as I have been involved in a number of very interesting cases. The most famous case was probably Abaclat. I replaced Robert Briner as chairman and continued the proceedings with 180,000 claimants. The majority of the arbitral tribunal has accepted jurisdiction and we were about

to render the award when the parties decided to settle the case amicably. But I had many other interesting cases in very different industries, some of which were more challenging and stimulating than others. My memories of cases tend to also depend a lot on the qualities of the people I worked with.

to see among them many excellent young people with whom I had the pleasure to work. Concerning the gender, I also see some improvement, although there is certainly room for more. I personally supported the Delos initiative for diversity, which hopefully will allow us to take further steps in this direction.

How have the new ICC rules What are the key qualities that impacted commercial arbitra- make for a successful arbitrator? tion practice? There are of course different key qualiThe new rules certainly have a great impact on the practice. The new rules reduced the court’s and Secretariat’s involvement in the initial stages of a case, while at the same time maintaining their extremely important role in the proceedings overall. Another important change concerns multi-party arbitration. Finally, the new rules expand the tools available for accelerating proceedings. This trend already existed in the court’s practice and sometimes involved putting pressure on the tribunal.

ties, depending on the role of the arbitrator (president, co-arbitrator or sole arbitrator), on the legal culture, and on the nature of the case. The president in particular must be able to conduct the case in an efficient way, but must also ensure that the rights of the parties are respected. On the merits, I like to quote Wolfgang Goethe: “Talking is a need, listening is an art.” Indeed, an arbitrator should first be able to listen to the presentation of the case without any prejudgement, and then to decide in a fair way.

Could the rise of virtual hearings lead to a greater mixing of different legal systems and arbitration institutions?

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

This is a difficult question. Over the past two years, I had to conduct several virtual hearings, only returning to in-person hearings recently. In my experience, virtual communication may not always be as conducive to cross-fertilisation between lawyers from different legal systems as in-person hearings. For some aspects of the proceedings, such as case management conferences, however, virtual formats can be very efficient.

Since I am at the age when people think about reducing their activities, I have decided to pursue the cases I have with the same enthusiasm but also to reduce the number of cases in which I might be appointed. At the same time, I still wish to learn about new industries, pass my experience to the next generation of arbitration lawyers and support Peter & Kim in its continuing growth.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

Looking at the online lists of arbitrators, I see more and more young people from different parts of the world. It is a pleasure

Peers and clients say: “Pierre is an excellent academic and a leading arbitrator with broad experience” “He is highly experienced in investment and commercial arbitration” “He provides great counsel” whoswholegal.com/thought-leaders

189

Hiroyuki Tezuka

Nishimura & Asahi Tokyo www.nishimura.com

h.tezuka@nishimura.com Tel: +81 3 6250 6277

Biography Hiroyuki heads Nishimura & Asahi’s international dispute resolution practice group. He specialises in international commercial litigation and arbitration. Additionally, he serves as a court member of the ICC and SIAC, and since 2018 he has been a council member of the ICC Institute of World Business Law. Hiroyuki graduated from the University of Tokyo (LLB) and Harvard Law School (LLM). He is admitted as an attorney in Japan and in New York.

190

Arbitrators & Counsel

What inspired you to pursue a legal career?

When I was a fourth year student at the University of Tokyo, Faculty of Law, I had basically three choices: public servant, academic scholar, or the legal profession. I decided to work as a private practitioner, as I wanted to work on international matters. International arbitration is truly international, and I found my selection was the right one. I was lucky enough as I was also able to get involved in the legislative process as a member of the committee on the Judiciary Council on arbitration law amendments, etc, as well as in legal education as a visiting professor at the University of Tokyo Law School.

What impact does your work in matters outside of arbitration have on the value you bring to arbitration clients?

My experience in corporate and M&A matters in my younger years has helped me to better understand the issues in arbitration, as well as in settlement negotiations where creative solutions are often needed. At the University of Tokyo Law School, in addition to lecturing on international arbitration, I needed to lecture on closely held corporations. The Companies Act has been significantly amended since I turned to focus on arbitration and work less on corporate matters, so I had to study hard to prepare for my lectures, with a lot of assistance from my firm’s corporate lawyers. Thereafter, a new arbitration case arose, which involved disputes over a closely held corporation, and I was able to use my updated and refreshed knowledge on corporate law.

How has the role of an arbitrator evolved since you started your career? I started as arbitration counsel, but have had increasing opportunities to sit as an arbitrator. Getting known by the people in

the arbitration community either through counsel work or networking events may be helpful to have more arbitrator work referrals, but the most important thing is to serve as a good arbitrator. Diligence, patience and humour are always important and often rewarded. Taking arbitrator training courses offered by reputable arbitration institutions and organisations is also helpful.

developed countries) in the IBA Arbitration Committee when I was young. International clients tend to appreciate the involvement of female team members who are very diligent and smart. I tried to increase female vice-chairs when I was a co-chair of the IPBA Dispute Resolution & Arbitration Committee. Providing opportunities is important, but the most important thing is to assist them in making the best use of such opportunities.

How has the shift to online working and events affected What makes Nishimura & Asahi networking opportunities? stand out from its competitors It is difficult to get to know people better in the market? via online work and events, so in-person communication is very important in effective networking. The other side of the coin is that it is easy to join online networking events and get to know people from all over the world whom you have never met before. I expect that I will have increasing opportunities to meet in person with those new friends in due course.

Are you noticing an uptick in certain sectors experiencing commercial disputes? Why?

There are many sectors where international commercial disputes are increasing, such as construction/projects, energy and IT/IP sectors. As those sectors generate more international contracts, often involving developing nations, there are more disputes.

What challenges do you see in improving diversity in the field and how are you addressing them?

I consider that in Japan, international arbitration is a field in which diversity has been “relatively” well addressed more so than in other fields, partly because the progress in diversity was seen in the international arbitration community years ago and there were already a number of female leaders (including those from less

We are not only the largest arbitration team in Japan but also diverse enough to have truly international team members, including experienced global arbitration specialists located in Tokyo. We have a Japanese arbitration specialist in our New York office and can provide around-theclock services using the time-difference. We have global networks to work with the most appropriate co-counsel worldwide. Our senior team members including myself often sit as arbitrators, and such experience is helpful in understanding the dynamics of the arbitral tribunals’ decision-making process.

What underrated skills would you encourage the up-andcoming generation of arbitration professionals to develop?

Understanding both civil law and common law approaches is very helpful. Even if you are not the lead counsel conducting crossexaminations and are only preparing the cross-scripts, always try to think as if you were conducting a cross-examination, how you could make it better than your senior partner. Serving as a tribunal secretary would assist you in understanding the discussions taking place among the members of the arbitral tribunal behind closed doors.

Peers and clients say: “He has deep knowledge in Japanese arbitration law and practice” “A true leader of the bar” “He is highly regarded as one of the top arbitration specialists in Japan” whoswholegal.com/thought-leaders

191

Albert Jan van den Berg

Hanotiau & van den Berg Brussels www.hvdb.com

ajvandenberg@hvdb.com Tel: +32 2 290 3913

Biography Professor Albert Jan van den Berg is a partner at Hanotiau & van den Berg (Brussels). He is a visiting professor at Georgetown University Law Center, Tsinghua University Law School and University of Miami School of Law and member of the faculty and the advisory board of the University of Geneva Master in International Dispute Settlement Program. He is emeritus professor of law (arbitration chair) at Erasmus University, Rotterdam. He is sole, presiding and party-appointed arbitrator in numerous international commercial and investment arbitrations. He also acts as counsel in international commercial arbitrations and in set-aside proceedings.

192

Arbitrators & Counsel

What are the advantages of having diverse geographical and sectoral experience? What benefits does it deliver to clients?

Like most kinds of diversity, a mix of geographical and sectoral experience brings a richness of perspective. It is not uncommon for an experience in one country or one sector to be valuable in another. In my experience, for clients this brings more creative thinking and solutions. This goes hand-in-hand with a fundamental understanding of the market and sector in which your client operates.

for us to find new ways to stay connected. For new recruits, this involves regular team meetings as well as direct supervision and interaction with all members of the team. It is difficult to replicate those important training moments that often arise impromptu in an office setting, but we have endeavoured to keep our virtual office doors open via the means we have available.

diversity, and in particular gender diversity, in recent years. There is still much work to be done, not only in respect of gender diversity, but in other fields such as regional and racial diversity. Following a bike accident in 2021, I also became acutely aware of the challenges faced by people with disabilities in this professional field. For this reason, disability inclusion is also a passion of mine and I serve as an awareness ambassador to the ICC task force on disability inclusion and international arbitration. We have our work cut out for us.

What further steps can be taken to ensure that arbitration professionals are more comfortable using arbitration hosting platforms and other technology What do you enjoy most about increasingly used in the space? Do you envisage the emergence w o r k i n g i n i n t e r n a t i o n a l In my experience, the profession adapted of any new arbitration seats arbitration? rapidly to new technology as a result of that will rival those currently I most enjoy applying intellectual rigour to the need for everything to go online during most popular? get to the bottom of each case. Whether technical, human or legal, every case has its curiosities and Iessons to learn. I also greatly enjoy working with the next generation of talented lawyers to execute our legal work with excellence and precision.

the pandemic. For those that still need a nudge, at pre-hearing conferences I often offer recommendations for my favourite microphone! Practice makes perfect, and over time I am sure that we will naturally become even more well adapted to technological solutions that offer many time and cost benefits to parties and proceedings in general.

In what ways has the firm adapted hiring and training processes for new practitioners in light of the coronavirus To what extent has the interpandemic? national arbitration community Like many firms, our training processes met the challenge of improving have been challenged by the circumstances diversity in recent years? of the pandemic. I don’t see a big shift in our hiring policy, but it has certainly been crucial

I do see shifts in the market and new regional hubs emerging. There is a lot of room for competition. However, I estimate it will be quite some time before those seats are able to rival dominant centres of arbitration with long legal traditions of international arbitration. For new arbitral seats to be successful, they require not only UNCITRAL Model Law compliant arbitration laws, but also judges who are familiar with the law and practice of international arbitration.

The international arbitration community has taken admirable steps to improve

Peers and clients say: “One of the leading arbitrators in the world” “Albert Jan is one of the biggest names on the international circuit” “A leading light” “He is highly recommended for his investment and commercial arbitration expertise” whoswholegal.com/thought-leaders

193

Annet van Hooft

van Hooft Legal

Paris www.vanhooft-legal.com vanhooft@vanhooft-legal.com Tel: +33 6 19 15 92 93

Biography Annet van Hooft is an independent arbitrator based in Paris. After having practised for more than 20 years at major US and UK law firms in Brussels, New York and Paris, and having been a counsel at the ICC Court of Arbitration, Annet set up her own law firm focusing on international arbitration. She has a broad range of experience handling a wide variety of disputes (construction, energy, corporate, IP and life sciences).

194

Arbitrators & Counsel

How has the role of arbitrator changed since you started your career?

The intrinsic role of an arbitrator, which is to render a decision in a dispute between two or more parties, has, of course, not changed. Arbitrators have, however, become more proactive in managing the proceedings. Today, it is virtually unheard of to not have at least one case management conference at the outset of the proceedings, if not several case management conferences over the course of the proceedings. Arbitrators have also become more aware of public policy issues, such as issues related to competition law and corruption. Arbitrators tend to raise these issues more frequently so that they can be treated upfront.

What do you enjoy most about working in arbitration?

The inherent international nature of arbitration provides us with privileged access to a diverse cultural environment, both on a human and intellectual level. I find this to be very enriching.

Some jurisdictions are drafting new rules on expedited summary proceedings in arbitration. How fast can disputes proceed without breaching procedural rights?

There are natural limits to what can be achieved in terms of speed for dispute resolution. Often there is a big discrepancy between the expectations of the parties before a dispute arises, and the real-life possibilities once a dispute has arisen. I consider it is important that the applicable rules allow for flexibility in terms of the time period allowed to come to a decision. There are cases where it is entirely appropriate that provisional relief is granted in less than one week, for example, when the matter is extremely urgent and

rather straightforward. There also are cases, where a one-month period is appropriate, when the matter is more complex and perhaps somewhat less urgent, even though for example the constitution of the arbitral tribunal cannot be awaited.

arbitrators with a better understanding of the context of a dispute. This allows arbitrators to engage more thoroughly with the legal and other issues at stake.

I consider this would be a good idea, as not all arbitration institutions appear to apply the same standards. Indeed, although some institutions have published their own guidelines in relation to conflicts of interest, such as the ICC, many institutions do not go beyond “blanket” requirements of independence. In the absence of detailed guidelines from the institutions, the IBA Guidelines on Conflicts of Interest in International Arbitration have in large part, been the international arbitration community’s beacon on issues of conflicts. Given that they were last revised in 2014, and in light of the increased demand for transparency, it might be time to revisit them. Perhaps, arbitral institutions could play a greater role in the revision process and so come to a greater consensus. This is important so that parties know what they can legitimately expect from arbitrators in terms of disclosures, but also for arbitrators, so that they know what is expected of them (and can comply) and are shielded from unmeritorious challenges, which regrettably also still happen.

means of dispute resolution depends. We live in a globalised world and arbitration is the method through which we resolve the disputes that are generated by international commerce. The first steps to be made are our own. Practitioners should therefore consciously make efforts to focus on increasing diversity in the arbitration field. This would include, for example, proposing diverse panels of arbitrators and hiring associates from different legal backgrounds.

What steps can be made to increase diversity in the arbiGiven the increasing number of tration field? conflicts arbitrators and coun- As Melanie van Leeuwen mentioned sel are experiencing, should during her keynote speech at the 2022 there be a set of universal con- Paris Arbitration Week, diversity is not a flict principles across arbitra- matter of choice, it is a necessity on which tion institutions? the future of arbitration as a self-standing

What makes van Hooft stand out from its competitors in the market? The fact that I work in a small structure, which results in little to no conflicts, my significant experience as an arbitrator and my ability to work in several languages makes van Hooft stand out from its competitors. Moreover, I have expertise in fields that often have recourse to arbitration such as construction and energy, IP, tech, and pharma, and of course corporate disputes.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to parties? The advantage of having diverse geographical and sector experience is that it provides

Peers and clients say: “Annet is a very knowledgeable and incredibly able arbitrator” “She has strong institutional experience from the ICC” “She is an outstanding co-arbitrator” whoswholegal.com/thought-leaders

195

Cosmin Vasile

Zamfirescu Racoţi Vasile & Partners Bucharest www.zrvp.ro

cosmin.vasile@zrvp.ro Tel: +40 21 311 05 17

Biography Dr Cosmin Vasile has extensive experience of more than 20 years in handling cross-border disputes and boasts an outstanding track record of around 100 international arbitration proceedings as counsel and arbitrator, conducted under various laws and sets of arbitration rules, including ICC, LCIA, CAM, SCC, VIAC, UNCITRAL, ICSID and CICA. He is one of the leading experts in construction, capital markets, privatisation and energy arbitrations in Romania, and provides assistance to a broad spectrum of companies, institutions and authorities.

196

Arbitrators & Counsel

How would you describe your career to date?

I have been a disputes lawyer from the beginning of my professional life, but I started my career as a traditional litigator. When I first came across international arbitration, while working on a large commercial case, I discovered the ingredients that, I felt, had been missing in litigation, such as the advocacy edge, the cross-cultural experience, the diversity of backgrounds, etc. The first arbitration case sufficed to change the trajectory of my career and marked the start of my international arbitration practice. I have, since, had the opportunity to be counsel and arbitrator in some of the most spectacular arbitrations involving Romanian parties among others. However, litigation experience has broadened my horizons in arbitration disputes and often worked to my advantage.

What qualities make for a successful arbitrator?

Successful arbitrators combine strong case management skills with legal wisdom. On a practical level, it is important to know one’s limits and accept only as many appointments as can be handled properly.

What did you find most challenging about entering the world of international arbitration? As a practitioner from Eastern Europe, the most challenging task was gaining the trust of users who had previously relied on the expertise of western practitioners. A trend that I am proud to have contributed to is that Romanian practitioners are increasingly becoming a preferred choice for users from the region.

What is your take on virtual hearings as an alternative to in-person hearings? Are they here to stay? Hybrid and virtual hearings are the biggest reinvention of the covid-19 pandemic. The

arbitration community will continue using these tools. For some hearings, they are just the best option. However, practitioners who have had at least several virtual and hybrid hearings during the pandemic will agree that the virtual environment is not an equal alternative to physical presence. Technology often fails or cannot provide immediate solutions. The question is whether the trade-off is worth it. Most clients who opt for international arbitration, especially in larger and fact-intensive cases, still want to have their “day in court” as they used to have it before the pandemic. I personally hope that the future hearings will be physical hearings. As to costs, some virtual and hybrid hearings turn out to be not as cheap as in theory, considering the need for specialised providers, technical equipment, etc. I believe the virtual and hybrid hearings are here to stay, but the enthusiasm for them will fade away, at least for a while.

In my view, the most important shift in perspective is that there is now accountability at the level of these bodies as to the process they put in place to achieve diversity and inclusion, and the results. A couple of years ago, a lack of or insufficient diversity was a concern. Now achieving diversity is an action plan for a variety of organisations.

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

Until recently, the main concern was balancing the use of technology and innovative approaches with due process considerations and reliability of arbitration as a means of resolving disputes. As of February 2022, the war in Ukraine places international arbitration in front of new challenges. It remains to be seen to what extent the tensions in the region will affect arbitration and what we can do to uphold international arbitration as an effective means of resolution of disputes.

My primary focus in international arbitration cases is on construction, energy, environmental and M&A disputes. These sectors are currently the most prolific in arbitration work in Romania and in the region. However, I like a good intellectual challenge and cases in new industries or involving novel legal issues.

What advice would you give to up-and-coming practitioners hoping to one day be in your position? In an era of changes, there are no safe recipes for success. Young practitioners should be creative and dare to do some things differently than before. The only caveat is that professionalism, quality work and consistency have always been difference-makers in international arbitration.

What are the current challenges of arbitrations in the region?

To what extent has the international arbitration community met the challenge of improving diversity in recent years? As a practitioner whose career took off when the international arbitration community was just starting its quest for diversity, I appreciate the steps that have been taken so far in promoting gender, geographical and age diversity. Some arbitral institutions and organisations took a leap forward.

Peers and clients say: “An expert in the field of international arbitration” “He is a result-oriented lawyer with commercially sound judgment” “Cosmin is a very experienced arbitrator and counsel” “He clearly understands the client’s commercial goals and is an excellent tactical thinker” whoswholegal.com/thought-leaders

197

Claus von Wobeser

Von Wobeser y Sierra, S.C. Mexico City www.vonwobeser.com

cvonwobeser@vwys.com.mx Tel: +52 52581000

Biography Founder of Von Wobeser y Sierra, with more than 40 years of experience in dispute resolution. He has participated in more than 200 commercial and investment arbitrations as arbitrator, counsel and expert. Current president of the ALARB and the ICC in Mexico. Former vice president of the ICC Court, co-president of the IBA Arbitration Committee and president of the ICC Mexico Arbitration Commission. He studied at Escuela Libre de Derecho (JD) and Paris II (PhD).

198

Arbitrators & Counsel

What attracted you to a career in arbitration?

I believe it was chance or destiny. I began my career as a corporate lawyer with no involvement in dispute resolution. Furthermore, when I began practising, arbitration was almost inexistent in Mexico. In the early 1980s, while pursuing my PhD at Université Paris II, I met Alexander Shill and Yves Derains, who introduced me to arbitration, and I began to research the area. After a while, I was invited to become a member of the ICC Court. A few years later, I returned to Mexico, where arbitration had started to become popular, mainly due to the opening of the economy.

Looking back over your career, what is the most interesting arbitration you have been a part of?

As an arbitration practitioner, I sit as arbitrator and I represent clients as counsel. The most interesting case in which I have acted as arbitrator was Inseysa Vallisoletana vs. El Salvador, which was one of the first cases that addressed corruption and its effects in investment claims. The most interesting case in which I have participated as counsel was Comissa vs. Pemex, where I represented Comissa. In that case, the award in favour of Comissa was set aside in Mexico but later enforced in New York, being one of the first cases of an enforcement of a nullified award in history.

opinion, a lack of diversity results in shortsighted advice, which hardly benefits the clients’ interests.

What green arbitration trends are currently prevalent in the market? What underrated skills would Thanks to the Green Pledge and partially you encourage the up-anddue to the covid-19 pandemic, arbitra- coming generation of arbitration practice has notably shifted towards tion professionals to develop? a greener practice. Perhaps the most prevalent trend that I see in my firm and in the cases that I sit as arbitrator is that parties and arbitrators are much more open to agreeing not to produce any hard copies. Also, the pandemic showed us that it is completely possible to hold functional meetings and hearings via videoconference. This has dramatically reduced the amount of travel needed for the preparation of a case, thus reducing the carbon footprint of arbitration.

How is AI and technological developments affecting the analyses you conduct? How do you anticipate it will affect analyses moving forward?

I personally have not been involved in a case where AI is used. However, there are many other technological developments that have drastically changed arbitration practice. Today, the use of document OCR and sophisticated software for the handling of documents and automated translation are widespread among sophisticated firms. I am sure that these tools will continue to improve in the future, which will help practitioners to manage and understand cases in a much better way.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients? What challenges do hybrid I would summarise it in two words: hearings present from an perspective and visibility. The more diverse impartiality standpoint? your geographical and sector knowledge and experience is, the more complete and creative solutions you can craft. In my

the fundamental downsides of hybrid and remote hearings are the difficulties that different time zones present and that it is generally harder to remain fully focused in front of a screen vis-a-vis a hearing room.

I am a big supporter of remote and hybrid hearings. I do not believe they pose any impartiality issues. From my perspective,

Understand the numbers. In my experience, the one thing that sets good and excellent arbitration lawyers apart is a full understanding of the quantum of the case. Many lawyers just let the quantum experts do their reports without getting involved in their work and in many cases without understanding their work. This creates two problems. First, how can they expect to explain and convince the tribunal on the quantum if they do not understand it themselves? Second, normally, quantum experts are not lawyers, therefore, they may not know what a report needs to be good and compelling evidence. When lawyers and experts don’t talk and understand each other, they may end up with a technically supported report that unfortunately is not useful from a legal standpoint.

What has been your greatest achievement to date?

Over the past 36 years, I founded Von Wobeser y Sierra with my partners Maclovio Sierra and Javier Lizardi. Maclovio died shortly after we established the firm. However, we continued to work relentlessly to consolidate the firm. Today, almost four decades later, I am proud of what we have achieved. We have been able to transform Von Wobeser y Sierra into one of the most important firms in Mexico, not only in arbitration, but in most practice areas. I am sure that my partners and associates will continue to preserve and enhance this legacy in the decades to come.

Peers and clients say: “Claus has a mastery of all aspects of Mexican law” “He has a deep understanding of international arbitral institutions”

whoswholegal.com/thought-leaders

199

Robert Wachter

Lee & Ko

Seoul www.leeko.com robert.wachter@leeko.com Tel: +82 2 6386 6241

Biography 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.

200

Arbitrators & Counsel

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.

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 The current arbitration market younger professionals in naviis reportedly working with a gating the different dynamics? small pool of arbitrators, and The internal decision-making process it is becoming increasingly dif- in government differs from the private ficult to find arbitrators who do sector. The same is true for governmentnot have a conflict of interest. owned enterprises. The internal incenDo you agree, and if so, how tives are also quite different. Governments can this issue be effectively and government-owned enterprises are addressed? subject to audit. This complicates deciIn 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.

sion-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.

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

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

In your opinion, do you foresee How does your broad experi- Korea becoming a more popuence across a wide range of lar seat in the region? sectors enhance the skills you Korea is one of the strongest seats in Asia bring in your practice? – just as arbitration-friendly as Singapore

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.”

Peers and clients say: “Robert is a detailed and passionate practitioner” “He is always reliable in arbitration proceedings” “Robert is very good at communicating his ideas clearly and making his arguments easy to understand” whoswholegal.com/thought-leaders

201

Janet Walker, CM

Toronto Arbitration Chambers London, Toronto, Sydney www.janet-walker.com janet@janet-walker.com Tel: +61 2 9137 6652

Biography Janet Walker, CM is an independent arbitrator based in London, Toronto, and Sydney. She has served in ICC, ICDR, DIAC, HKIAC, LCIA, PCA, SIAC and ad hoc arbitrations in a variety of seats in matters relating to construction, heavy equipment, M&A, shareholder, intellectual property, pharma, environmental, finance and employment. She chairs the ICC Canada arbitration committee, co-chairs CanArbWeek, and edits the Canadian Journal of Commercial Arbitration; and she received the CIArb Canada Award for Distinguished Service.

202

Arbitrators & Counsel

What do you enjoy most about w orking in international arbitration?

Arbitrations involve an ever-changing combination of facts, issues, rules and laws – all set within a rich and complex context of human relationships – relationships with other members of the tribunal, with and between counsel, and between the many fact and expert witnesses and other individuals involved in the matter and the underlying events. Every arbitration presents a fascinating new array of opportunities to learn and to develop the craft. In the end, though, it is the human dimension that I enjoy most.

As the chair of ICC Canada and founding member of CIArb Canada and Toronto Commercial Arbitration Society, what does Canada offer from an arbitration standpoint that distinguishes it from other seats?

Major Canadian cities such as Toronto, Montréal, Calgary and Vancouver are joining a number of other rising stars among seats for international arbitration. With some of the most respected senior arbitrators in the world and an increasingly sophisticated ‘next generation’ of arbitrators and counsel gaining international recognition, the Canadian arbitration community continues to make an outsized contribution to the field. As co-chair of CanArbWeek, now entering its third year, I can say with pride that there is a real fission of energy. It is an exciting time for arbitration in Canada!

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting arbitrators based on their geographical location?

Having practised for many years from bases (with homes) in London, Toronto, and Sydney, I have come to learn the benefits of proximity to the cities where the hearings are held. During the pandemic travel restrictions, I sat in hearings running through the night and found it to be feasible, but daytime online hearings are more sustainable over time. Accordingly, geography may continue to be a factor in arbitrator selection but so too will the willingness of an arbitrator to meet the needs

whoswholegal.com/thought-leaders

of the parties, whether through travel or flexibility in scheduling as the matters require.

It is not that the process is “no longer efficient” so much as the cases are becoming more complex and our expectations for efficiency are increasing. Still, there is much that can be done. Proactive case management begins with the receipt of the file and continues until the award is delivered. Engaging the parties frequently; encouraging them to confer over options and to clarify their differences ahead of rulings; convening brief videocalls as needed to resolve issues promptly so that the parties can move forward; and anticipating and addressing practical concerns in the conduct of the hearing, are all techniques that we see being deployed more regularly. The process is no longer one of “set it and forget it.” It is an active role for sole arbitrators and tribunal members alike.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree?

No, I don’t agree. To be sure, as the practice of arbitration develops and the community expands, the standards are dynamic, and we must find ways to respond to change. Parties understandably want to know more, and it is important to trust that with enough information and good advice, they will make sound decisions. There will always be the risk of mistakes and mischief in some cases, but we must all work to maintain the confidence of the business community.

How does your experience as an expert witness enhance your practice as arbitrator?

The participants in the arbitral process comprise many different roles – counsel, arbitrators, fact and expert witnesses – not to mention stenographers, interpreters and, increasingly, the technicians

203

and other service providers who serve vital logistical functions during hearings. The better one understands the work of each of these participants and what is involved in performing their roles, the better one is equipped to manage cases and hearings in complex matters. Having spent some 25 years studying and teaching advocacy and having served in many mandates over that time as a consulting and a testifying legal expert, I have gained an appreciation of what is involved in performing in these roles; and I hope that this makes me more effective in managing the process as an arbitrator. It is not unlike the benefits to a conductor of having played some of the instruments. I would add that, having grown up with a father who was a court reporter, I also have some insight into the importance of that role and the dedication

it requires, even though much has changed since the days of writing in shorthand on a notepad.

As a founding member of ArbitralWomen, what more can the international arbitration community do to meet the challenge of improving diversity over 2022–2023?

Recalling gender diversity in the arbitration community from just a few decades ago, we have come a long way. With each year, the arbitration community reflects better the legal profession, and the legal profession reflects better the larger community across the range of demographics. But this is a general statement. The work ahead to make arbitration more inclusive varies enormously from place to place,

and although there have been important gains for some groups in some places, there remains much to be done to support others. I am thrilled to see the achievements of ArbitralWomen, the Pledge and other initiatives to advance gender diversity; and I am especially proud to see the trend to leverage this momentum to promote inclusion of other historically under-represented groups. Whether this is by helping them to build their networks, to gain standing and recognition, to be selected for conference panels, arbitral panels or positions of leadership, the techniques that have assisted women can and are being used to promote diversity more broadly. I am also delighted to see arbitral institutions like the ICC championing initiatives for disability inclusion and support of the LGBTQIA community.

Peers and clients say: “Janet is an outstanding academic and arbitrator” “I highly recommend her in-depth commercial arbitration expertise” 204

Arbitrators & Counsel

Read interviews with the world’s leading lawyers and experts.

Available now  @whoswholegal

 whoswholegal.com

 Who’s Who Legal

Carita WallgrenLindholm

Lindholm Wallgren Attorneys, Ltd Helsinki www.lindholmwallgren.com

carita@lindholmwallgren.com Tel: +358 9 684 53 43

Biography Carita is a Helsinki-based international arbitrator who began her practice in Paris in the early 1980s. Before starting her boutique in 2008, she spent 25 years at Roschier in corporate and dispute resolution work. She has been involved in more than 120 international arbitrations, mainly as arbitrator and chair including SCC, ICC, FAI, LCIA, JCAA, DIA, PCA, ICSID, UNCITRAL and NAFTA. She was the chair of the ICC Commission on Arbitration and ADR 2018–2021.

206

Arbitrators & Counsel

What has been your greatest achievement to date?

That will be for others to say (my generation of Nordics were not conditioned to look through the lens of personal achievements).

How has the role of an arbitrator changed since you started your career?

Most arbitrators today have descended from their ivory tower and let down the stone face mask to become more active and visibly engaged, forward leaning to steer the proceedings and try to bridge any existing gaps in the parties’ approach to procedure. The arbitrator is not only perceived as the adjudicator but also as a service provider who is expected to be well informed about the case from the beginning and manage the proceedings proactively. This need not mean being inquisitorial but to tailor the procedure to efficiently deal with the substance before the tribunal. There is clearly more interactivity between the parties and the tribunal today and to some extent more orality. I have found that the temperature lowers in oral exchanges to achieve better-customised structures. This does not necessarily mean greater informality, only constructive dialogue. Long sequenced writings do not always meet.

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? I do not see a conflict between mediation and arbitration; they rather supplement one another. Some disputes are better suited to be solved through the one rather than the other procedure. And as we know, both mechanisms can be deployed in parallel or in sequence for the same dispute. I would not approach

a comparison between arbitration and mediation by trying to be “protective” of the former: arbitration exists because disputing parties need it and should its raison d’être weaken in favour of mediation through market forces, then nature has taken its course so to speak. In all events, I believe there has been much cross-fertilisation between arbitration and mediation. One example could be more collaboration between counsel in arbitration. I chaired the mediation committee of the Finnish Bar upon its inception and it was obvious that attitudes of counsel in litigation and arbitration changed among those who had been mediation trained. While not an active mediator myself, I think there has also been, and is, a flow in the other direction.

proceedings, I think that logistically and technically remote hearings are in principle an adequate means to also solve big-ticket disputes. In my experience, chemistry and atmospherics can also be conveyed.

Arbitration attracts much extraordinary talent, and there is a risk that it will be crowded in the high-end arbitration practices. On the other hand, maybe an arbitral specialisation can be deployed elsewhere since this practice is to some extent closer to the law than, for example, transactional work. In order to hedge against a too crowded marketplace, maybe the next generation would be wise to take a few steps back and assure a broader legal foundation, a kind of back-to-basics. Arbitration is one conduit for access to justice and I think that in today’s complex world it can be more important to understand fundamentals than the (ever-changing) practices of today. I often recommend, also to myself, a brush-up of Roman law. To deal with future challenges, old fundaments may be a good platform from which to proceed.

ples. But there is a danger in most discussions about conflicts, often reducing the debate to a casuistic, tick-the-box exercise of de minimis prohibitions. Rarely do we hear a reference to the role of a lawyer or an adjudicator in the administration of justice, something that may contribute to a certain lack of credibility of the ethics inside our community seen from the outside. I also think that the rewriting of ethical standards by political actors responding to populist demands has not been helpful. Even though uniform standards will obviously be a challenge, the discussion surrounding any effort is essential. Hopefully it could focus more on fundamental values than securing protection of a perceived right to serve.

To what extent can virtual hearings be relied on to decide high-stake multibillion-dollar cases between parties?

The base attributes are the obvious: law, comparative law, true mastery of and interest in languages and cultures, curiosity and readiness to manage your biases. Being a nice and respectful person overall is distinctive. Authority has many faces and never conflicts with civility.

How have the new ICC rules impacted commercial arbitration practice?

I think the ICC rules are in tune with the times and address most of the issues that are faced in practice, mirroring but also leading prevalent practice. The ICC rules are the standard that practitioners look to.

Given the increasing amount of conflicts arbitrators and counsel are experiencing, should there be a set of universal conWhat do you think will be the flict principals across arbitragreatest challenge facing the tion institutions? next generation of arbitration My short answer is yes; I would favour a few practitioners? principled base rules with guiding exam-

I am a big aficionado of virtual hearings, wholly or partly, and while some face-to-face often is beneficial to the

What advice would you give to lawyers looking to establish a career in arbitration?

Peers and clients say: “Carita is much in demand as arbitrator” “Ms Wallgren-Lindholm is a highly knowledgeable and unflappable practitioner” “She is a senior arbitrator in the market” whoswholegal.com/thought-leaders

207

Urs WeberStecher

Weber-Stecher Arbitration Zurich www.weber-arbitration.ch

urs.weber@weber-arbitration.ch Tel: +41 444 20 11 20

Biography Urs Weber-Stecher is an independent arbitrator and mediator. He has more than 25 years’ experience in international dispute resolution. In more recent years, he extended his practice to commercial mediation. His practice includes a broad variety of areas of law in a wide range of industries. He has been a lecturer for international arbitration at the University of Zurich since 2001. He is president of the Commission of Arbitration and ADR of ICC Switzerland, he is a member of the Board of the Swiss Arbitration Association and also serves as vice-president and head lecturer of the Swiss Arbitration Academy.

208

Arbitrators & Counsel

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? As far as I can observe, this danger is still a long way off; certainly in continental Europe. I am also noticing that the call for more efficient dispute resolution is becoming stronger, which is why companies are increasingly focusing on mediation also in commercial cases, and I think that is a good trend. However, it is still only a small portion of international commercial cases that are sought to be resolved by mediation.

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

In recent years, disclosure standards for arbitrators have increased significantly. It is expected that all possible circumstances that could raise doubts about the independence and impartiality of an arbitrator are disclosed. This is good in itself. However, it is sometimes exaggerated when an arbitrator is expected to disclose for 20 years back which lawyers of the law firms representing the parties in the arbitration he has ever been in contact with and in which constellation. This can make things quite complicated and exposes arbitrators to an increased risk of being challenged later if the arbitration develops in a direction that no longer suits one of the parties. This can make arbitrators less brave in their actions. Yet the opposite is needed: steadfast courageous arbitrators!

None of them particularly stands out. However, one arbitration was very special, because of an episode at the evidentiary hearing. A witness for a respondent company, which had supplied electronic equipment for warships to a foreign state, was confronted with secret photographs by the brokerage agent during the proceedings. He should have returned the photographs immediately because of their confidentiality, but accidentally packed them in his briefcase as he left the hearing room. When the agent noticed this, he became very agitated and rushed out of the hearing room to catch up with the witness and take the photos back from him, which he succeeded in doing. Such an experience remains in one’s memory.

What challenges did you face Sources report a trend of arbiwhen setting up your own tration practitioners being practice? involved when contracts are Fortunately, the challenges were very drafted. How does this benefit manageable. On the one hand, I had parties in a contract? To what extent does the shift already been working mainly as an arbiI think this is a good development, which is towards virtual arbitration trator for many years, and on the other ultimately also in the interest of the parties influence counsel when it hand, I was very lucky with the organisation that conclude the contracts. The lawyers comes to selecting the geog- of my solo practice. My long-time assiswho negotiate the main content of the raphy of their arbitrator’s seat? tant joined me and supported me. And my contracts are usually not dispute resolution experts. Accordingly, too little attention is often paid to these clauses when drafting the contract (keyword: “midnight clauses”). Therefore, it can be very useful to have a dispute resolution specialist for these clauses. This is especially true if not simply a standard arbitration clause of an arbitral institution is to be used, but a tailor-made clause that provides for a more differentiated conflict resolution mechanism, possibly with a flexible combination of mediation and arbitration.

I have not seen a relevant impact on the selection of arbitrators so far. The fact that the arbitrators used to have to travel to venues abroad has never been a major cost driver in arbitration proceedings. That is why I do not expect any major changes in the future.

new practice is located in the same offices as those of two esteemed colleagues who have been running their practice as independent arbitrators for a couple of years. So, I could simply take over or copy a lot of things and continue my practice as an arbitrator seamlessly.

Looking back over your career, what is the most interesting arbitration you have been a part of?

I have been in numerous arbitrations involving exciting and complex legal issues.

Peers and clients say: “He is an arbitrator in demand and is super to work with” “He is an extremely good counsel, arbitrator and mediator, with very broad experience and good judgement” “Urs is a commercially minded arbitrator with a growing mediator profile” whoswholegal.com/thought-leaders

209

Jennifer Younan

Shearman & Sterling Paris www.shearman.com

jennifer.younan@shearman.com Tel: +33 1 53 89 48 04

Biography Jennifer Younan is a partner in Shearman & Sterling’s international arbitration and public international law practices. She has 20 years of experience advising and representing companies, state-owned entities and states in commercial and investment treaty arbitrations, with a focus on investment and energy disputes in emerging markets. Jennifer has notably participated in several of the largest international arbitrations, securing historic outcomes for the firm’s clients. She is admitted to practise in New South Wales (Australia), England and Wales and Paris.

210

Arbitrators & Counsel

Where did you start your legal career?

My first job, after law school, was as a law clerk to the Honourable Justice Michael Kirby AC CMG of the High Court of Australia. This was a formative experience in many ways: seeing the leading advocates at the time plead before the Court, being privy to the judges’ deliberations and working alongside a group of talented lawyers and support staff. However, what I retained above all from that year, thanks to Justice Kirby, was an appreciation of the impact of human rights and international law on domestic law, and the potential to bridge the divide between the two. This international outlook, and search for universal themes, has guided me ever since.

What attracted you to international arbitration?

A variety of factors: the international environment, with actors from diverse legal and cultural backgrounds; an interest in international law and politics; the creativity that the practice entails; the rigour that comes with working on high-stakes and challenging matters; and the opportunity for oral advocacy.

How has the market changed since you first started practising 20 years ago?

When I started, there were only a handful of law firms with dedicated international arbitration practices. Investment treaty arbitration was also nascent. All that has changed in the past 20 years. The market is much more competitive, with a diverse range of actors. Following its initial growth

spurt, investment treaty arbitration is also facing what some have called a legitimacy crisis.

Do you think the so-called legitimacy crisis could bring about the end of investment treaty arbitration?

One has to remember that investment treaty arbitration is still relatively young. While states began concluding investment agreements with investor state dispute settlement provisions in the late 1960s, investment treaty arbitration only really took off around the mid-1990s. The system is still developing, and while there are legitimate criticisms that need to be addressed, what we have seen in this relatively short period of time is that the system is capable of adapting to change.

What other trends do you see emerging?

There is an increased commitment to tackling climate change, with the European Union at the forefront of many of these changes. The energy transition, and the challenges associated with it, will inevitably generate further disputes. International arbitration has a unique role to play here, and it is important that, as practitioners, we anticipate and prepare for such change. This involves understanding not only the policies and regulations driving the transition, but also the economic and technical drivers.

On which types of matters are you most active at present?

across a range of sectors (energy, mining and metals, infrastructure, construction, media, aerospace, financial services, telecoms). I also advise on public international law issues (including the interpretation and application of treaties, territorial sovereignty, sanctions, state immunity, international human rights and international humanitarian law) and sit as arbitrator. My most active matters at present are Russian related and concern sanctions.

What has been your most memorable hearing to date?

Hearings are rarely uneventful. If I had to choose one, it would be the Yukos merits hearing. It was the culmination of seven years of hard work and I think the weight of the occasion inspired everyone to give their very best. When you’re living and breathing a case, it’s important at the hearing to be able to get out of the weeds of the case and look at it with fresh eyes. I enjoyed that challenge and, of course, the opportunity to plead at the Peace Palace in The Hague.

What advice would you give to someone starting out in arbitration?

I think it is important to have a good grounding in one (or more) domestic legal systems, and preferably international law, before specialising in international arbitration. To grasp the relationship between different legal systems, you need to start with a solid understanding of how each system works.

My practice is diverse, with a mixture of commercial and investment treaty cases

Peers and clients say: “I have always been impressed by her strategic way of thinking and knowledge of laws” “Jenny is an international leading lawyer in arbitration” “She is very precise, always to the point, has a very good memory” “She is very responsible and responsive” whoswholegal.com/thought-leaders

211

Karim A Youssef

Youssef & Partners Attorneys Cairo www.youssef.law

karim@youssef.law Tel: +202 374 99100

Biography Dr Karim A Youssef is the founder and chairman of Youssef & Partners. He heads the international arbitration and international law practices at the firm. His practice focuses on commercial arbitration, investment treaty arbitration and international law. Karim features as counsel, arbitrator and legal expert in some of the highest-profile, most prominent, and most complex commercial and investment treaty claims in the MENA region. He provides strategic advice to some of the region’s most powerful corporations across a wide array of industries and critical sectors. He also heads the firm’s high net-worth individuals practice.

212

Arbitrators & Counsel

What is your story with arbitration, and why did you choose it as a career?

My story with arbitration started in the summer of 1994. As a freshman making career choices, I went to meet with Professor Ahmed El-Kosheri. I desired to study law, and I was also determined not to do anything for a living that would be considered “ordinary” or “banal.” In that meeting, my question – “What is it to be an international arbitrator?” – the answer to that question unfolded in an hour or so. The grandiosity and mystical universe of international arbitration painted for me in that conversation sealed my fate. I knew what I wanted to do for a living, even before starting law school.

What is your core value in arbitration?

My core belief, and what defines who we are and what we do at Youssef & Partners, is cosmopolitanism. It is embedded in everything we do and part of the firm’s DNA. As I mentioned in my keynote speech at the ICC MENA Conference in February 2020, cosmopolitanism is my “big why” to do arbitration. I was always attracted to the idea of cosmopolitanism and being a citizen of the world. Once I started exploring international arbitration and my practice developed, I fell in love with the practice’s global, cosmopolitan universe. I realised what transpired in that original conversation with Kosheri – and what drove me to choose arbitration as a profession: it is the idea of cosmopolitanism. Cosmopolitanism is the big why for the arbitration system as a whole.

You played a significant role in Egypt’s Arab Spring arbitrations. Tell us more about that, and how has your practice changed in the past decade, following the events of the Arab Spring? I started practising arbitration outside of Egypt, in Paris and New York, and returned to Egypt at a critical moment for international arbitration in the region. It just so happened. I was starting my practice in Egypt at this fateful moment in time. The Arab Spring was

a transformative experience for Egypt and the MENA region, including in international arbitration. It brought a significant influx of disputes, particularly foreign investment disputes. I acted in one capacity or the other in many of these disputes. Today, as Egypt’s premier international arbitration practice, the firm’s global outreach is second to none in the region. We handle major local and international disputes and advise some of the world’s leading corporations across the MENA region, including in some of the most prominent cases to come out of the Arab Spring. We are also famous for brokering significant settlements for our clients in disputes with government entities.

73 per cent of lawyers at your firm are women, and 92 per cent are under 45. Why was it important to you to diversify your firm in this way? And what were the implications for the practice?

I am simply a firm believer in unlocking the potential of fantastic talent, whether youth or women. The impetus here is simple and goes how much I value mentorship and the importance I place on allowing brilliant talent to unleash itself. The Y&P team is young, dynamic and very inclusive because I believe in the power of investing in youthful ambition and talent, and mentorship is genuinely a centrepiece here. We also have the highest ratio of women lawyers in Egypt, the region, and I think globally. This results from our practical and functional approach to championing diversity and removing structural barriers to women’s and youth empowerment. My core belief is that genuine mentorship and removing these barriers for brilliant young and women practitioners to unleash their potential are a large part of what allows us to be an unbeatable machine – an explosive power force.

What qualities distinguish Youssef & Partners Attorneys from its competitors in the market?

For one thing, we’re very exclusive. We focus on the top layer of complex disputes

because I have found that this is where our machinery and modus operandi work best and maximise results. Our team prides itself on being unique and disruptive. We value merit and excellence beyond seniority and ranking, and we focus on our clients and – we win. These are principles that guide our practice, our success, and our position in the market. We do things differently in many ways.

What do you think the future of arbitration looks like in Egypt and the wider MENA region? Covid-19 and the post-pandemic new normal have accelerated and changed the answer to that question fundamentally. Arbitration will confirm its status as the default and natural system for settling commercial and international disputes, and will also become a very influential and pervasive dispute resolution mechanism for local disputes as well. Arbitration will also become more technological, more virtual, and the MENA’s arbitration hotspots, including Cairo, Dubai, and Abu Dhabi, would become top sites and regional arbitration centres, including the Cairo Center solidify their status as leading institutions.

What advice would you give to young and up-and-coming practitioners looking to make a name for themselves in international arbitration?

That’s always a tricky question, but it’s also the most important one. Today’s global arbitration is a very complex and evolved business. But I would say two things by way of advice. First: be ambitious and rediscover your abilities. Know where your strengths and weaknesses are and improve yourself in the genuine sense of the term, ie, win against yourself and constantly make yourself better. The other thing, which goes hand in hand: choose who you work with carefully – work only with, and around, those who empower you. Life is too short to be limited from within.

Peers and clients say: “Karim is highly responsive and extremely knowledgeable” “He is a leading expert in international arbitration in Egypt” “He is a leader in the field, especially in terms of strategic expertise and innovation of thinking” whoswholegal.com/thought-leaders

213

Gerold Zeiler

Zeiler Floyd Zadkovich Vienna zeilerfloydzad.com

gerold.zeiler@zeilerfloydzad.com Tel: +43 1 890 1087 80

Biography Gerold Zeiler is a partner at Zeiler Floyd Zadkovich and an expert in national and international dispute resolution, with a strong focus on international commercial arbitration and complex litigation. He is a graduate of the University of Vienna and the Washington University in St Louis. Gerold has published a comprehensive commentary on Austrian arbitration law (Schiedsverfahren, 2nd edition, 2014). In 2018, the ICC World Council appointed Gerold as the Austrian member of the ICC Court.

214

Arbitrators & Counsel

What do clients look for in an effective arbitrator?

Clients expect highly professional conduct of arbitration proceedings, which first requires arbitrators to familiarise themselves with the details of the case at an early stage of the proceedings. Parties expect efficiency in the structure of the proceedings, as well as flexibility on the arbitrators’ side. Throughout all stages of the arbitration, arbitrators must work precisely and to the point and be able to focus on essential issues rather than being side-tracked into procedural detours.

and other forms of alternative dispute resolution, I have also encountered clients that either had an inaccurate understanding of arbitration proceedings or were completely unaware of their existence. I, therefore, believe that arbitration practitioners play a vital role in informing clients and the public about the main features of arbitration. That being said, every dispute is unique and state courts can be a suitable forum for a variety of disputes – the key is to find the appropriate dispute resolution mechanism for each individual contractual relationship.

such as anonymised publications of arbitral awards. However, after all, confidentiality is an essential feature of arbitration, which is why I believe that there is no need for additional measures to increase the transparency of arbitration proceedings.

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

We have seen a steady increase in thirdparty funding that I believe will not stop anytime soon. Unsurprisingly, this development is also reflected in amendments to institutional arbitration rules, such as article 11(7) of the ICC arbitration rules 2021.

What are the advantages and In what ways is arbitration disadvantages of arbitration becoming greener? Do clients compared to litigation? also have a role to play in this The well-known advantages of arbitra- transformation? Why did you decide to set up tion compared to litigation are its confi- Arbitration is becoming greener in multiple your own firm? dentiality, generally speaking the overall length /speed of proceedings, the international competency and enforceability, and the main disadvantage would be the lack of appeal. Our firm recently published a comprehensive study in collaboration with the University of Vienna on Austrian businesses’ perceived strengths and weaknesses of arbitration or litigation when resolving their disputes, which is available on our firm’s website.

ways. First, and most pronounced, was the transformation we’ve seen over the past couple years, of hearings being held online as opposed to in-person. Minimising the flying necessary to attend hearings in person cuts back on CO2 emissions and much-wasted energy. Second, many procedures, filings and submissions are handled online, which cuts back substantially on paper waste.

While many international businesses are familiar with the advantages of arbitration

There are a lot of reasonable initiatives supporting transparency in arbitration,

To what extent should more How can clients be encouraged b e d o n e to i m p rov e t h e to pursue methods of alterna- transparency of arbitration tive dispute resolution? proceedings?

With the founding of zeiler.partners, which later evolved to what is now Zeiler Floyd Zadkovich, my partners and I had a strong history of working together, and with our collective experience and expertise, there was an opportunity to take our collaborations to the next level and build something of our own with a strong focus on dispute resolution. Looking back from now, I am very happy that we made that decision. The last eight years, since we started our own firm, have been very enriching and never dull. I have no doubt that these years are the personal highlights of my professional career so far.

Peers and clients say: “He is the undisputed number one arbitrator” “Gerold is an excellent arbitrator and counsel” “He has built an impressive practice in investor-state arbitrations” “He is highly experienced and highly regarded” whoswholegal.com/thought-leaders

215

Tobias Zuberbühler

Lustenberger + Partners KLG Zurich www.lplegal.ch

zuberbuehler@lplegal.ch Tel: +41 387 19 00

Biography Tobias Zuberbühler has over 20 years of experience in dispute resolution and has acted as arbitrator and counsel in more than 70 international and domestic arbitration proceedings under both ad hoc and institutional rules (ICC, Swiss Rules, DIS, CEPANI, VIAC, HKIAC). He has also rendered over 250 UDRP decisions as WIPO domain name panelist. Tobias is a member of the Arbitration Court of the Swiss Arbitration Centre and co-editor of the Commentary on the Swiss Rules of International Arbitration (2nd ed. 2013).

216

Arbitrators & Counsel

What is it about arbitration that How does your experience you enjoy most? assisting clients in a wide When something unexpected happens range of sectors enhance your during a witness hearing, and the release arbitration practice? How do of pressure at the end of a long hearing. you ensure you develop indepth sector knowledge? How does Lustenberger + Part- In-depth sector knowledge is developed ners distinguish itself from the with every new arbitration case as counsel competition? or arbitrator. While clients always look We are a partner-driven boutique, so clients can expect full commitment (and sufficient hours) on the ground by lead counsel, together with carefully selected associates who are not completely and constantly overworked. In other words, our teams will show up at the hearing not only ridiculously well prepared, but also with enough (physical and mental) strength to endure any challenges ahead.

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

The advantages do not only build on (technical) language skills, but on the corresponding exposure to other cultures. Almost everyone in arbitration is multilingual, but not all practitioners have lived a certain number of years in other countries. Personally, having lived seven years in the USA and two years in Belgium, I can probably connect better to clients from anywhere because they realise that I will be open to their own cultural sensitivities and may be able to communicate better than someone who has, eg, only left Switzerland for a one-year LLM.

for top specialists in a certain business field, they can also profit from knowledge in other areas. To give you an example, a client in the airline sector might profit from knowledge I have in airport construction, or also from experience in unrelated sectors (such as pharma distribution) in the relevant jurisdiction.

those “new” cities have become more active in recent years. Moreover, all European seats (together with some established seats in Asia such as Singapore, Hong Kong and Shanghai) will continue to compete against some hubs in geographically well-situated cities like Istanbul, Dubai, Seoul, Miami, San Francisco or Lagos. As long as the market is growing, however, I do not see this as a major problem for the established seats.

It is reported that there is a new generation of arbitrators emerging who are increasingly specialised. How does increased specialisation benefit the arbitration market and Sources report a trend of arbi- what are the potential pitfalls? tration practitioners being Truly specialised arbitrators will potentially involved when contracts are issue better decisions in less time, so the drafted. How does this benefit overall costs for the parties will tend to parties in a contract? decrease. On the other hand, the pool of With carefully drafted dispute resolution clauses, the parties will spend less (or no) money in the jurisdictional phase of a potential arbitration case.

experienced arbitrators in highly specialised fields (insurance, maritime law, etc) can be very small in certain jurisdictions, leading to an increase of conflicts and longer appointment procedures.

Do you envisage the emergence of any new arbitration seats What advice would you give that will rival those currently to someone starting out in most popular? arbitration? The traditional seats in Europe (London, Paris, Geneva, Zurich, Stockholm, Vienna) are facing more competition within Europe (Milano, Madrid, Barcelona, Brussels, Amsterdam, Edinburgh, Frankfurt, Munich, Hamburg) because the practitioners in

Leave your comfort zone, spend time abroad, try to find a job with an experienced mentor, watch carefully and do not forget your best friends and family. Easier said than done, I know.

Peers and clients say: “He is widely recognised for his excellent arbitration practice” “His arbitration experience is second to none”

whoswholegal.com/thought-leaders

217

Thought Leaders in Arbitration 2022 | Arbitrators & Counsel Argentina

María Inés Corrá, Bomchil Ignacio Javier Minorini Lima, Bruchou Fernandez Madero & Lombardi Guido Santiago Tawil, Independent Practitioner

Australia

Douglas Jones AO, Independent Arbitrator • Q&A Judith Levine, Levine Arbitration Sam Luttrell, Clifford Chance LLP Michael Pryles, Michael Pryles Arbitration and Mediation James Morrison, Peter & Kim • Q&A

Austria

Lisa Beisteiner, Zeiler Floyd Zadkovich • Q&A Anne-Karin Grill, AKG ADVISORY Florian Haugeneder, KNOETZL Günther J Horvath, Independent Practitioner Dr. Günther J. Horvath Rechtsanwalt GmbH Christian W Konrad, Konrad Partners • Q&A Andreas Reiner, ARP Stefan Riegler, Wolf Theiss Markus Schifferl, bpv Hügel Rechtsanwälte GmbH • Q&A Christoph Schreuer, Zeiler Floyd Zadkovich • Q&A Venus Valentina Wong, Wolf Theiss Gerold Zeiler, Zeiler Floyd Zadkovich • Q&A

Brazil

Adriana Braghetta, Adriana Braghetta Lawyers Eleonora Coelho, Eleonora Coelho Advogados Eduardo Damião Gonçalves, Mattos Filho Marcelo Roberto Ferro, Ferro Castro Neves Daltro & Gomide Advogados Valeria Galíndez, Galíndez Arb Lauro Gama, Lauro Gama Advogados Gilberto Giusti, Pinheiro Neto Advogados Renato Stephan Grion, Pinheiro Neto Advogados João Bosco Lee, Lee Taube Gabardo Sociedade de Advogados Pedro A Batista Martins, Batista Martins Advogados José Emilio Nunes Pinto, Jose Emilio Nunes Pinto Advogados

Brunei

Colin Ong QC, Dr Colin Ong Legal Services • Q&A

Canada Alberta

David R Haigh QC, Burnet Duckworth & Palmer LLP

British Columbia

Bahrain

Jan Paulsson, Independent

Henri Alvarez QC, Independent Arbitrator Gerald W Ghikas QC, Vancouver Arbitration Chambers

Belgium

Ontario

Niuscha Bassiri, Hanotiau & van den Berg • Q&A Olivier Caprasse, Caprasse Arbitration • Q&A Bernard Hanotiau, Hanotiau & van den Berg • Q&A Pascal Hollander, Hanotiau & van den Berg Jan Kleinheisterkamp, JK ADR Erica Stein, Dechert LLP Hans van Houtte, Van Houtte Partners BV

218

Vera van Houtte, Van Houtte Partners BV Albert Jan van den Berg, Hanotiau & van den Berg • Q&A

Directory | Arbitrators & Counsel

Ian Binnie CC QC, Lenczner Slaght J Brian Casey, Bay Street Chambers • Q&A Tina Cicchetti, Vancouver Arbitration Chambers & Arbitration Place John A M Judge, Arbitration Place J William Rowley QC, Independent Arbitrator Janet Walker CM, Toronto Arbitration Chambers • Q&A

Quebec

Pierre Bienvenu, Ad. E., Norton Rose Fulbright Canada LLP Stephen L Drymer, Woods LLP L Yves Fortier CC QC, Independent Arbitrator Fabien Gélinas, Ad E, FCIArb, McGill University Faculty of Law

Chile

Cristian Conejero Roos, Cuatrecasas Andrés Jana, Bofill Mir & Alvarez Jana Abogados Felipe Ossa G, Claro y Cia

China

Arthur (Xiao) Dong, JunHe LLP Arthur Ma, DaHui Lawyers • Q&A Ariel Ye, King & Wood Mallesons

Colombia

Claudia Benavides Galvis, Baker McKenzie Colombia SA • Q&A Estefanía Ponce Durán, Posse Herrera Ruiz Eduardo Zuleta, ZULETA Abogados Asociados SAS

Costa Rica

Andrea Hulbert, Hulbert Volio Montero

Czech Republic

Rostislav Pekař, Squire Patton Boggs s.r.o., advokátní kancelář

Ecuador

Juan Manuel Marchán-Maldonado, Pérez Bustamante & Ponce - PBP Javier Robalino Orellana, Robalino Law

Egypt

Mohamed S Abdel Wahab, Zulficar & Partners Law Firm • Q&A Karim A Youssef, Youssef & Partners Attorneys • Q&A

England

Lucas Bastin QC, Essex Court Chambers John Beechey CBE, Arbitration Chambers • Q&A

Juliet Blanch, Arbitration Chambers Gary B Born, WilmerHale Stavros Brekoulakis, 3 Verulam Buildings • Q&A Charles N Brower, Twenty Essex Chambers David Brynmor Thomas QC, 39 Essex Chambers Kate Cervantes-Knox, DLA Piper Philippa Charles, Stewarts Kate Davies, Allen & Overy LLP Jane Davies Evans, 3 Verulam Buildings Jean-Paul Dechamps, Dechamps International Law Zachary Douglas QC, Matrix Chambers Alejandro A Escobar, Baker Botts LLP Ania Farren, Omnia Strategy LLP Stephen Fietta, Fietta LLP Steven P Finizio, WilmerHale Louis Flannery QC, Mishcon de Reya James Freeman, Allen & Overy LLP Sarah Ganz, WilmerHale Matthew Gearing QC, Fountain Court Chambers Ben Giaretta, Fox Williams LLP Ian Glick QC, One Essex Court Peter Goldsmith QC, Debevoise & Plimpton LLP Lucy Greenwood, Greenwood Arbitration Christopher Harris QC, 3 Verulam Buildings • Q&A Hilary Heilbron QC, Brick Court Chambers Kaj Hobér, 3 Verulam Buildings Paula Hodges QC, Herbert Smith Freehills LLP Leonard Hoffmann QC, Brick Court Chambers Stephen Jagusch QC, Quinn Emanuel Urquhart & Sullivan UK LLP • Q&A Douglas Jones AO, Atkin Chambers Eva Kalnina, Arbitration Chambers Johannes Koepp, Baker Botts LLP Sophie Lamb QC, Latham & Watkins Toby Landau QC, Sole practitioner Daniel Levy, Enyo Law LLP Julian D M Lew QC, Twenty Essex Chambers Carmen Martinez Lopez, Three Crowns LLP Wendy J Miles QC, Twenty Essex Chambers Loukas Mistelis, Queen Mary University of London • Q&A

Reza Mohtashami QC, Three Crowns LLP Andy Moody, Baker McKenzie Salim Moollan QC, Brick Court Chambers Karyl Nairn QC, Skadden Arps Slate Meagher & Flom (UK) LLP Sophie Nappert, 3 Verulam Buildings Sylvia Noury, Freshfields Bruckhaus Deringer LLP Constantine Partasides QC, Three Crowns LLP Guy Pendell, CMS Cameron McKenna Nabarro Olswang LLP Peter J Rees QC, 39 Essex Chambers Klaus Reichert SC, Brick Court Chambers Samantha J Rowe, Debevoise & Plimpton LLP J William Rowley QC, Twenty Essex Chambers Philippe Sands QC, Matrix Chambers John Savage QC, King & Spalding International LLP Maxi Scherer, WilmerHale Franz Schwarz, WilmerHale • Q&A Audley Sheppard QC, Clifford Chance LLP Anthony Sinclair, Quinn Emanuel Urquhart & Sullivan UK LLP Joe Smouha QC, Essex Court Chambers Patrick Taylor, Debevoise & Plimpton LLP Gaetan Verhoosel QC, Three Crowns LLP Matthew Weiniger QC, Linklaters LLP Angeline Welsh, Essex Court Chambers Jacomijn J van Haersolte-van Hof, London Court of International Arbitration

Finland

Gisela Knuts, Roschier, Attorneys Ltd • Q&A Anna-Maria Tamminen, Hannes Snellman Attorneys Ltd Carita Wallgren-Lindholm, Lindholm Wallgren, Attorneys Ltd. • Q&A

France

Yas Banifatemi, Gaillard Banifatemi Shelbaya Disputes Eliseo Castineira, Castineira Law Independent Arbitrator • Q&A Thomas Clay, Clay Arbitration Nadia Darwazeh, Clyde & Co LLP

whoswholegal.com/thought-leaders

Yves Derains, Derains & Gharavi Carine Dupeyron, Darrois Villey Maillot Brochier • Q&A Raëd Fathallah, Bredin Prat José Ricardo Feris, Squire Patton Boggs Alexander Fessas, ICC International Court of Arbitration Julien Fouret, Eversheds Sutherland Jason Fry QC, Clifford Chance Europe LLP José-Manuel García Represa, Dechert LLP Hamid Gharavi, Derains & Gharavi Simon Greenberg, Clifford Chance Europe LLP Jacob Grierson, Asafo & Co Laurent Jaeger, King & Spalding International LLP Anna Joubin-Bret, Anna Joubin-Bret Dany Khayat, Mayer Brown Bart Legum, Honlet Legum Arbitration Carole Malinvaud, Gide Loyrette Nouel AARPI Fernando Mantilla-Serrano, Latham & Watkins Pierre Mayer, Mayer Greenberg • Q&A Isabelle Michou, Quinn Emanuel Urquhart & Sullivan LLP • Q&A Alexis Mourre, MGC Arbitration • Q&A Charles Nairac, White & Case LLP Michael Ostrove, DLA Piper Georgios Petrochilos, Three Crowns LLP Michael A Polkinghorne, White & Case LLP • Q&A Noah Rubins QC, Freshfields Bruckhaus Deringer LLP Christopher Seppälä, White & Case LLP Christophe Seraglini, Freshfields Bruckhaus Deringer LLP Eduardo Silva Romero, Dechert LLP Brigitte Stern, Université Paris I, Panthéon-Sorbonne Małgorzata Surdek-Janicka, ICC International Court of Arbitration Eric Teynier, Teynier Pic Todd Wetmore, Three Crowns LLP Jennifer Younan, Shearman & Sterling LLP • Q&A Roland Ziadé, Linklaters LLP Galina Zukova, ZUKOVA Legal

219

Annet van Hooft, van Hooft • Q&A Melanie van Leeuwen, Derains & Gharavi

Germany

Antje Baumann, BAUMANN Resolving Disputes • Q&A Klaus Peter Berger, University of Cologne Rouven F Bodenheimer, BODENHEIMER • Q&A Daniel Busse, Busse Disputes Karl-Heinz Böckstiegel, Prof K H Böckstiegel Siegfried H Elsing, Orrick Herrington & Sutcliffe LLP Ulrike Gantenberg, Gantenberg Dispute Experts • Q&A Inka Hanefeld, HANEFELD Richard Happ, Luther • Q&A Boris Kasolowsky, Freshfields Bruckhaus Deringer LLP Moritz Keller, Clifford Chance Partnerschaft mbB • Q&A Richard H Kreindler, Cleary Gottlieb Steen & Hamilton LLP Stefan Kröll, Prof Dr Stefan Kröll LLM Torsten Lörcher, CMS Germany Simon Manner, Manner Spangenberg Anna Masser, Allen & Overy LLP Jan Heiner Nedden, HANEFELD Karl Pörnbacher, Hogan Lovells International LLP Joerg Risse, Baker McKenzie Dorothee Ruckteschler, Dorothee Ruckteschler Dispute Resolution Klaus Michael Sachs, CMS Hasche Sigle Nils Schmidt-Ahrendts, HANEFELD Jan K Schäfer, King & Spalding LLP Jan Erik Spangenberg, Manner Spangenberg Rolf A Trittmann, rothorn legal Stephan Wilske, Gleiss Lutz

Hong Kong

Chiann Bao, Arbitration Chambers • Q&A Simon Chapman QC, Herbert Smith Freehills Justin D'Agostino, Herbert Smith Freehills Sarah Grimmer, Hong Kong International Arbitration Centre Neil Kaplan CBE QC SBS, Arbitration Chambers Michael J Moser, Twenty Essex Arbitrators May Tai, Herbert Smith Freehills

India

Rishab Gupta, Shardul Amarchand Mangaldas & Co

220

Directory | Arbitrators & Counsel

Tejas Karia, Shardul Amarchand Mangaldas & Co Promod Nair, Arista Chambers

Nigeria

Italy

Mikal Brøndmo, Advokatfirmaet Haavind AS

Massimo Benedettelli, ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello • Q&A Andrea Carlevaris, BonelliErede Cecilia Carrara, Legance Avvocati Associati • Q&A Michelangelo Cicogna, De Berti Jacchia Franchini Forlani Studio Legale • Q&A Luca Radicati di Brozolo, ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello Laurence Shore, BonelliErede

Japan

Lars Markert, Nishimura & Asahi Yoshimi Ohara, Nagashima Ohno & Tsunematsu Hiroyuki Tezuka, Nishimura & Asahi • Q&A

Korea

Kevin Kim, Peter & Kim • Q&A Hi-Taek Shin, Korean Commercial Arbitration Board (KCAB INTERNATIONAL) • Q&A Robert Wachter, Lee & Ko • Q&A

Lebanon

Nayla Comair-Obeid, Obeid & Partners • Q&A Ziad Obeid, Obeid & Partners • Q&A

Lithuania

Ramunas Audzevicius, Motieka & Audzevicius

Mexico

Cecilia Azar Manzur, Galicia Abogados, S.C. Kate Brown de Vejar, DLA Piper Gallastegui y Lozano Cecilia Flores Rueda, FloresRueda Abogados Francisco González de Cossío, González de Cossío Abogados SC Claus von Wobeser, Von Wobeser y Sierra SC • Q&A

Netherlands

Marnix Leijten, De Brauw Blackstone Westbroek NV Marieke van Hooijdonk, Allen & Overy LLP

Funke Adekoya SAN, AÉLEX • Q&A

Norway

Panama

Katherine González Arrocha, Independent Arbitrator

Peru

Alfredo Bullard, Bullard Falla Ezcurra+ • Q&A Huáscar Ezcurra, Bullard Falla Ezcurra+ • Q&A

Poland

Beata Gessel-Kalinowska vel Kalisz, Gessel Attorneys at Law • Q&A Wojciech Sadowski, Queritius

Portugal

Filipa Cansado Carvalho, FCCARB Sofia Martins, Miranda & Associados Pedro Metello de Nápoles, PLMJ Miguel de Almada, Cuatrecasas

Romania

Crenguta Leaua, Leaua Damcali Deaconu Paunescu – LDDP • Q&A Cosmin Vasile, Zamfirescu Racoţi Vasile & Partners • Q&A

Serbia

Milena Djordjevic, The University of Belgrade Faculty of Law

Singapore

David Bateson, 39 Essex Chambers • Q&A Lawrence Boo, The Arbitration Chambers Cavinder Bull SC, Drew & Napier LLC • Q&A Nils Eliasson, King & Spalding (Singapore) LLP • Q&A Judith Gill QC, GILL ARBITRATION SERVICES PTE. LTD Alastair Henderson, Herbert Smith Freehills LLP Brenda Horrigan, Brenda Horrigan Pte Ltd • Q&A Benjamin Hughes, Hughes Arbitration • Q&A Michael Hwang SC, Michael Hwang Chambers LLC

Swee Yen Koh SC, WongPartnership LLP Christopher Lau SC, Christopher Lau Steven Y. H. Lim, 39 Essex Chambers • Q&A Nicholas Lingard, Freshfields Bruckhaus Deringer Loretta Malintoppi, 39 Essex Chambers Andrew Pullen, Fountain Court Chambers Matthew Secomb, White & Case Pte Ltd Nish Shetty, Clifford Chance Davinder Singh SC, DAVINDER SINGH CHAMBERS LLC • Q&A Alvin Yeo SC, WongPartnership LLP

Spain

David Arias, Herbert Smith Freehills José Antonio Caínzos, Jose Antonio Cainzos LDR Bernardo M Cremades, B Cremades & Asociados Juan Fernández-Armesto, Armesto & Asociados Carlos González-Bueno, GonzálezBueno SLP Elena Gutiérrez García de Cortázar, Independent Arbitrator Clifford J. Hendel, HENDEL IDR • Q&A Deva Villanúa, Armesto & Asociados

Sweden

Pontus Ewerlöf, Hannes Snellman Attorneys Ltd • Q&A James Hope, Advokatfirman Vinge • Q&A Kristoffer Löf, Mannheimer Swartling Robin Oldenstam, Mannheimer Swartling Jakob Ragnwaldh, Mannheimer Swartling Patricia Shaughnessy, Stockholm University

Switzerland Geneva

Diana Akikol, Walder Wyss Ltd Domitille Baizeau, LALIVE Sébastien Besson, Lévy Kaufmann-Kohler Bernd Ehle, LALIVE Xavier Favre-Bulle, Lenz & Staehelin • Q&A Elliott Geisinger, Schellenberg Wittmer Teresa Giovannini, LALIVE Pierre-Yves Gunter, Bär & Karrer Ltd • Q&A Veijo Heiskanen, LALIVE Alexandra C Johnson, Bär & Karrer Ltd • Q&A Gabrielle Kaufmann-Kohler, Lévy Kaufmann-Kohler Joachim Knoll, LALIVE Laurent Lévy, Lévy Kaufmann-Kohler Jean Marguerat, MLL Legal • Q&A

Paolo Michele Patocchi, Patocchi & Marzolini Wolfgang Peter, Peter & Kim • Q&A Philippe Pinsolle, Quinn Emanuel Urquhart & Sullivan LLP • Q&A Charles Poncet, Poncet Sarl Noradèle Radjai, LALIVE David Roney, Sidley Austin LLP Matthias Scherer, LALIVE Anne Véronique Schlaepfer, White & Case SA Michael E Schneider, LALIVE Dorothee Schramm, Sidley Austin LLP Pierre Tercier, Peter & Kim • Q&A

Zurich

Manuel Arroyo, Eversheds Sutherland • Q&A Martin Bernet, Bernet Arbitration / Dispute Management Christopher Boog, Schellenberg Wittmer Felix Dasser, Homburger Sandra De Vito Bieri, Bratschi AG • Q&A Harold Frey, Lenz & Staehelin • Q&A Simon Gabriel, Gabriel Arbitration AG • Q&A Balz Gross, Homburger Philipp Habegger, Habegger Arbitration Daniel Hochstrasser, Bär & Karrer Ltd • Q&A Nadja Jaisli Kull, Bär & Karrer Ltd • Q&A Melissa Magliana, LALIVE Andrea Meier, Walder Wyss Ltd Florian Mohs, Pestalozzi Gabrielle Nater-Bass, Homburger Nathalie Voser, rothorn legal Ltd. Urs Weber-Stecher, Independent Arbitrator • Q&A Tobias Zuberbühler, Lustenberger Rechtsanwälte KLG • Q&A Georg von Segesser, von Segesser Law Offices

Turkey

Ziya Akinci, Akinci Law Office

Ukraine

Olexander Droug, Sayenko Kharenko Olena Perepelynska, INTEGRITES

United Arab Emirates

Essam Al Tamimi, Al Tamimi & Company Adrian Cole, Independent Arbitrator • Q&A Alec Emmerson, ADR Management Consultancies

whoswholegal.com/thought-leaders

Erin Miller Rankin, Freshfields Bruckhaus Deringer LLP Jonathan Sutcliffe, K&L Gates LLP • Q&A Sami Tannous, Freshfields Bruckhaus Deringer LLP

Uruguay

Sandra González, Ferrere Abogados

USA

District of Columbia

Stanimir A Alexandrov, Independent Arbitrator Nigel Blackaby QC, Freshfields Bruckhaus Deringer US LLP Paolo Di Rosa, Arnold & Porter Gonzalo Flores, World Bank's International Centre for Settlement of Investment Disputes Claudia Frutos-Peterson, Curtis Mallet-Prevost Colt & Mosle LLP Gaela K Gehring Flores, Allen & Overy LLP • Q&A Horacio A Grigera Naón, International Arbitrator Mark Kantor, Independent Arbitrator Meg Kinnear, World Bank's International Centre for Settlement of Investment Disputes Carolyn B Lamm, White & Case LLP • Q&A Andrea J Menaker, White & Case LLP Patrick W Pearsall, Allen & Overy LLP • Q&A Caroline S Richard, Freshfields Bruckhaus Deringer US LLP Abby Cohen Smutny, White & Case LLP John M Townsend, Hughes Hubbard & Reed LLP Anne Marie Whitesell, Georgetown University Law Center

Florida

José I Astigarraga, Reed Smith LLP

New York

Catherine M Amirfar, Debevoise & Plimpton LLP George A Bermann, Columbia University School of Law • Q&A Henry G "Harry" Burnett, King & Spalding LLP Julie Bédard, Skadden Arps Slate Meagher & Flom LLP James H Carter, Independent Arbitrator • Q&A

221

Stephanie Cohen, Independent Arbitrator • Q&A Donald Francis Donovan, Debevoise & Plimpton LLP Kabir Duggal, Arnold & Porter • Q&A Hagit M Elul, Hughes Hubbard & Reed LLP John Fellas, Fellas Arbitration Franco Ferrari, New York University School of Law Paul Friedland, White & Case LLP Mark W Friedman, Debevoise & Plimpton LLP Grant Hanessian, Hanessian ADR, LLC • Q&A Samaa Haridi, King & Spalding LLP Mélida N Hodgson, Arnold & Porter James Hosking, Chaffetz Lindsey LLP Jean Kalicki, Arbitration Chambers

222

Directory | Arbitrators & Counsel

Edward Kehoe, King & Spalding LLP Louis B Kimmelman, Kimmelman Arbitration • Q&A D Brian King, Independent Arbitrator Yasmine Lahlou, Chaffetz Lindsey LLP Christian Leathley, Herbert Smith Freehills New York LLP David M Lindsey, Chaffetz Lindsey LLP Ben Love, Boies Schiller Flexner LLP Dana MacGrath, MacGrath Arbitration • Q&A Noiana Marigo, Freshfields Bruckhaus Deringer US LLP Caline Mouawad, Chaffetz Lindsey LLP Joseph E Neuhaus, Sullivan & Cromwell LLP John V H Pierce, WilmerHale • Q&A Ina C Popova, Debevoise & Plimpton LLP

Dietmar W Prager, Debevoise & Plimpton LLP Lucy Reed, Arbitration Chambers Natalie L Reid, Debevoise & Plimpton LLP David W Rivkin, Debevoise & Plimpton LLP Aníbal Martín Sabater, Chaffetz Lindsey LLP Claudia T Salomon, SalomonArbitration Ank A Santens, White & Case LLP Eric Schwartz, Schwartz Arbitration • Q&A Edna Sussman, SussmanADR LLC

Texas

R Doak Bishop, King & Spalding LLP

THOUGHT LEADERS

Arbitration 2022

Expert Witnesses

Mike Allen

Secretariat Advisors, LLC Hong Kong www.secretariat-intl.com

mallen@secretariat-intl.com Tel: +852 2979 2200

Biography Mike is a chartered quantity surveyor who has over 35 years of experience in the industry and has worked internationally for many years, with the past 20 years being based full-time in Hong Kong. He has extensive experience in procurement and contract strategy, dispute resolution and providing strategic advice to clients on distressed or problem projects. He acts as a quantum expert witness on a number of construction disputes, for both claimant and respondent, working with major firms of solicitors and barristers.

224

Expert Witnesses

What led you to become an expert in international arbitration?

My first case was predominantly a feature of circumstances, where I had been working as an expert advisor on a large infrastructure project and the closer we progressed to the need to prepare an expert report, the barrister on the case encouraged me to be the quantum expert. I was told, “don’t worry” 90% of all cases settle before a hearing and yet I subsequently found myself three reports later and two joint statements giving evidence in a four week hearing in front of HHJ James Fox-Andrews QC. It was a fascinating experience, and to be honest not one that I was sure I wanted to experience again. However, on the Monday morning after the case concluded on the Friday of the previous week, I was contacted by the adverse parties solicitors to enquire about taking instructions on a new matter. Following experience in the UK domestic arbitration, I then progressed to working on matters in Europe and then further afield in the Middle East. This continued on a visiting basis of undertaking international arbitration, until in early 2003 I relocated full time to Hong Kong and have been undertaking both domestic arbitration and international arbitrations from the Hong Kong base.

How do you effectively prepare for a testifying case?

In the first instance one must assume that every matter you are instructed on will proceed to a hearing, which then means that preparing to testify would require a robust series of reports that address the issues of the case. Following this using the opportunity within the expert meetings to compile a helpful joint statement that addresses the issues for the tribunal, is a very important next step after the production of your reports. Closer to the hearing, this will require the expert to work closely with counsel in considering the issues to be tested under cross examination. This does require careful scrutiny and is a critical part of preparing to testify. There are some other key activities that I undertake, but aside from that there is no doubt that providing

clear and helpful evidence is likely to be a product of some very thorough and considered preparation.

More often than not, I do believe that the use of “hot-tubbing” of evidence is a helpful way for the tribunal to hear the testimony of respective experts.

What are the best ways of remaining impartial and inde- Looking back over your career, pendent when providing analy- what is the most memorable sis and testimony? arbitration you have been a I don’t believe that there is a single part of? component to this, but I have found that by applying a combination of carefully listening to the question, answering the question in a helpful way as well as providing context to any of your answers helps. Making sure you provide the right context or assumption to any answer is also an important component, and above all else you need to continue to be aware that your duty is to assist the tribunal and so any answers must be directed towards the tribunal and do exactly that.

What is the key to succeeding as an expert across multiple arbitration institutions and courts in a wide range of jurisdictions?

You need to carefully consider your instructions and letter of engagement in the first instance, as these will likely set out any procedural or arbitral requirements. In addition to this a careful understanding is required of the jurisdictional requirements of the expert evidence, such that your duty, any protocols, report requirements, expert meeting process and conduct and the related joint statement will be set out. On the occasion that you are unsure of any of this, then I seek instructions to avoid any surprises.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why?

Whilst it is not something that any expert I assume would typically enjoy, I am not sure that anything requires changing, as the objective is to test your evidence and credibility of your opinions. This can only be undertaken by some form of cross examination, but I do find that some counsel are more effective at putting forward questions more succinctly.

whoswholegal.com/thought-leaders

I have had many memorable moments and some of those are for positive and negative reasons, albeit each hearing gives you a learning opportunity, and I must say you really do never stop learning. I also believe that you need to be willing to expect and accept the unexpected as there has been something that has materialised in every single arbitration I have been involved in. I have had experiences where on the morning of the hearing the other side have decided not to call me to testify, to an opposing expert not turning up to the hearing, another falling ill and having to withdraw and go to hospital. However, I do consider that your first arbitration is something that always has a special place in your memories and hopefully for the right reasons.

What underrated skills would you encourage the up-andcoming generation of arbitration professionals to develop?

I believe that many developing experts might consider that to become the best quantum expert, you must excel at being the best professional in that discipline. Of course, that it is a very important component, however in my experience the most important part is to develop what I have heard called “ring-craft”. This is to make sure that you fully understand the process, your duty and how to properly discharge this duty. It does appear to me that it’s not generally opposing expert opinions that cause differences but normally some other aspect that might be caused by a failure in the process. Therefore, to assist an up-and-coming expert, I would strongly recommend that taking the time to be mentored by a seasoned expert is a critical part of the development process of an expert.

225

What has been your greatest achievement to date?

From a professional perspective I would have to say that it’s a combination of achievements. Which are in no particular order, becoming a fellow of the various professional bodies that I am associated

with, being appointed by leading law firms and working with some of the leading barristers on some of the largest and most complex international arbitrations. This has meant that I have and continue to work with some wonderful people, who are extremely talented in their chosen

profession. Amongst all else I’d have to say that being recognised in WWL by your peers, lawyers and clients is a flattering reflection of my colleagues and myself and I hope to continue to meet and exceed our clients’ expectations.

Peers and clients say: “Mike is very experienced in court appearances, as well as producing quality expert reports” “He is thorough and hardworking, with great attention to detail” “He is able to navigate through complex issues and boil them down to key points” 226

Expert Witnesses

The world’s best consulting experts…

...all in one place. Online August 2022  @whoswholegal

 whoswholegal.com

 Who’s Who Legal

Neil Ashton

StoneTurn

London www.stoneturn.com nashton@stoneturn.com Tel: +44 7947 959148

Biography Neil Ashton is a partner in StoneTurn’s London office and has approximately 25 years of experience working in practice, in industry and in expert witness and litigation support work. He is a chartered accountant and focuses on quantification of damages in complex business disputes. Neil is commonly involved in claims for breach of contract and in postacquisition disputes and contentious business valuations. He also has significant experience in matters involving major business interruptions.

228

Expert Witnesses

How has the dynamic between arbitral tribunals and experts changed over the years?

It is difficult to make generalisations as so much depends on the individual arbitrator or members of the arbitral tribunal. That said, it is probably fair to say that tribunals have – rightly – become more demanding of experts and have started to show some greater willingness to engage with technical expert issues. As a quantum expert in particular, I have in the past been used to evidence being squeezed into the final few hours of a long hearing; however, I sense that this is perhaps happening less and the process is being better managed. Whether the increasing use of tools such as opening presentations and witness conferencing has helped in allowing arbitrators to engage with the detail of expert evidence is an interesting question. Such tools can cut either way and it really depends on the way in which these are used (or abused) in practice by the arbitrator(s).

What advantages accompany introducing experts early in the disputes process?

While it may appear somewhat selfserving, getting involved early is a mantra that most experts never tire of repeating to clients and lawyers (albeit they in turn may tire of us saying it!). Advantages include: • Timely identification of areas of strength and weakness in a client’s position as it relates to quantum and what this means for the overall case strategy. • Consequent weeding out of weaker elements of a claim that may ‘infect’ other (stronger) elements and avoiding the risk of entrenching such weaker points early in proceedings. • Understanding those areas of the claim which may require significant resources and time and/or particular focus in terms of further information gathering. • Identifying up front documents and information that will need to be preserved. • An old chestnut for a quantum expert: identifying overlaps and doublecounting between different potential heads of loss. These advantages are generally more immediately applicable when instructed

whoswholegal.com/thought-leaders

on the claimant side. However, on the respondent side, it can be equally beneficial to be instructed at an early stage. This may be as simple as being sure that the expert is in a position to pick up a claimant’s expert report as soon as it is filed: I have experienced cases where weeks of time have effectively been lost due to delays in getting instructions. Another noteworthy aspect on the respondent side, is having sufficient time to develop and work on any counterclaims available to the client. Analysing and developing counterclaims can be more complex to deal with than the claimant’s claim, so leaving such matters to the last minute can create major headaches. Of course, there may be a perceived downside on the part of clients and legal teams relating to the cost of involving experts early and that is always going to be an important consideration. However, for the reasons set out above, such concerns may be outweighed by the arguments in favour, especially in more complex cases.

S o m e p r a c t i t i o n e rs h av e argued that tribunals should demand more of quantum experts in reaching a consensus on the outcome value. To what extent do you share this view?

Sometimes the assumptions that different experts are instructed to adopt make reaching direct agreement difficult. That said, in many situations experts should at least be able to agree on the value outcome (and each other’s maths) under different assumption scenarios. That must be helpful for the process and something the arbitral tribunal should reasonably expect, where appropriate. Otherwise, I am not sure it is the job of a tribunal to ‘demand’ that experts reach a consensus, or more of a consensus. After all, the experts’ job is to give their independent view and, if this means that there is little or no consensus, then so be it. Nonetheless, it is clearly beneficial if the experts are in a position to reach agreement on relevant issues, where possible. To that end, it is important that experts are open to such consensus and use the expert meeting and joint report process constructively. Sometimes this means putting egos aside, which does not necessarily play to all experts’ strengths!

229

How do you effectively prepare for cross-examination and/or hot-tubbing?

To state the obvious, the key starting point is knowing your report(s) and the supporting detail. Being able to identify questions under cross-examination which contradict or maybe twist what you have said on the record is a key skill. Similarly, knowing your report inside-out can provide an anchor such that questions can be answered by referring back to specific paragraphs or analyses. In certain cases, preparation can be streamlined where there has been a joint expert report and certain issues already agreed. That can really help. An example to the contrary: I recently gave evidence in a case where the opposing side decided not to serve expert evidence in response to my report, but they still chose to

cross-examine me. While I was starting from a position of strength in some ways, the absence of any opportunity to discuss and agree aspects of my report with another expert meant that I had to be ready for questions on any aspects. Given the complexity of the report and voluminous financial data involved, it did not make for a particularly time-efficient process.

Do you have any tips for counsel on how to use an expert team effectively?

Simply to involve us consistently through the process, including keeping us informed as regards changes to timetables and such like. That way, we are in the best position to assist at every stage. As quantum experts we recognise that we sometimes only get to see the tip of the iceberg in terms of all the issues being

dealt with in a case. That said, we really notice when a counsel team involves us and ensures we are kept in the picture regarding any issues that may affect our evidence or quantum issues in general. And it’s not all just about our report(s), but also how we can input in other areas such as upfront strategic issues, document production requests, preparation for hearing etc. Picking up on the latter point, we can (and want to) assist counsel prepare effectively for the cross-examination of the other side’s expert, but this is often not done or lip service is paid to it. There is little more frustrating as an expert than to see an opposing expert being allowed to side-step or completely avoid key issues that could have been addressed effectively with a little more up-front communication.

Peers and clients say: “Neil is extremely rigorous and thorough in his approach” “I felt confident that he had considered all material facts and issues in our case” “He is solution oriented, and not only good on paper as he can support his views under crossexamination” 230

Expert Witnesses

SUBSCRIPTION OFFERING THE LEADING RESOURCE ON INTERNATIONAL ARBITRATION NEWS AND COMMUNITY INTELLIGENCE

SUBSCRIPTION BENEFITS

Stay ahead with our daily international arbitration news and analysis

GAR provides in-depth reports of the latest developments in both commercial and investment arbitration.

Find top global arbitration practices worldwide

GAR identifies the top law firms and their achievements in the GAR 100, our annually updated guide to approved international arbitration firms.

Work smarter with focused insight

Receive a series of guides, regional reviews and know-how products written by the best practitioners around the globe.

Stay in touch with the community

Learn of the latest counsel moves, hires, promotions challenges and gossip within the arbitration community.

Keep informed with our conference coverage

Hear the latest trends and thought leadership with reports from all major conferences as well as our own.

Get unique insight with GAR’s Arbitrator Research Tool (ART)

ART makes arbitrator research quicker, easier and more inspired. Giving insight unavailable elsewhere, and updated weekly, ART is a unique database of arbitrators that also allows you to research their approach and find eyewitnesses who have seen them in action recently.

Find out more

subscriptions@globalarbitrationreview.com +44 20 3780 4194 www.globalarbitrationreview.com Operating hours: 9am till 6pm GMT

Bruno Augustin

Kroll

London Kroll.com bruno.augustin@kroll.com Tel: +44 20 3096 6663

Biography Bruno Augustin is a managing director in the expert services practice, based in the London office. He is a chartered accountant with over 20 years of experience working as a forensic accountant. He has received a number of expert appointments and worked on over 80 cases covering a wide range of sectors, forums and jurisdictions. Prior to joining Kroll, Bruno was a partner at Haberman Ilett, which was acquired by Kroll in 2020.

232

Expert Witnesses

Name one of your most memo- How has your previous appointrable cases. ment as expert adjudicator It was an ICC arbitration between a defence enhanced your practice? contractor and a state about unpaid amounts for defence equipment that was never delivered. One of the questions was, to what extent was any amount payable for work done before the contract was terminated. It was complicated by the fact that the events occurred over 25 years ago so we had the challenge of making sense from a lack of available evidence. It was enjoyable also to spend time with a group of retired engineers who had been brought back to help compile evidence for the claim.

It has given me a different perspective on what a judge or tribunal looks for in submissions by the parties. A good judge will always do his or her homework beforehand, and often concentrates on one or two key points that would determine a judgment. As an expert, my task is to try and identify those key points, anticipating what the judge needs and ensure that it is covered in my report.

Being independent, a good leader and communicator. Not afraid to back your own convictions even when faced with criticism, while at the same time being sufficiently flexible to change your direction when the situation requires it.

increasingly taken charge of the proceedings themselves and tend to refer to experts mainly to cover areas they truly don’t understand. Therefore, the tribunal is likely to gravitate more to the expert it thinks is the most helpful in enhancing their understanding of the matter in hand.

How has the dynamic between arbitral tribunals and experts In your experience, what are changed over the years? some of the most impor- I think the tribunals have become more tant attributes of an effective circumspect about experts whom they expert? view as less than independent. They have

What are some of the key processes you undertake when What challenges do practiresolving complex damages tioners face with the increased quantification? volume of data being used in Breaking it down into more manage- disputes, and how are you naviable components, and then dealing with gating them? each one in turn until the full calculation emerges. All this while always keeping in mind the bigger picture of what you want to achieve.

computer programs to compile, sort and analyse data in a way that helps them make sense of it all. The key is to keep it as simple as you can even in the midst of a complex range of evidence – concentrate on the few key inferences that can be made from your analysis. We also have employed teams of expert data analysts to support us when the need arises.

What challenges do hybrid hearings present from an impartiality standpoint? Hybrid hearings emerged in a large way during the pandemic and are here to stay. I think they are a good thing and provide greater flexibility as to how hearings are held, without the need to run up huge travel costs to get everyone to the hearing venue. There are occasional technical glitches and challenges with instant communication between team members, but I don’t see that this affects impartiality in any way.

What advice would you give to younger practitioners hoping to one day be in your position? Just be prepared to listen and learn throughout your career, have the courage of your convictions and don’t be afraid to back your honest view, even if you are out on a limb at times. And most of all, make sure you enjoy it!

There is no doubt that big data has played an increasing role in determining disputes over the past decade. Practitioners have had to employ more sophisticated

Peers and clients say: “Bruno is extremely hardworking, efficient and insightful in his work” “He has an excellent grasp of the expert witness process” “Bruno always meets deadlines and produces high-quality reports” whoswholegal.com/thought-leaders

233

Daniela Bambaci

Berkeley Research Group New York and Buenos Aires www.thinkbrg.com dbambaci@thinkbrg.com Tel: +54 911 5466 1430

Biography An economist, Daniela Bambaci provides expert testimony in matters involving valuation, damages and regulatory opinions. She has been involved in over 25 international arbitration treaty and commercial cases, including various prominent arbitrations involving treaty claims against Argentina, Bolivia, Canada, Ecuador, Egypt, El Salvador, Kenya, Hungary, Senegal, Trinidad & Tobago, the US and Venezuela.

234

Expert Witnesses

What challenges do you face with the increased volume of data being used in disputes? I would say that it presents an opportunity rather than a challenge. The increased volume of data allows us to make more accurate and better-supported assessments!

To what extent has covid-19 affected valuations?

It is too soon to understand the full extent of covid-19’s impact on valuations, which will differ on a case-by case basis and be very industry and country-specific. When making fair market value assessments we base our valuation on long-term expectations and isolate the factors that may temporarily affect the value of an asset. I expect that some of the covid-19 effects are temporary in nature, therefore we will have to identify and make adjustments to the valuations where necessary.

How do you effectively prepare for a cross-examination and/or hot-tubbing during arbitration proceedings? In preparation for cross-examination and hot-tubbing I focus on the best ways to convey our assessment to the tribunal in the most intuitive way. To do this I review the full case record and practice explaining how the documents and evidence fit into our assessment.

In a way, because our immediate team is spread out geographically between Buenos Aires, New York, San Diego, Chicago and Boston, and as we work closely with colleagues across EMEA and Asia-Pacific too, we were already used to working virtually. However, moving to an exclusively virtual environment has required further adjustments to replace the interactions that occurred naturally face to face. We began to hold more virtual meetings, both social and related to specific topics, conversations and projects so that the team could share their knowledge as well as their experiences. On the positive side, virtual meetings have allowed for more interaction between offices. The same applies to our clients, who, as with our team, are spread across many regions. I would say that virtual working allows for more frequent client interaction because it is less costly in time and money than travelling, however, interactions are shorter and more targeted to specific issues. I look forward to maintaining the advantages of more simple and frequent virtual interaction but recovering the valuable face-to-face contact too.

time and some guidance on which is the best software to use.

What has been your most interesting case to date, and why?

This is a hard one! What I love about arbitration is that each case is different and therefore interesting in its own way: they all have something that makes them unique and appealing. Even the different stages of each case are fascinating. For example, in cases where we act as the claimant’s experts, in the initial stage we think of the case as a puzzle to solve, understanding what the claims are, how have they impacted the asset and how that impact can be quantified. In the second instance we carefully analyse the arguments from the respondent’s experts to understand where we need to make adjustments to our assessment or where we need to explain why no adjustment is necessary. Finally, the hearing is where we get the opportunity to explain our assessment to the tribunal. In all instances, besides doing the complex analysis, we also need to explain it in a compelling way and support it with the evidence.

What do you most enjoy about What further steps can be your role as a testifying expert? taken to ensure that arbitra- I mostly enjoy thinking about, and crafting, tion professionals are more my arguments. As I explained previously, comfortable using arbitration all instances and cases are interesting and hosting platforms and other there is always something new to learn and What challenges and opportu- technology increasingly used explore. nities does virtual working pre- in proceedings? sent to networking and training I believe this will happen naturally as their arbitration experts? use becomes more frequent and we all get As you say, virtual working has brought both opportunities and challenges.

more comfortable with the technology. I find it necessary to have support in real

Peers and clients say: “Daniela has the gift of being able to explain very complex issues in simple terms” “She is a great testifying expert” “She is thorough and very detail-oriented” whoswholegal.com/thought-leaders

235

David Barry

Kroll

London www.kroll.com david.barry@kroll.com Tel: +44 20 7836 0158

Biography David Barry is one of the world’s pre-eminent construction experts, and he was named Who’s Who Legal’s Construction Expert of the year in both 2020 and 2018. He is very highly regarded as both a construction management and delay expert, and is renowned for his independence and integrity. David has over 30 years of programme, project and construction management experience, spanning a wide range of industries that include major civil, commercial, environmental, industrial, institutional, process and energy works.

236

Expert Witnesses

Describe your career to date.

Educated in Ireland where I qualified as a quantity surveyor, I quickly switched my focus to project management. I moved to New York after graduation and worked on a variety of large-scale projects in many different roles, including construction manager, project manager and planner. In 1995 I was transferred to London to head up the European division of a major US construction management business. In 1999, I co-founded consulting company Precept, which provided project management and project finance consulting services. From this point forward, I became more involved in the delivery of independent expert witness services on project management and/or scheduling matters, all the while maintaining my involvement in live projects. Precept was acquired in 2006 by a large US practice. In 2008 I completed a graduate diploma in law. In 2009, I founded Blackrock.

What motivated you to focus your practice on the construction sector? The practical and physical aspects of this industry really appealed to me, and I was fascinated by the intersection of construction technology and management sciences.

means that the riddles can be solved. Happily, on the regressive side, the industry has moved significantly away from the “dark arts”-type theoretical delay analyses which dominated in the 1990s and 2000s.

What are the main challenges currently facing experts when conducting concurrent delay analyses? Semantics. In particular, whether an activity and/or event needs to be on the critical path(s) to be treated as concurrent.

In your opinion, are dispute adjudication boards the future of construction disputes?

They are one of several very useful dispute resolution tools that the industry has available to it. They don’t suit every circumstance but can be very effective in some of the larger-scale and more complex projects. I definitely think one great advantage of the DAB system is the presence of significant technical experience and skills on the panel to complement the obviously necessary legal skills. Another advantage is the earlier intervention that is promoted by the DAB process.

What qualities make for a good expert witness in the construcHow has the role of construction industry? tion experts evolved since you High technical competence, integrity, dilientered the market? gence and the ability to communicate. The two biggest changes relate to technology, one progressive and one regressive. On the progressive side, the volumes and types of data, as well as the tools with which to organise and analyse such information, have increased exponentially. This usually

What advice would you give to younger experts who hope one day to be in your position?

Collect experience, be curious and never compromise on your independence.

Peers and clients say: “Remains the best delay expert on the international arbitration circuit” “He is second to none and great under cross examination” “From delay analysis perspective he is absolutely the leading professional” “Excellent construction disputes expert” whoswholegal.com/thought-leaders

237

Braden Billiet

FTI Consulting

Seoul www.fticonsulting.com braden.billiet@fticonsulting.com Tel: +82 10 2191 8550

Biography Braden is a senior managing director at FTI Consulting, where he has led the economic and financial consulting practice in Korea since 2017. He specialises in valuation and the assessment of complex damages in cases of litigation and international arbitration, and has been appointed in a wide range of cases across a wide range of industries. He is a CFA charterholder, a CAIA charterholder, a CVA charterholder and a member of CIArb.

238

Expert Witnesses

The views expressed herein are those of the author and not necessarily the views of FTI Consulting, Inc, its management, its subsidiaries, its affiliates, or its other professionals.

What are the advantages and disadvantages of having a global practice?

FTI has a strong global footprint, which comes with many advantages for our international arbitration team. For one, we are close to our clients in their local markets – including in Seoul, Hong Kong, Singapore, Delhi and Mumbai within Asia – and have the cultural know-how and language skills to, for example, attend meetings and review documents without the need for translations. The only disadvantage I can think of is in the form of an increased coordination burden, but I think we are good at working together across offices and time zones – particularly now, having become more adept at remote working during the pandemic.

What motivated you to pursue a career as a damages expert?

I was working on a master’s degree in finance when I first learned about this career path. At that time, I had been planning to pursue a PhD and, eventually, a career as an academic, but I was drawn to the fact that this role incorporates elements of academic work (rigorous research and analysis, intellectual debate, etc.) while having a more immediate, ‘real-world’ impact by helping governments, companies and individuals resolve high-stakes disputes. What I enjoy most is the variety of cases we see (both in issues and industries) and the challenge in studying something complex and then stepping back and explaining it in a way that is easy to understand.

How has the dynamic between arbitral tribunals and experts changed since you first started practising?

In recent years, I have seen many tribunals take a more hands-on approach to damages than what was common in the past, including by leading witness conferencing sessions during hearings and by working with the experts after hearings to

get the specific calculations that they want, having heard all the evidence. Developments that improve communication between tribunals and experts and allow experts to address the issues that tribunals are interested in (such as these) are important, given that the expert’s role in the process is to assist the tribunal.

How is covid-19 affecting the damage calculations experts can conduct at this time, and how are you adapting to these changes? Covid-19 has not affected the calculations we can conduct (we still run the same calculations, using the same toolkit of valuation approaches), but it can be an important factor affecting our conclusions. Thus, amongst other things, it has put an increased focus on the appropriate date of assessment of loss and the relevance of subsequent events, if any, in assessments of lost profits (which are legal matters).

How does your position as a charterholder across multiple institutions compliment your practice?

There was the immediate benefit of building knowledge in areas relevant to my work. The CFA curriculum, for example, covers (among other things) topics in finance, economics, statistics, valuation, and accounting; and the CAIA curriculum provides a ‘deep dive’ into alternative asset classes – hedge funds, venture capital, private equity, commodities, derivatives, land, etc. In addition, by association with these organisations, one becomes a part of large networks of finance professionals with different perspectives and has access to an array of seminars and conferences, as well as published research.

To what extent is document production becoming increasingly burdensome in complex disputes? How can this be resolved?

Asia, it is not something I have particularly noticed. I appreciate that my perspective on this, as an expert, may well be different from those of the users of arbitration and counsel, as sometimes the quality of our work is dependent upon the extent to which we can get access to relevant data and documents held by the other side. That said, we frame our requests for such items narrowly and generally need to support them with explanations as to why the data or documents are relevant and material to our analysis.

How would you like to develop your practice in 2022–2023?

First, with barriers to travel now being lifted here (and elsewhere), a priority for me is getting around the region to see clients, colleagues, and friends face-to-face again – particularly in Singapore and Japan. Second, we recently added expertise in regulatory economics to our Seoul-based team. I am keen to explore ways to leverage that expertise in the damages work that we do, including in the energy space.

What advice would you give to up-and-coming damages experts preparing for their first testifying role?

If you are getting ready to testify for the first time, it is impossible to overprepare. Read everything. Then, read all the key documents again. Understand the format. Will there be witness conferencing, for example? If there is an opening presentation, start work on that well in advance of the hearing (it will take time to finalise and can distract from other prep work if left too late). Also, prepare about half the number of slides you initially think you need – something that is easier said than done!

I am aware of this view held by some practitioners, but in relation to disputes in East

Peers and clients say: He is highly competent, thorough and honest in his approach” “Braden is a very strong communicator and an incredibly intelligent expert” “Mr Billiet is very responsive and works hard to achieve the best result for the client” whoswholegal.com/thought-leaders

239

Richard Boulton QC

Berkeley Research Group

London www.oeclaw.co.uk / thinkbrg.com rboulton@oeclaw.co.uk Tel: +44 20 7583 2000

Biography Richard Boulton QC is a chartered accountant and barrister who advises clients on strategic, regulatory, economic, accounting and valuation issues, with particular expertise in the assessment and communication of complex damages. He has been engaged on over 300 cases, including many of the world’s largest commercial disputes, and has testified on 65 occasions.

240

Expert Witnesses

What inspired you to pursue a career as an expert witness?

I qualified as a chartered accountant in 1985 and was seconded to the litigation services division in the New York office of Arthur Andersen. When I returned to London, I was one of the first accountants with experience of dispute work (New York being much more litigious than London in those days). So it was largely happenstance, allied to the fact that I found the work intellectually satisfying. With a couple of colleagues, we set out to make expert reports more sophisticated, emphasising complex modelling and economics over pure accountancy.

What are the most significant challenges you are anticipating expert witnesses to encounter over 2022–2023, and how are you planning to navigate them? In 2021, the main challenge was diary management as cases spilled over from 2020 for covid-19 related reasons. I expect that to continue: counsel are now well used to virtual hearings, but arbitrators are very busy and it is often impossible to fix hearing dates that also work for the experts. I have not been on a plane for 20 months, but it looks like that will change in the coming weeks.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients? Most clients believe that you have to be an expert in their industry to be a good expert

on valuation or damages. Whilst there is some truth in that, particularly in financial service industries, it can be overstated. I draw on experience gained across a wide range of geographies and sectors, and from a broad range of cases over the past 40 years, and I think that often brings valuable and sometimes unexpected insight.

to who can be trusted; but that also has its dangers since the tribunal should be deciding issues on the evidence before it in that case. Some tribunals are handson when it comes to managing the expert evidence (eg, joint reports, hot-tubbing) and that is welcome.

It is important to carefully define the issues that each of you will address, and how they interrelate. As a damages expert, I often sit “downstream” of other experts whose evidence flows through into the valuation of damages. In those cases, it is critical to have a fairly final draft of the other expert’s report in time to reflect the conclusions in your own model and report. That sounds straightforward, but it isn’t!

Petroleum Industries Company, which resulted in an award of over $2 billion in damages arising from PIC’s withdrawal from a $17 billion joint venture in the middle of the 2008 financial crisis. The case raised lots of interesting and disputed quantum issues, including the impact of the withdrawal on Dow’s financing costs.

Although most arbitral tribunals are comprised of lawyers, they are becoming more comfortable with valuation issues. There is still an unfortunate tendency for the quantum experts to be crossexamined on the final Friday afternoon with both sides running out of time, but tribunals are increasingly willing to grapple with the technical valuation issues. It is also very common to appear before the same tribunal members in multiple cases. This is welcome in some ways, because it helps the tribunal form a judgment as

analytical, and good oral and written communication skills. More underrated skills: be reasonable, know when to concede points, recognise the risks of becoming partisan.

What is the most memorable How do you effectively coordi- arbitration you have been a part nate on cases when working of, and why? alongside experts with other Probably the ICC case between Dow areas of expertise? Chemical and Kuwait’s state-owned

What underrated skills would you encourage the up-andHow has the dynamic between coming generation of arbitraarbitral tribunals and experts tion professionals to develop? changed over the years? Most of the key skills are well-known:

Peers and clients say: “Richard is a masterful testifying witness and a top-notch economist” “He’s excellent while under cross-examination” “Aside from being brilliant, he has an authoritative presence that makes him an excellent expert witness” “His expert reports are well crafted and elegant” whoswholegal.com/thought-leaders

241

Matthias CazierDarmois

FTI Consulting

Paris www.fticonsulting.com matthias.cazier-darmois@ fticonsulting.com Tel: +33 1 53 05 36 17

Biography For over 15 years Matthias has brought economic and financial expertise to commercial disputes. Before relocating to Paris, Matthias spent several years in London working on high-profile international disputes. He has acted as expert witness in a variety of matters, and before several arbitration and litigation forums; he has also testified in French and English in many commercial and investment arbitrations.

242

Expert Witnesses

The views expressed herein are those of the author and not necessarily the views of FTI Consulting, Inc, its management, its subsidiaries, its affiliates, or its other professionals.

What do you enjoy most about working as an expert witness in litigation proceedings?

Never getting bored. Each case presents unique combination of issues, industries and cultures. There is always a huge amount of knowledge to be gained in each and every case.

Where, in your opinion, does the future of the practice area lie? The sophistication of damages quantification has increased enormously in the past decade. Today the familiarity of counsels and arbitrators with damages-related issues is stunning. At the same time, the answers brought by different tribunals to damages issues in analogous contexts can be very different. Going forward, I could see greater convergence, especially as damages are increasingly a topic of research and debate among arbitration practitioners.

What qualities make for an effective arbitration expert witness?

Aside from being skilful at conveying complex messages to a non-expert audience, a key attribute of a good expert witnesses is his or her ability to quickly make sense of the (sometimes enormous amount of) economic data typically found in international arbitration cases. Understanding the evidence is key to building a robust analysis from the outset. This is easier said than done: getting a good grasp of the facts is time-consuming and requires articulating technical knowledge (such as interpreting accounting and financial documents), knowledge of the subject industry, and an understanding of the parties’ legal cases.

FTI is known for its breadth of industry expertise, do you often collaborate with industry experts?

FTI has a unique ability to bring together industry experts and damages experts. This can prove very efficient in certain cases, such as complex energy disputes where the nature of the issues and the amounts at stake can make multiple appointments worthwhile. Where parties need to choose between a damages and an industry expert, my experience is that forensic analyses of contemporaneous economic information is often be more persuasive than ad-hoc opinions prepared for the needs of the case. However, industry experts are hardly avoidable where evidence is scarce or where the issues are very specific and technical.

pioneers, who first educated tribunals about the “compounding” of interest, the “discounting” of future losses, or the “cash flows” typically used by investors to assess the value of an investment. Many key concepts are now well understood and, perhaps partly as a result, expert evidence is seen as more commoditised, resulting in more competition in the market. At the same time, damages are less often overlooked, and the increased sophistication of parties, counsels and tribunals means that parties really need to get it right, allowing reliable experts to thrive.

As a senior managing director of economic and financial Third-party funding is a grow- consulting at FTI, what are your ing trend. What difficulties are priorities for the firm going posed by performing quan- forward? tum due diligence analyses on At present we are increasingly approached behalf of third-party funders? to act as experts in litigation proceedings I have seen very different approaches taken by different third-party funders. Some doing extensive due diligence, including on quantum. Others being less risk averse. At present, my sense is that there is more money to fund arbitration cases than meritorious cases require. This is good for claimants, but challenging for funders’ returns. I am looking forward to seeing some funds diversify to bring meritorious cases before French courts – although, unfortunately, funding is probably not the only challenge faced by claimants in the French legal system.

What are the greatest challenges currently facing financial and economic experts?

before French courts. I could see our team doing more work in that space in the future.

What advice would you give to someone starting out a career in your field?

Get a job at FTI, and one or more mentors. I have been very fortunate to work with many exceptional expert witnesses. With them, I have attended dozens of hearings before getting my first appointments. This helped me building my expertise and developing long-lasting relationships with practitioners in the field. I am grateful to them and looking forward to giving back by pushing the next generation of experts.

To an extent, some of the greatest challenges are behind us. Kudos to the

Peers and clients say: “I’ve worked with him on many contentious cases – he was very professional and friendly” “He has a very impressive reputation in the field” whoswholegal.com/thought-leaders

243

Anthony Charlton

HKA

Paris www.hka.com anthonycharlton@hka.com Tel: +33 1 44 43 52 00

Biography Anthony Charlton is a partner with HKA, based in Paris, within their forensic accounting and commercial damages (FACD) practice. He is a fellow of the Institute of Chartered Accountants in England & Wales. Anthony has over 25 years of specialist experience in the quantification of damages in international commercial and investment treaty disputes, contentious valuations, expert determinations, shareholder/ joint-venture disputes, financial and fraud investigations, and other types of forensic accounting assignments.

244

Expert Witnesses

Describe your career to date.

Upon qualifying as a Chartered Accountant with Coopers & Lybrand (now PwC) in 1996, I had to weigh up my post-audit career options. Forensic accounting provided an excellent opportunity to bridge the worlds of law and finance, and gain exposure to some fascinating and high-profile disputes. Many years later and having worked at two Big Four firms and two boutiques (including HKA where I am now), I have no regrets whatsoever about choosing to specialise in expert witness work. I have worked on well over one hundred disputes – each and every one quite different - and have given evidence on some thirty or so occasions.

What qualities make for an effective expert witness?

Ability to identify, analyse, and solve the (quantum) issues at the heart of a dispute, to communicate clearly and with authority both in writing and orally, and to retain one’s calm and credibility when under the pressures of cross-examination.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why? It could be extremely helpful to know what the tribunal is most interested in before writing one’s report, and certainly before appearing at the hearing. Sometimes what one spends a lot of time analysing and writing about turns out not to be what a tribunal’s decision will turn on. It follows from this that I’d like to see more ‘hot tubbing.’ I have no issue with defending my opinions under cross-examination, but I’ve often felt that far more value is added when arbitrators put the same questions to both experts in witness conferencing.

What underrated skills would you encourage the up-andcoming generation of arbitration professionals to develop?

I don’t know if report writing is an ‘underrated skill’, but I would absolutely encourage emerging arbitration experts to write in as clear and concise terms as possible. I sometimes read opposing expert’s reports that are in the hundreds of pages, but which could have been written in perhaps 50 to 100 pages and be much stronger as a result. Given the severe time constraints under which many arbitrators must operate, an expert would do well to limit the ‘main report’ to just the key findings, and put everything else in the appendices. Beyond report writing, I always would encourage face-to-face networking to develop social skills, and also to work constantly on presentation skills. I used to dread speaking in public but after so much practice it became second nature.

What advice would you give someone beginning a career in your field?

Take advantage of any opportunity to learn from (an) expert(s) who have ‘war stories’ to tell. Find out what mistakes they made in the past, how they made them, what they learned from the experience, etc, so that you do not have to make the same mistake yourself. It’s always satisfying when a particular hearing goes well and/ or one gets positive comments from instructing counsel/ clients/ tribunal, etc, but it’s a sad fact that one learns most from mistakes! A similar piece of advice is to find (an) experienced mentor(s) who can guide you as you begin your career and provide helpful pointers.

Peers and clients say: “Anthony is a very productive expert with great analytical skills” “In my view, he is one of the strongest practitioners in the market” whoswholegal.com/thought-leaders

245

Laura Cózar

Accuracy

Madrid www.accuracy.com laura.cozar@accuracy.com Tel: +34 660634256

Biography Laura is a partner at Accuracy.She specialises in the infrastructure and energy sectors and her experience spans 20 years. Laura has advised corporations, investors, lenders and the public sector in the structuring, financing, development and acquisition of over 50 multi-billion-dollar PPP projects worldwide. She has worked as an economic expert in over 40 investor–state and commercial arbitration cases involving transport, water, O&G and energy projects, in disputes arising mainly from contractual breaches, regulation changes, post-M&A issues and construction overruns.

246

Expert Witnesses

What do you enjoy most about What steps can younger experts your role as an infrastructure take to improve their chances and energy expert? of getting testifying appointUndoubtedly, landing a new case – when ments? Is there an important I start diving into it, understanding the role to play here for experiissues and the different angles from which enced experts? I can approach it. Lawyers and clients value that I bring my perspective as an adviser to arbitration cases. In practice, that means I can put myself in the shoes of the investor, the lender, the state and so on to figure out what the expectations and decision process would have been at inception. I enjoy that the most.

What was the biggest challenge that you faced when you started your career?

At the beginning of my career, when analysing an investment opportunity, I identified an issue that had been overlooked by the client and would have put the deal at risk. I was terrified to present my findings to my boss, let alone to the client. At first, they did not believe me and gave me a hard time for a number of days when I had to explain myself, but ultimately the project was put on hold. Twenty years later, the client still remembers me and enjoys telling the anecdote of how a young Mrs Cózar defied them!

How has the dynamic between arbitral tribunals and experts changed over the years?

Our duty is to the tribunal, but too often I find that they do not make the most of us in the course of the arbitration proceedings. Nevertheless, I can see some positive signs of increased interaction between arbitral tribunals and experts, like the frequent use of expert conferencing and active tribunals that ask experts questions at hearings and request post-hearing support.

As in other fields, learning by doing is the most effective way. It is crucial to give opportunities to young experts in a safe environment for them, whilst also preserving the best interests of the client and the case. At Accuracy, we co-author our expert reports, bringing a less experienced expert along with a seasoned one. This works very well in my experience as it nurtures the next generation of experts on the job. Besides, the collaboration is enriching for both parties: the younger expert benefits from the experience and wisdom of his or her colleague – a highly motivating factor – but the seasoned expert may also benefit from new ways of thinking. And the icing on the cake is that it does not increase the cost for the client.

How do you effectively coordinate on cases when working alongside experts with other areas of expertise? I have held different positions in different sectors and have worked in over 30 countries throughout my 20-year career, so I find it very easy to understand and “translate” what experts in other disciplines bring to a specific case. Plus, I enjoy playing the role of the orchestra conductor. For example, when dealing with engineers, I try to remember the challenges I faced when I started to work as an adviser to lenders 15 years back. I had to adjust my communication style to the audience, the degree of detail of my analysis…

My team and I have developed a type of crash-training for experts who testify for the first time. It helps to guide them through the process and ensure a successful experience. This is very reassuring for all: the newcomer, the lawyers and the client.

What steps can be made to increase diversity in the arbitration field?

Significant efforts have been made to bring diversity – whether gender, racial, age and more – to the table and create awareness. These efforts must continue; they open minds and generate a virtuous circle of visibility and trust, with the ultimate aim of removing diversity as an issue in the arbitration arena.

How are AI and technological developments affecting the analyses you conduct? How do you anticipate they will affect analyses moving forward?

I expect more efficiency. Tasks with lower added value will be automated and optimised, which will free time and resources for experts to focus on critical reasoning and strategic thinking on the aspects that form the crux of the case. This will also bring cost-optimisation benefits that clients will certainly appreciate.

What is the best piece of advice you’ve ever received?

“Keep going in a (your!) straight line!”. I took this to mean three things: trust your judgement, do not get derailed or too influenced by others, and always do what you feel is right as a professional and as a person…

Peers and clients say: “She is always looking further down the road for potential challenges the case might encounter and finds ways to overcome these challenges” “A thoughtful and methodical expert who thinks outside of the box” “Laura’s thorough and rigorous analyses are most impressive, as is her exceptional ability to detect and assess the implications of critical issues in quantum disputes” whoswholegal.com/thought-leaders

247

Santiago Dellepiane

BRG

New York www.thinkbrg.com sdellepiane@thinkbrg.com Tel: +1 917 605 0858

Biography Santiago Dellepiane is a managing director with Berkeley Research Group and co-chair of its Global Economics Community. He has worked extensively as an economist and valuation analyst and as a consultant for utilities, regulated, and non-regulated businesses. His work involves economic analysis, valuation, business advisory, regulatory analysis and damages assessment.

248

Expert Witnesses

How has the market changed since you first started practising?

From my vantage point, an increasing awareness for quantum issues and a growing sophistication have taken an important role. This is promising yet very challenging. There are many technical issues that inform quantum analysis and tribunals are tasked with determining the correct manner in which some of these techniques are to be applied.

What is the key to succeeding as an expert across multiple arbitration institutions and courts in a wide range of jurisdictions?

The core principle of providing expert testimony does not change across arbitral institutions or courts: the objective is to assist the court, jury or tribunal to make an informed judgement. Guided by first principles, intuition, reasonable business sense, and relying on established methodological approaches, we are here to apply science, not to create it from scratch.

How do you effectively prepare for cross-examination and/or hot-tubbing?

Preparing for cross and witness conferencing means being prepared to provide useful evidence to the arbitral tribunal and have an intelligent conversation with a fellow expert or even a cross-examiner. This can be layered: answering questions as to why a certain approach is better than another may require big picture economic or industry analysis; on the other hand, the selection of specific variables or inputs may be a detailed debate anchored in factual and expert evidence. One important aspect of this preparation is a reliable team of

support staff that act as a sounding board, remind us of critical issues, and are available to help us run alternative scenarios on demand.

must give serious consideration to how to promote comprehension of testimony across the virtual medium.

First of all, the impartiality of career experts is given by the fact that their value is to the tribunals they serve and therefore they must preserve the long-term sensibility. I believe that if one assumes a topnotch expert will appear on the opposite side, that serves as a test of impartiality as well. Increased transparency may allow incorporating best practices from other legal systems (eg, U.S. intellectual property cases).

earlier when our teams help counsel understand the approach chosen as well as those that weren’t, and why. We should seek to help counsel understand the first principles behind the core issues in a case, and not just provide them with sound bites.

Do you have any tips for counsel Do you think the increase in on how to use an expert team transparency found in arbitra- effectively? tion proceedings has encouraged Counsel in any forum will lean on their experts to remain impartial? Or expert teams for input on preparing their do you think further steps are cross examinations, this can be very needed? important. But the process begins much

What challenges do hybrid hearings present from an impartiality standpoint?

Both in-person and virtual hearings have their benefits; ease of attendance, reduced costs, and sometimes the ability to see the tribunal’s reactions up close are new benefits of virtual hearings. The main drawback is that as humans, we find it harder to maintain attention across a virtual medium. Hybrid hearings reflect that some parties will value those benefits at a premium, even if it means giving up the in-person connection or allowing the other side to access that connection. It has made arbitration more accessible to a wider range of claimants. To continue reaching this expanded audience, tribunal members, along with counsel and experts,

What advantages accompany introducing experts early in the disputes process?

Introducing experts early allows potential claimants or respondents to inform how they see quantum issues, but also to understand realistically what costs may be incurred, as well as the key sensitivities that drive the damages estimates.

As co-chair of the firm’s economics and damages community, what are your goals for the group over the next five years and how will you achieve them?

Our international arbitration team of economists and financial specialists at BRG is poised to continue expanding to satisfy growing demand in a few core industries: mining, energy and the metaverse/cryptocurrency. We have the right skills and proven experience on the first two, and are at the cutting edge of the latter.

Peers and clients say: “Santiago is excellent on his feet” “He is a nimble thinker and understands the case in great depth” “He seamlessly handles complex cases”

whoswholegal.com/thought-leaders

249

Alexander Demuth

Alvarez & Marsal

Munich www.alvarezandmarsal.com ademuth@alvarezandmarsal.com Tel: +49 160 538 7818

Biography Alexander Demuth, co-head of A&M’s international arbitration group and leader of the German disputes and investigations practice, specialises in advising clients in arbitration, litigation and settlement with a focus on post-merger and commercial disputes. Mr Demuth has more than 20 years’ experience in quantification of damages, valuation, business modelling, transaction services, accounting and auditing. His experience includes giving evidence in more than 20 hearings, including in arbitrations under AAA, DIS, ICC, SCC, VIAC and ICSID rules.

250

Expert Witnesses

What inspired you to specialise as an expert witness in complex damages and valuation cases?

When I specialised in this field more than 10 years ago, expert witness was not a defined standalone profession in Germany. I was intrigued by the opportunity and challenge to develop something new building on my experience in valuation, financial modelling, financial due diligence, auditing and accounting. Naturally, my colleagues in the UK and the US have been an important element and have provided support during the early years of my career. Working with both the local German and A&M’s global teams that are focused on international arbitration has also inspired me to continue to be dedicated to this area, now and in the years to come.

What is it about being an expert witness that you enjoy most?

Simply put: continuous development and excitement. No two cases are the same and, as a consequence, I am allowed to learn something new every day. These new experiences involve, amongst others, new countries, new cultures, new industries and new technologies; allowing me to employ my skills in varied contexts. I also very much enjoy the intellectual challenge of identifying and combining relevant facts with economic and (forensic) accounting methods and approaches to – on the basis of legal theories – establish a reasonable and reliable assessment of damages.

To what extent has covid-19 had an impact on commercial arbitration? Are parties willing to be flexible in procedure and approach to get it over the line?

Based on my observations, it seems that once the initial plan of postponing

procedures until “business as usual” returned failed, the arbitration industry very quickly adopted to the changed environment and virtual hearings became an efficient and effective way to manage the proceedings. I am convinced that virtual meetings and hearings are here to stay and – while they may not be used in all cases – will continue to be part of our everyday life post-pandemic.

How has the move to virtual hearing, due to the coronavirus pandemic, influenced how you apply scrutiny and verify evidence?

In my opinion, assessing the personality and non-verbal signals during a dialogue is much harder in a virtual environment than in person. Therefore, the interviews and discussions tend to take more time to enable sufficient reassurance through follow-up or probing questions. Also, (contemporaneous) evidence becomes even more important and assessing its authenticity may require extra steps as their production cannot be observed in person. However, in essence the substance and quality of the work we perform has continued to remain at the same high standard.

The use of experts is a relatively new phenomenon in the German market. Have there been any recent developments?

How can the benefits of data be harnessed in your practice?

Data is the lifeblood of many organisations and provides them not only with direction on how to manage a business, but also evidence of how well they have performed. Therefore, it is a crucial element to any case and is generally available in abundance and, in fact, most of the time, more data is better than less. However, it is one thing to “have” data and another to harness the value and benefits that can be derived from it and then use that information on a case. This involves ensuring the integrity and completeness of the data being used, as well as ensuring it is captured at a granular enough level to enable the required analysis and modelling. It is also important to understand the business processes that surround the data to ensure any factors introduced by these are fully considered. Then it is down to the educated use of methods and tools to analyse and understand the data and what it tells us. Only then data becomes a reliable and invaluable basis on which to build our assessments.

What advice would you offer to a practitioner starting out as an expert? The same I am offering to all our new joiners: listen carefully, always. Ask, at any opportunity. Work hard. Be patient. And always be ready for your moment.

Over the past decade, it’s become increasingly more common to use experts, especially for questions of quantum. More recently, the market has attracted several established global services firms, which I believe will help to professionalise the market and thus increase the quality of the services offered, strengthening the role experts can play in disputes.

Peers and clients say: “He is very efficient and has a good understanding of the expectations of a tribunal” “Alexander sets a one-of-a-kind benchmark as an expert witness in international arbitration proceedings” “His expertise in quantification of damages is outstanding” “He seamlessly combines his know-how in valuation and accounting, possessing unmatched strength as an expert witness” whoswholegal.com/thought-leaders

251

Trevor Dick

Alvarez & Marsal

Hong Kong www.alvarezandmarsal.com tdick@alvarezandmarsal.com Tel: +852 3102 2650

Biography Trevor is a managing director in Alvarez & Marsal’s disputes and investigations team in Hong Kong, specialising in the provision of expert accounting testimony in contentious matters. He has delivered oral and written expert accounting testimony before the High Courts in Hong Kong and Singapore and in various international arbitrations under the HKIAC, ICC, UNCITRAL, SIAC, AAA and CIETAC rules.

252

Expert Witnesses

What attracted you to a career What qualities make for an in disputes and investigations? effective forensic accountant? I like surprises! One never knows where the next engagement will come from, each new instruction is unique, and each running matter has its twists and turns. I have always enjoyed the challenge of identifying solutions to novel problems, and it is invigorating to know that it is genuinely impossible to predict what I will be doing at this time tomorrow.

You do a mix of investigations and disputes work. To what extent do these two sides of your practice complement one another?

To an increasingly large extent. It is becoming relatively common for contentious engagements to involve both a forensic work stream (for example, a forensic investigation to establish the facts associated with alleged breaches of contract and provide a basis for expressing their impact on quantum) and funds or asset-tracing procedures, alongside a more traditional quantum analysis and opinion.

How has the market changed since you first started practising?

It’s more competitive. When I first arrived in Asia, there was a limited number of serious forensic experts in the market. That is certainly not the case now. Clients have many good options, and participants in the market need to invest significant effort in demonstrating the value of their experience, expertise and offerings.

A curious, rigorous and sceptical mindset. A willingness to expend the intellectual effort required to uncover and understand complex fact patterns. The ability to turn intricate analyses of financial and economic data into clear and compelling written reports that effectively communicate findings to clients, instructing solicitors, judges and arbitral tribunals. An inclination to admit to and deal with the impact of errors or misunderstandings as soon as they arise. And the confidence to be a robust advocate for one’s legitimately held professional opinions.

in quo and meet individuals face to face. Building a rapport, even with adversaries, is so much more straightforward in the room rather than on a screen. Virtual hearings are a significant development and will undoubtedly stay with us to some degree even as travel restrictions begin to ease. The application of technology to the process has been ingenious, but crossexamination is better conducted in person. Presenting evidence as an expert witness during a virtual hearing can be limiting without the ability to assess the tribunal’s reaction in person and “read the room”.

What are the key challenges younger forensic accountants What has been your most inter- may face in their practice and esting case to date, and why? how can they overcome these? I acted for an international accounting firm that its former client had sued for alleged professional negligence in connection with the preparation of expert reports for use in litigation. This was the most thoroughly fascinating exercise, given that it involved considering the appropriateness of another expert’s evidence and the various standards to which that expert’s evidence ought to be held. I think about it every time I draft one of my reports.

How has covid-19 affected your work and to what extent do you see these effects being long term?

On the one hand, hardly at all, as so much of an expert’s work can be office or even home-based because we tend to get most heavily involved once formal disclosure is substantially complete. On the other hand, I miss the opportunity to travel to the locus

The principal challenge for a younger accountant is to become a successful older accountant! That has always required skills of adaptation and flexibility. The increasing pace of change might make that more challenging than in the past. For those of us that have children on the cusp of joining the workforce, it’s been observed that many of them will be working with technology that hasn’t been invented yet, solving problems that haven’t been identified yet. On the other hand, opportunities for acquiring knowledge and upgrading skills for those willing to invest time and effort in staying relevant have never been more available. Careers are long, and success is much more about the journey than the destination.

What is the best piece of advice you’ve ever received? “Don’t screw up our case.”

Peers and clients say: “A great and well-experienced expert” “He takes a very client-friendly approach”

whoswholegal.com/thought-leaders

253

Giovanni Di Folco

Techno Engineering & Associates Group and GDF ADR Solutions Bucharest www.technoeng.com

giovanni.difolco@technoeng.com Tel: +40 743 046 910

Biography Giovanni Di Folco is the president of Techno Engineering & Associates Group and GDF ADR Solutions, both international techno-legal consulting engineering firms specialising in integrated contract management, claims and dispute avoidance and resolution internationally, with particular experience representing clients in international adjudication, arbitration and litigation. He is a civil engineer, adjudicator, arbitrator and an expert witness in delay and quantum, and a legal arbitration practitioner and counsel, with more than 30 years’ experience of managing multidisciplinary civil engineering projects around the world and resolving disputes.

254

Expert Witnesses

What inspired you to pursue a career in arbitration?

Personally, as a seasoned civil engineer with a legal background and my encounters with the typical master-servant mindset of many employers / owners, led me on a path in pursuit of more equality, balance and fairness in construction decisions and disputes. Many contractors experience biased decisions and determinations from their employers / owners and their engineers, which can only be resolved by the available dispute resolution procedures and ultimately arbitration, which I consider to be at the pinnacle of the profession.

involved delay stemming from inadequate or erroneous site data and errors in the employer’s / owner’s design in construction projects, or misleading or ambiguous employer’s requirements in design-build projects. Without an in-depth knowledge of civil engineering, it’s difficult to imagine the range and selection of the various approaches to a technical dispute, which could influence the make or break of a case.

terms of impartiality, I don’t consider that hybrid hearings have caused any significant challenges. Naturally, a chosen venue has to be equipped with reliable technology which is fit for the purpose, such as adequate video, sound systems and transcript recording facilities and stable multiple internet connections are essential. Impartiality relies upon the behaviour of individuals, expert witnesses and especially the chair of the tribunal, which would be the case in a virtual or a face-to-face hearing.

How is AI and technological developments affecting the analyses you conduct? How What affect does a more interdo you anticipate it will affect ventionalist approach from How has the dynamic between analyses moving forward? tribunals have on independent arbitral tribunals and experts AI is in its infancy when it comes to expert work? changed over the years? construction, yet other technological A more interventionalist approach gives In my experience, arbitral tribunals have evolved in a manner which demonstrates that they take a greater interest in the function of the contract conditions as a whole, when multiple clauses and other relevant contract documents are read in conjunction, as opposed to singling disputes down to a literal meaning of a single clause. I have also seen a progressive improvement in the technical ability of tribunals over recent years, which is likely due to their greater propensity to use experts to assist in their decision-making. What is becoming more popular is the process of “hot-tubbing” where the tribunal’s expert and the respective party experts openly discuss issues, under the tribunal’s questioning, assisting the tribunal’s reasoning and ultimate decisions in the process.

How does your deep expertise in civil engineering enable you to provide creative solutions to clients? Most disputes involve the technologies of design and construction, innovative developments in their specialities, coupled with the constraints and underestimations at the time of tender. The majority of disputes I have dealt with have

advances have developed apace, such as more reliable drone survey techniques and the further development and improvement of specific project management and programming software. I imagine that AI will have a significant importance in the future development of software aids to the construction industry as a whole.

more opportunity to take advantage of expert evidence in selected disciplines. With a delay dispute, for example, the evidence given by an expert delay analyst would generally encourage a more reliable outcome. The same applies to other disciplines, especially in complex engineering or legal disputes.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?

As president, co-owner and senior partner, what are your main priorities for the firm’s development over the next five years?

One of the most important aspects to consider regarding the seat of arbitration is the applicable rules and the likelihood of them being implemented diligently. Virtual arbitrations remove much of the importance of the geographical location of the seat, which generally influences the level of expenses associated with essential attendees and allows more freedom to choose more trusted seats.

Apart from the continuation of regular scheduled personnel training at all levels, high priority is given to maintain pace with current technology, which enhances the efficiency, accuracy and reliability of case preparation and the ready access to evidence.

What challenges do hybrid hearings present from an impartiality standpoint? In these recent times, we have experienced both virtual and hybrid hearings, and in

Peers and clients say: “He is one of the finest tactical minds I have ever seen” “He is an astute engineer and a skilled advocate, particularly on technical construction issues” “Giovanni is committed to achieving the best results possible for his clients” “He is a master of cross-examination” whoswholegal.com/thought-leaders

255

Austin Duffy

Kroll Advisory Limited London www.kroll.com

austin.duffy@kroll.com Tel: +44 20 7836 0158

Biography I am a chartered engineer with over 30 years of experience in the design, procurement, construction and commissioning of complex and high-value construction/engineering projects globally. I have been instructed as an independent expert on project/construction management performance matters, as well as an expert on programming and delay in international arbitration on many occasions. I lead Kroll’s construction projects advisory team and I am regularly retained to provide strategic advice on major capital investment programmes.

256

Expert Witnesses

What do your clients look for in an effective expert witness?

Strong subject matter expertise tends to be foremost in clients’ and lawyers’ minds when instructing an expert. This is particularly important in professional negligence cases where it is imperative that the expert has relevant practical experience (eg, as a construction manager or a client-side project manager) to provide a well-considered, objective and credible opinion which will be rigorously tested in cross-examination. Experience aside, other important factors clients and lawyers look for in selecting an effective expert witness include availability, strength and depth of the support team and testifying experience.

Why should neutrality be the foremost value a partyappointed testifying expert embodies? Neutrality is paramount for both partyappointed and tribunal-appointed experts. At the beginning of the arbitral lifecycle, an independent expert can greatly assist its appointing party by providing well considered and objective advice that negates unmeritorious claims being advanced from the outset. During proceedings, it ought to be relatively straightforward for independent experts reviewing the same factual matrix to openly discuss and narrow the issues between them, thereby reducing the points of disagreement to be considered in cross-examination, and ultimately decided on by the tribunal.

What is the philosophy behind your approach as an arbitration expert witness? How has the dynamic between My approach is based on a clear under- arbitral tribunals and experts standing that my written reports and changed over the years? evidence are to assist the tribunal in its deliberations, a duty that overrides any obligation to the party that has appointed me. Accordingly, I always endeavour to be accurate and thorough in my investigation of the contemporaneous records and in my review of the factual witness evidence.

What challenges and opportunities do virtual arbitration hearings and proceedings present to expert witnesses?

During the period of covid-19 restrictions, I gave evidence in virtual arbitration hearings on several occasions. On one particular matter, the tribunal, the experts, the parties and their legal teams were based in four different locations around the globe with the proceedings live-streamed in three different languages simultaneously. Although finding timeslots across the different time zones was a challenge, as it restricted the duration of daily proceedings, I found the entire process to be very efficient and certainly cost effective for the parties.

In my experience, as matters in dispute become more complex with ever increasing amounts of evidence to consider, tribunals require experts to provide clear, concise and well-considered opinions. I have also found that the appointment of tribunalappointed experts, particularly where tribunal members have a civil law background, to be more common. Where I have been retained as a tribunal-appointed expert on project management and programming matters, I have found it very insightful and rewarding to work closely with reputable and well-respected tribunal members.

How do you effectively prepare for cross-examination and/or hot-tubbing?

I prepare for cross-examination and/or hottubbing by having a detailed understanding of my own expert evidence, the pleadings, factual witness evidence and the evidence of any technical experts. I then ensure that I have a clear understanding of the areas of

whoswholegal.com/thought-leaders

disagreement with my opposing expert(s). This allows me to present and explain the reasoning behind my opinion to the tribunal in a clear and concise manner, knowing that I have fully considered my opposing expert’s opinion. I also attend the crossexamination of the key factual witnesses, as points arising from such cross-examination may have implications for my own expert evidence.

How is AI and technological developments affecting the analyses you conduct? How do you anticipate it will affect analyses moving forward?

Advances in technology and use of artificial intelligence is already having a notable impact on how experts undertake their work. Over the last decade, I have seen fundamental changes in how contemporaneous records are compiled on large-scale projects, ranging from extensive hard-copy records stored in secure containers on site (which then need to be laboriously scanned and converted into searchable electronic format) to highly efficient project information management systems and databases on remote servers, where substantial volumes of data are readily available in a user-friendly format. The use of automated workflows and thematic searches of large amounts of contemporaneous data and factual witness evidence has allowed expert teams to review ever increasing amounts of factual evidence in a more time and cost-effective manner. Moving forward, I anticipate that as disputes become larger, more complex and produce even greater amounts of data, the use of artificial intelligence tools (eg, advanced e-discovery and integrated automated workflow models) to assist analysts will be welcomed. That said, I expect the role of the subject matter experts in deciphering complexity and assisting tribunals will remain for some time.

257

What key skills and traits would you encourage the next generation of arbitration experts to develop? I always encourage junior colleagues to: (i) work with and learn from experienced

experts, take constructive feedback on board and develop your own expert style; (ii) seek opportunities to work on a variety of different matters and continually build your experience and CV; (iii) never stop asking questions; (iv) be diligent and thorough in

your research and analysis; (v) look at new ways of approaching their analysis utilising data and emerging technologies; and (vi) build your network and remember that the junior lawyers of today will be the partners instructing you tomorrow.

Peers and clients say: “Austin has impressive project management, communication and presentation skills” “Mr Duffy is highly technically competent and experienced with both forensic and practical matters” “Austin is quickly establishing himself as one of the best delay experts in the market” 258

Expert Witnesses

Analysing the evolving law on trading, protecting and monetising data

Find out more www.globaldatareview.com gdr-subscriptions@globaldatareview.com

Frederic Elkeslassy

EY & Associés Paris www.ey.com

frederic.elkeslassy@fr.ey.com Tel: +33 6 34 17 56 66

Biography Frédéric is a forensic accountant and quantum expert. He leads EY’s Europe west disputes practice (25 countries that includes well-known places of arbitrations such as Paris, Geneva, Zurich, Madrid, Milano, Vienna, Frankfurt, Hamburg and Dusseldorf). Frederic has been cross examined both in investment and commercial international arbitrations proceedings and testified on damages up to 2.6 billon USD. Frederic is a Qualified Chartered Accountant (French CPA), affiliate of the Institute of Chartered Accountants in England and Wales, and has a master’s degree in accounting, finance and economics (Dauphine University) and a degree in economics (La Sorbonne University).

260

Expert Witnesses

You have been practising at EY for over 20 years now, how has the market changed since you first began practice?

Over the past 22 years I have observed a shift of the quantum expert market from well-known individuals to highly skilled and professional teams capable of acting across borders. The market has grown, with increased competition and has gone global with teams of experts testifying all over the world. This is to me a great evolution that brings a lot of new opportunities and possibilities to practice outside of my home country with talented lawyers.

Which aspect of your practice do you enjoy the most?

Since 1 July 2021, all forensic practices within the Europe west region (25 countries) have been integrated. As a result, we have a stronger and plurisidiciplinary claims and disputes team working together and able to testify in almost all markets and in almost all languages. I enjoy being part of this team alongside such fantastic partners and experts and being involved in cross-border engagements where we can bring the best of EY to our clients.

What is the philosophy behind your approach as an arbitration expert witness?

As a forensic accountant and a French CPA that has been appointed as arbitrator, my approach is always to bring trust to tribunals. I strongly believe it is the expert’s duty to bring light to damages claimed by sticking to fact and proof and by being easily understandable.

Some practitioners report that fact, light, and strength in the damage conflict of interest rules for assessment. consulting experts in arbitration are not tight enough. Do How do you see your practice you agree? evolving over the next five Being at EY, where our internal conflict years? check rules would qualify as “state of the art”, I would not share the idea that conflict of interest rules for quantum experts are not tight enough. To the contrary our rules prevent us from crossing the line for several reasons. First, I sign my reports as a CPA and as such I am bound by professional rules, second none of my reports can be released without an independent review by another CPA that sits outside of my service line. With regards to the rest of the market I would not comment on any specific case but as an economist I truly believe in the “invisible hand” theory where the market will always come back to an equilibrium state.

What green arbitration trends are currently prevalent in the market?

I observe increased arbitrations in the field of renewable energies. We have witnessed waves of solar farm related arbitration and now we see a rise in windfarm construction litigations. I have not yet seen the rise of ESG related disputes grounded in environmental matters.

As a result of the quantitative easing policies, interest rate decreases and the massive cash injection in our economy the M&A market and the construction market have been particularly dynamic. In a now inflationary changing market, I would expect tension and as a result an increased number of litigations related to M&A and construction.

As leader of the Europe West Dispute practice at EY, what are your main priorities for the development in a post-pandemic market?

Teams are my priority. The pandemic has completely changed our way of interacting. In a changing world and in a transforming economy (which is a source of anxiety and litigation) one of our key factors for success is to liaise in our team to ensure professional development and integration. I truly believe that being part of an integrated European team, working together across the region, being in a position to move in the region brings an inspiring working environment.

What advantages accompany introducing experts early in the disputes process?

I would always recommend having experts involved early in the process because it helps to differently apprehend and deconstruct passion around the dispute and put

Peers and clients say: “He is the best of his generation” “He has top business acumen” “Frederic has an unmatched ability to explain complex matters” whoswholegal.com/thought-leaders

261

Jonathan Ellis

Secretariat Advisors, LLC Singapore www.secretariat-intl.com

jellis@secretariat-intl.com Tel: +65 62259600

Biography Jonathan Ellis is a managing director with Secretariat and is based in Singapore. He specialises in the quantification of damages and valuations, in particular in dispute contexts. He has testified on many occasions, in both court and arbitration proceedings, undertaken expert determinations and has been engaged as a tribunal appointed expert.

262

Expert Witnesses

Describe your career to date.

Having done a masters in accounting and management science, I started looking at forensic accounting as a potential career. I was fortunate enough to get a role in the forensic accounting group of a global consultancy firm, gaining my accounting qualification while focusing on a mixture of damages assessment and investigations. In 2012 I moved to the valuations team of a big four accounting firm and, while still focusing on contentious matters, I was fortunate enough to also spend time providing noncontentious valuation advice. In 2015, I made the move to Singapore to set up the office of a boutique advisory firm. Finally, in 2020, I moved to Secretariat to expand their economic damages capabilities in Asia.

What do you enjoy most about working in advisory and dispute resolution services?

The work and the people! I find the diversity in work means that I am constantly developing and learning. Additionally, the people that I work with are great, the array of high-quality experts and brilliant junior staff across the globe mean that working on projects is a mix of being intellectually challenged and also good fun.

the court (ie, CPR 35), it has not been hard to bring this to arbitrations. This philosophy manifests itself in many different ways, but you are constantly thinking how best to present analysis and conclusions to help the tribunal make the required decisions – ensuring you set out your assumptions clearly and (if appropriate) what happens if these assumptions change.

How is AI and technological developments affecting the analyses you conduct? How do you anticipate it will affect analyses moving forward?

I have not been fortunate enough to see or use any AI in matters I have been engaged in. Given that tribunals like to be able to understand analysis, I still think that there is a role of an expert to explain (and support) their analysis. For technological developments, I have seen a marked increase in the use of digital infrastructure in hearings (ie, electronic bundles and demonstrable exhibits), this changes how I present work, allowing for more dynamic use of graphics. I am a fan of this and enjoy using them to assist the tribunal to understand the concepts which we are engaging with.

culmination of years of rather large cases focused in this space. Rather than the experience as the vice chair, it is more the experience that got me there that I bring to my current engagements. Since then, I have also extended my focus to renewable energy, an area that has been (and will continue to be) very prominent for disputes.

As a managing director at Secretariat, what are your main priorities for the firm’s development over the next couple of years?

As the world opens up again, ensuring that we are able to reconnect with clients and continue to bring quality work to their dispute resolution processes.

Looking back over your career, what has been your proudest achievement?

This is a tough question, over my career there have been lots of achievements which I am proud of, both on a professional and personal level. Generally, I prefer to look to the future and make sure that I continue to deliver good quality work – hopefully the proudest achievement(s) are yet to come!

What is the philosophy behind How has your previous expeyour approach as an arbitration rience as vice chairman of the expert witness? energy and natural resources That you are truly there to assist the tribunal special interest group at ICAEW with its decision-making process. Given my enhanced your current work? formative training was in England, where you are very mindful of an expert’s duty to

I have always had an interest in energy and natural resources, my appointment was a

Peers and clients say: “He is very good at expressing himself, both verbally and in writing” “Jonathan is charming, calm and collected” “He has done a fabulous job for us in the past” whoswholegal.com/thought-leaders

263

John Ellison

FTI Consulting

London www.fticonsulting.com john.ellison@fticonsulting.com Tel: +44 20 3727 1720

Biography John has been appointed an expert witness in over 200 cases and testified in 54 trials/hearings in 11 jurisdictions. In research by GAR magazine, he was the most highly nominated individual overall; peers described him as “the godfather of expert witnesses” with “unsurpassed and unsurpassable” expertise. John also sits as an arbitrator and expert to determine disputes in the UK, the Cayman Islands, Sweden, Africa and the UAE, and has acted as sole arbitrator and as chair of a three-person tribunal. He has also testified before juries in criminal and libel cases.

264

Expert Witnesses

The views expressed herein are those of the author and not necessarily the views of FTI Consulting, Inc, its management, its subsidiaries, its affiliates, or its other professionals.

Describe your career to date.

I trained as an auditor and in corporate finance work before setting up a Big Four forensic practice in 1991 with nine people. I was a partner there for 25 years, including 13 as a senior partner and chair of the forensic division. I joined FTI as a senior managing director in September 2018. I have also had a wide range of other experience, including being a director of a mining company and of the holding company of an airline. From 2009 to 2015, I was lay vice-chair of the professional practice committee of the Bar Standards Board. I have also been appointed by several other regulators with statutory powers to carry out investigations into alleged financial misconduct. Industry specialities include oil and gas, mining, telecoms and construction.

their duty to the court. Too often one finds charlatans who will say anything – they do neither themselves nor their clients any good. There is no easier way for counsel to attack an expert than to prove he or she is biased. One sees this as an arbitrator. An expert should not stray out of their expertise; they should avoid dealing with matters which fact witnesses or counsel are better placed to handle. They should be courteous but firm under cross-examination. An expert should be user-friendly, producing well-written reports on time, being responsive and giving high-quality advice from their experience. The final quality is hard work. The expert must form their own opinions by studying the papers (not just being told by the team) and must know the detail inside out.

civil law continentals who dislike hostile cross-examination?) Geography is changing. Thirty years ago there were a lot of cases involving Greek shipowners, then many of us moved to large Russian cases. And now there are more and more Middle and Far Eastern cases, as one sees with the growth of institutions such as DIFC-LCIA and SIAC.

What attracted you to work at FTI Consulting?

A great firm with high-quality staff but without the conflict and auditor-independence issues that make a disputes practice so difficult in a Big Four accounting firm. It’s enormously friendly – I am writing this at a staff awayday in Faro, Portugal! It has a very professional and objective approach to work – a long way from the hired guns one sadly sometimes sees elsewhere.

What motivated you to pursue How do you prepare for giving a career as an arbitration and testimony in a trial? Where, in your opinion, does quantum of damages expert By going over the papers over and over the future of the practice area witness? again, and thinking through what ques- lie? My father was a judge so I was brought up with respect for the law. After being made a partner, I was offered the chance to do expert witness work, which was great fun, and we grew a highly successful and reputable business out of it. I like the pitting of wits; the need for accuracy; and the overseas travel (a lot of work in the Middle East and the Far East at present). Also, the theatre and drama of watching a trial and appearing in court and helping the tribunal arrive at the right answer. I selected international arbitration as it was a growing area, although I still do some High Court work.

What qualities make for an effective expert witness?

It is essential that an expert is truly objective and independent, and understands

tions may be asked. I like to prepare a PowerPoint presentation – which is a good way of helping the court by explaining complex concepts in an understandable way. One can emphasise areas where the opposing expert is obviously wrong. It is best to attend part of the trial before testifying to see how it is going and hear at least some of the fact witnesses.

How has the role of an expert witness changed since you started practising?

Continued strong growth, particularly in arbitration. Investor-state arbitrations (of which I have been instructed in some 25 cases), in particular, will continue to grow especially strongly.

What is the best piece of career advice you have ever received?

Give up audits (which are terribly boring) and start a forensic practice.

There are far more rules now (eg, in Court CPR 35 and PD 35). More is done using IT. And more big cases are dealt with in international arbitration where the style is very different – one also needs to understand the culture of the forum. (American lawyers who paint everything as fraud, or

Peers and clients say: “John is a leading figure of the quantum expert profession” “He has a great depth of experience all over the world” “He is a very well-known expert” whoswholegal.com/thought-leaders

265

Andrew Flower

Alvarez & Marsal

Paris www.alvarezandmarsal.com anflower@alvarezandmarsal.com Tel: + 33 789 52 80 93

Biography Andrew has over 30 years’ experience providing expert evidence on damages in international arbitration – commercial and investor-state. He has provided oral evidence in over 40 arbitrations and written evidence in over 150. He has been appointed by the ICC Centre of Expertise; approved by parties as tribunal expert; assisted parties in posttransaction disputes and acted as determining expert. Andrew was previously the global head of disputes at a big four firm. Andrew speaks English and French.

266

Expert Witnesses

What sorts of matters are you most active on at present?

Throughout my career, I have worked on a wide variety of matters, both geographically and by industry. Certainly, one sees hot spots from time to time (renewables and government regulation, for example) but the broad spread remains across both commercial and investor-state matters. Long may this continue, as it’s one of the fascinating elements of the work. Often in arbitration there is a substantial delay between the causal event and the dispute – for example, the various disputes arising out of the Arab Spring and what followed.

Which key qualities and attributes do successful expert witnesses need to possess?

I’ve said previously that the expert community has been getting a bad rap of late: either for being ships passing in the night or showing an unwillingness to work with opposing experts. However, I do feel that experts need to recognise the fundamental importance of their “independence” from this paying client – in the sense of not being willing to take unsubstantiated or evidently extreme positions. All this helps individual experts demonstrate their “reasonableness” to tribunals.

What are the main challenges you face when resolving complex damages questions?

Without delving too much into the technical, I think there are three main issues. The first is simply ensuring that there is evidence to support your damage assessment. The second is to ensure that it is grounded and reasonable. We all know it is

too easy for a DCF to be effectively “rubbish in – rubbish out”: an immediate question I ask on looking at a DCF is how has it been tested by reference to other valuation methodologies? Lastly, how do we tackle “black swan” events. The answer to this can wait for next year.

a loose group of hobbyists who did the work as a sideline to a cadre of “professional” experts assessed by various publications such as this. This trend is only going to continue with further specialism in many areas over issues of industry, regulation and geography. I do think there will remain a core role for generalists where an understanding of damages theories remains core.

How has the arbitration market demonstrated its resilience in the face of challenges posed by covid-19? Do you have any tips for counI think from a procedural aspect the arbitra- sel on how to use an expert tion market has demonstrated extraordinary team effectively? resilience in the face of covid-19: the world has moved seamlessly to virtual hearings, virtual conferences and the like. It will be interesting to see how much of this sticks when we return to some form of normal.

How would you characterise the current perception of expert witnesses in the market?

As noted above the expert community has been getting a bad rap of late: either for being ships passing in the night or showing an unwillingness to work with opposing experts. One thing that might help change is more disclosure and commentary by tribunals in awards (and thus the press) on whether experts have been helpful in assisting tribunals render awards and on the quality of their evidence generally. This ties to the general move to greater transparency we are seeing in arbitration as a whole.

Where do you think expert witnesses work is headed in the future?

Engage early! While not compromising the independence of the expert and their responsibility to the tribunal, it does allow an expert (and their team) the time to provide input and advice on the preparation of a claim (or its defence) to the client. There can be significant cost and time savings in so doing, even if there is an element of upfront investment. We are seeing this as third-party funding becomes increasingly important.

What steps can senior practitioners take to assist the next generation of experts? I think it is critical that senior practitioners look to bring on younger practitioners and to create a legacy. This requires them to pass on contacts to the next generation of experts and to ensure that this next generation has the opportunities I had – to give evidence themselves and to be part of the class of “future leaders”.

My career has developed in an era where the expert witness has changed from being

Peers and clients say: “Mr Flower is a leading expert in the field of international arbitration” “He is calm, measured and assured in his delivery of evidence”

whoswholegal.com/thought-leaders

267

Juliette Fortin

FTI Consulting

Paris www.fticonsulting.fr juliette.fortin@fticonsulting.com Tel: +33 1 40 08 12 41

Biography Juliette has more than 25 years’ experience in financial analysis and since 2006 has specialised in the quantification of damages claims in domestic and international disputes, accounting issues, and valuation in M&A contexts. Juliette is qualified as a chartered accountant in England and France. She has testified more than 20 times before commercial and investment treaty tribunals in English and French. She is a senior managing director and heads the Paris valuation and disputes team of FTI Consulting.

268

Expert Witnesses

The views expressed herein are those of the author and not necessarily the views of FTI Consulting, Inc, its management, its subsidiaries, its affiliates, or its other professionals.

What motivated you to special- You are on the executive board ise in arbitration expert wit- for, and treasurer of, Arbitralness work? Women. What are its aims and I specialised in arbitration expert witness why are such organisations so work when I moved to FTI consulting in important? 2010. I was very lucky to work alongside more experienced experts, from whom I learnt a lot, in terms of technical aspects, problem-solving and communication. What I enjoy most about international arbitration is the variety of complex damages issues; the high expectations of tribunals, counsel and clients, which create healthy competition among experts; and the thrill of the hearing phase, where you get the opportunity to convey to the tribunal your opinion and underlying assumptions. Working with top-quality lawyers is also very rewarding.

ArbitralWomen is a worldwide organisation that has the objective of promoting women in dispute resolution through various means, such as events, mentoring and sponsorship. I think such organisations are important to make progress on the topic of equal access to opportunities for everyone. In the same vein, I am also a diversity ambassador within FTI Consulting and a signatory of the Equal Representation in Arbitration Pledge and the Equal Representation Expert Witnesses Pledge.

What changes have you noticed How does FTI distinguish itself in arbitration expert practice from the competition? since you started in the field? I think that what makes FTI Consulting Over the past 12 years, I have noticed an increase in the number of international arbitration cases held in French. While cases in French represented a marginal part of my activity four or five years ago, they now represent approximately half of my activity.

You have worked on many arbitration matters in Africa. What particularities are there to expert witness work in Africa?

In the past few years, I have been involved in a number of commercial and investment disputes involving activities in Africa, both for corporate clients and governments. One characteristic of work involving Africa, or emerging markets in general, is the significant weight of geopolitical factors on the assessment of damages. Another recurring theme is the challenge of collecting evidence, although this can also be the case in developed countries.

unique is its capacity to offer not only the right quantum expert for a case in any of the arbitration places around the globe, but also the right team of top-quality consultants and industry specialists (energy, construction, financial services, etc) working alongside the quantum expert. Our team and network are of top quality and significantly larger than those of our competitors, but still very agile, and this enables efficient collaboration across borders and practices.

What are the greatest challenges you face when handling damages quantifications in international commercial and investment arbitrations?

The challenges vary according to the case. They can lie in the determination of the damages framework. They can also centre around the gathering of evidence.

Sometimes, the challenge is simply to translate sophisticated reasoning and calculations into a clear and concise message. It can also be about educating the client about the role of the quantum expert in international arbitration and the necessity of providing reasonable assumptions.

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

I would like to continue growing our next generation of experts. I would also like to broaden our pool of Paris-based industry specialists, which consists of construction and energy experts at this stage. I would intend to work more and more on Latin America cases, as I speak Spanish and the caseload is significant.

What advice would you give to younger experts hoping to one day be in your position?

I would first suggest that they should own their career and seize all opportunities to gain experience. Becoming an expert is about applying your technical knowledge and professional judgement to different complex situations and being able to communicate your conclusions clearly both in writing and orally. Hence, the more you practise, the better you get. Second, I would recommend they find a mentor who can be a guide, a sounding board, throughout their career. I found myself that this was extremely helpful. Third, I would advise that they build relationships with lawyers of their generation, as they represent the future cohort of law firm partners who will eventually provide opportunities to work on their cases.

Peers and clients say: “She has an excellent reputation for mining projects” “Juliette is superb!” “She has a great ability to work as a team” whoswholegal.com/thought-leaders

269

Jeffrey E Fuchs

Delta Consulting Group Woodbridge, VA www.delta-cgi.com

jfuchs@delta-cgi.com Tel: +1 703 580 8801

Biography Jeffrey E Fuchs, PE, CPA, chief executive officer and co-founder of Delta Consulting Group, has nearly 40 years of experience in the engineering and construction industries and has testified in over 70 cases in regions across the world. He has provided testimony for complex litigation and arbitration on numerous matters involving delay, disruption, damages, loss of productivity and defects, among others. Mr Fuchs has a BS in civil engineering and an MS in construction engineering and management from the University of Maryland; and is a licensed professional engineer and a certified public accountant.

270

Expert Witnesses

As CEO of Delta Consulting Group, what are your main priorities for Delta’s development over the next five years?

We have a robust business plan for growth that includes a strong commitment to maintain our culture and quality work product on every job for every client. One aspect of the plan is to continue the expansion of our international practice and to broaden the depth of our existing services. Delta became a 100% ESOP (Employee Stock Ownership Plan) company in 2018; one of a few in the consulting industry. Over the next five years, our priorities will continue to be to provide cost-effective, high-quality work products for our clients, while maintaining our team-oriented, hardworking, friendly culture for our employees.

Are there any recent cases that you have found particularly interesting? If so, why?

One of my most recent cases involved a large mining project at the Arctic Circle. The work that Delta’s US experts performed on the case was conducted during covid-19. The client and their attorneys were based out of Canada, during the border lockdown period, so working through the case from beginning to end created some unique challenges and opportunities. The hearing lasted three weeks, and it was conducted entirely on Zoom. The experts used a joint report and agreed amounts to narrow the issue and the claims.

What industries seem to be experiencing more growth in mediations and arbitrations?

Recently, we have experienced an increase in disputes in the energy, power, oil and gas industries. These industries are a significant component of every aspect of modern life and impacts every country in the world, so disputes seem to be inevitable. Virtually every type of fossil fuel, wind, solar, hydroelectric, traditional generation, and fuel production, along with

generation, transmission, distribution, and storage, involves construction contracts and numerous companies are involved. If one aspect of the project experiences delays, defects, cost overruns, or loss of productivity, there is a good chance that the owner and contractors will require experts to resolve the dispute.

What advice would you give younger experts undertaking their first hot-tubbing process or joint reports?

I have been involved in hot-tubbing as well as the use of joint reports, for many years across many different industries. Often these cases allow the expert involved to narrow the differences in the pretrial stage. Hot-tubbing provides a less formalised, and more streamlined approach for the parties involved. The ultimate goal is a narrowing of the differences between the parties, which makes the legal process more effective and easier for everyone, especially for the tribunal. In today’s environment, younger experts need to be flexible and work efficiently and effectively from anywhere.

telecommunications satellite. The satellite case was a $1 billion project between a very large UK and US entity. This was a very complex damages case that involved highly technical issues as well as a lost profits analysis.

What distinguishes Delta Consulting Group from its competitors?

The strength of our company is in the next generation, and I really enjoy working with our younger experts on these complex jobs. I find the dual role of expert and mentor to be very rewarding and it is a great benefit for our clients to have a new generation of testifiers with this level of expertise working on their jobs. One thing I am particularly proud of is that the majority of our experts have testifying experience and they bring a breath of fresh experience and knowledge to matters involving loss of productivity, schedule and delay analysis, quantum/damages, as well as fraud, investigations, and intellectual property.

What is the key to becoming a successful witness in largescale, high-profile construction What is it about being an expert arbitration? witness that you enjoy the Learning how to listen and communicate most? effectively are really the keys to success. I love the challenge of working with a diverse set of clients, cases, and employees. You must always be engaged and focused as an expert witness, which makes the job exciting. Additionally, watching others grow at Delta brings me great joy. It has been very rewarding watching these experts succeed and create their own client relationships.

As a Delay, Quantum and Loss of Productivity expert, you have extensive experience working on a wide range of projects. What is one of the more unique cases you have testified on?

You can help your career by adding construction experience and certifications, but as an expert you must be able to explain your findings to your clients and their lawyers, and then to the arbitration panel. My licenses (PE & CPA) have always been important because they add to my credibility, as both have strict codes of ethics that the person is required to adhere to. On high-profile cases, for example the work we have done on various cases involving the Panama Canal, the clients and their lawyers want an expert who will review all the relevant facts concerning the case, analyse them thoroughly, and then clearly and concisely explain the case.

One of the most interesting cases I worked on involved an international

Peers and clients say: “I would really recommend Jeffrey” “Jeffrey is exceptional for international arbitration” “He is extremely professional in his approach” whoswholegal.com/thought-leaders

271

Amit Garg

Secretariat

Singapore www.secretariat-intl.com agarg@secretariat-intl.com Tel: +65 6225 9600

Biography Mr Garg is the managing director of Secretariat’s APAC operations, and for the past decade he has been involved in providing dispute advisory services from Singapore and Hong Kong. He was previously based in the USA, where he worked in the construction industry, performed research and provided consulting advice. He has extensive experience in performing delay analysis on complex international projects across the world and has served as an expert in arbitrations under the ICC, AAA, ICSID, HKIAC, SIAC, DIAC and ADCCAC.

272

Expert Witnesses

Why did you choose to specialise in providing advisory services on construction disputes?

Each dispute involves different project conditions and poses a new challenge. As such, in addition to being able to use my education and experience, it is always invigorating to be able to decipher the underlying reasons that caused a project to be in trouble.

now consist of more than half of the top 100 contractors (ranked by revenue outside their country of origin), in comparison to over 15 years ago when they formed only one-third of that list. In particular contractors from China, South Korea and Turkey have increased their footprint in the global marketplace. This has been a growing source of work for consulting firms operating in the disputes advisory services.

Which types of projects are resulting in the most disputes at the moment? Why do you think this is?

What have been the main challenges facing construction expert witnesses over the past year?

Large projects, particularly those involving transportation and power infrastructure, O&G / mineral production and processing, have a greater tendency to generate disputes. This is because these projects have unique design, are complex to construct, and usually involve numerous parties that have not worked together previously. On occasion, these projects may be located in parts of the world where the parties executing them may not have significant experience. Parties frequently underestimate the risks arising from the above-mentioned factors, and this results in conflicts during project execution.

To what extent are you seeing an increasing amount of construction services provided by Asia-based contractors, rather than their European and American counterparts?

There has been a significant shift in the amount of work being done globally by contractors from Asia. Asian contractors

On complex matters, parties engaging experts may not have a clear understanding of the merits of their case and in turn their potential exposure. This becomes a challenge as it results in parties having a preconceived notion of their entitlement. As such, it is important for good experts to provide an objective view early on in their engagement.

As managing director of the firm’s regional operations, how do you see your practice developing over the next few years?

Although the vast majority of our past work has been global in nature with arbitrations seated outside Asia, we are now seeing an increasing amount of dispute work from within the region with arbitrations seated locally in Singapore or Hong Kong. As such, our practice is now starting to do more work for Asian clients, both employers and contractors, irrespective of the physical location of their projects.

What benefits does hot-tubbing offer to arbitration proceedings where you have to give expert testimony?

Hot-tubbing has become increasingly popular over the past few years. Hot-tubbing allows the tribunal to get views from the two experts simultaneously on issues that allow them to identify the key disagreements and reasons thereof. I personally look forward to the process as I find it to be timely and useful, since it usually takes place at the end of the crossexamination process and allows me to express conclusive opinions in light of the other expert’s final views.

What makes Secretariat stand out from its competitors in the market?

Secretariat experts operate with a singledminded obligation to provide the clients with a work-product that sets a benchmark in the industry in terms of its quality. Our work-product has become our biggest marketing tool. Further, in the expert consulting industry, clients value an objective assessment that helps them in gaining a clear understanding of their potential exposure and entitlement. The ability to provide such work-product and advice is entirely dependent on the quality of our people. We therefore strive to develop personnel that possess a combination of intellectual ability, relevant experience and integrity.

Peers and clients say: “Amit is as technically accomplished as you will find anywhere” “His technical capability, analytical insight and professional integrity are unsurpassed in the industry” “He is an excellent communicator and very good with clients” whoswholegal.com/thought-leaders

273

Christopher J Goncalves

Berkeley Research Group Washington, DC www.thinkbrg.com

cgoncalves@thinkbrg.com Tel: +1 240 505 6162

Biography Christopher Goncalves is chair and managing director of BRG’s energy and climate practice, where he provides energy industry and quantum expert analysis and testimony for international investment and commercial arbitration matters. He has provided expert services for over 50 international investment and commercial disputes, including oral testimony in over 18 arbitration hearings. Mr Goncalves also has over 30 years of experience in energy sector dispute resolution, strategic and commercial advisory, project development, and finance and investment.

274

Expert Witnesses

What benefits accompany introducing experts early in the dispute resolution process?

The benefits can be many, depending upon the complexity of the matter and experience of the expert. In my experience with complex energy sector disputes, working early with counsel and clients on the initial evaluation of potential claims, review of critical facts and evidence, exploration of appropriate analytic methodologies, and development of strategic approach can provide significant benefits in terms of developing a solid claim or defence that is based on the facts, consistent with industry practices and conditions, analytically accurate, and therefore highly credible and sustainable for the duration of the dispute. Among my most rewarding professional experiences have been engagements that required working early with clients on large complex matters where my team’s work helped define and determine the overall dispute approach and strategy from the beginning and provided decisive evidence for the tribunal in the final hearings.

Over the past few years, have you noticed any significant methodological changes in the way you conduct your analyses?

Yes, in the world of energy disputes I have found that analysis of causation has become increasingly important for analysis of both the merits and quantum of claims. Because of the large and increasing number of energy disputes, I have found that arbitrators have become increasingly knowledgeable and exacting in their analysis of critical issues. Additionally, in the natural gas, LNG, power generation, and renewable energy sectors where I am most active, the dual trends of market liberalisation and maturation (in terms of scale, competition, depth and liquidity issues) have led to increasingly complex multivariable conditions. I have found that the combination of these trends has made it increasingly important – and challenging and interesting – for clients, counsel and experts to provide rigorous analysis of the underlying cause of harm and damages, and to distinguish those causes from influential factors that may be involved in the broader industry, market, or commercial context for the matter under dispute.

whoswholegal.com/thought-leaders

How does the overlap between your contentious and non-contentious practice enhance your expertise and capabilities?

My contentious and advisory practices are mutually reinforcing, and I maintain them both deliberately, and with equal dedication. Over the first half of my career (to date), I served strictly as an energy industry consultant and adviser on market, commercial, financial and strategic matters related to project development, project finance, and business unit management and operations for natural gas and clean fuels, power generation renewable energy. I became an expert witness for the first time approximately fifteen years ago, and ever since then, the strength of my industry experience, and my economic and financial knowledge of the industry has underpinned and enhanced the depth and credibility of my expert work. But in becoming an expert, I did not stop serving as a strategic, market and commercial advisor to energy industry clients, and I have continued that practice to the present day. In my advisory work, I have often found that my experience with dispute resolution and arbitration has made me a better advisor because I have the experience and understanding of what happens in dispute resolution in situations where the underlying investment thesis, market and/ or commercial conditions, of contractual practices for a project or business come undone. In each of my contentious and advisory practices, it helps to understand where the “rubber meets the road” in the other arena.

What distinguishes Berkeley Research Group from its competitors when it comes to assisting clients with climate change matters? The imperative of climate change mitigation and facilitating the energy transition have become an abiding passion of me and my colleagues. These are enormous global and inter-generational challenges that are of a humbling scale seen from our focused practice of just over 40 professionals worldwide. Therefore, our team is focused on providing strategic and tactical advisory services to industry clients navigating the opportunities and challenges of the energy transition, and

275

deep industry economic, commercial and financial expertise to counsel and clients engaged in investment and commercial disputes about stranded or impaired assets, projects, and/or contracts. In so doing, we apply the depth of our industry experience across the energy supply chain, from the production and commercialisation of conventional and clean fuels to the generation, transmission and sale of conventional power generation, renewable energy and electricity storage products.

To what extent are post- pandemic energy transition initiatives “too much, too soon”, and why? Seen from my home in Washington, DC, as well as from the entirety of my international experience, this is a politically delicate question. While the risk and apparent mounting impacts of climate change require that we all manage the energy transition with urgency, it is also true that extreme haste can produce ineffective and/ or counterproductive results in terms of

both GHG emissions and socio-economic impacts. This is because energy transition policies and strategies need to be realistic and pragmatic about maintaining adequate energy supply in the most economically and environmentally efficient way possible. When climate aspirations run to quickly ahead of these realities, for example, by seeking to ban or defund all fossil fuels before renewable energy and storage technologies can pick the slack, the results can be quite dire in terms of increasing GHG-intensive coal consumption at the expense of cleaner fuels, increasing GHG emissions, driving up energy prices to industries and households, stimulating inflation, and diminishing economic growth. In my view, maximising the velocity of the energy transition to clean fuels and renewable energy will require that countries and companies pursue a strategic approach that is pragmatic, well-sequenced and firmly grounded in the realities of energy economics, investment, finance and operations. Such an approach would maximise the availability of affordable clean energy

supply throughout the process and phase out the most GHG-intensive energy supplies in a sequenced approach after clean energy supplies are ready to maintain reliable, affordable supply.

As chair and managing director of BRG’s energy and climate practice, how are you looking to further build the firm’s offering in these areas over the next couple of years? Our practice is proud of what we have built so far and looking forward to enhancing and deepening our work and capabilities in clean fuels, renewable energy and energy storage above all. We intend to expand our strategic, transactional and commercial advisory services in these areas. We also aim to expand our dispute resolution work in relation to stranded or impaired assets, projects, and/or contracts that may result from the energy transition. In doing these things, we expect to expand our team’s overall size, range of expertise and international footprint quite substantially.

Peers and clients say: “Chris is incredibly astute, bright and hard working” “His work ethic is second to none, his analytical skills first rate and he is very client facing” “He displays exceptional commercial application and attention to detail” “Chris can take a very complex economics or industry-based issues and boil them down to digestible fundamentals” 276

Expert Witnesses

events

Visit www.IPBC.com to see our upcoming events schedule.

Dean Graves

Alvarez & Marsal

Houston, TX www.alvarezandmarsal.com rdgraves@alvarezandmarsal.com Tel: +1 713 221 3912

Biography Dean Graves is a managing director with Alvarez & Marsal in Houston. He has more than 40 years of accounting and finance experience with emphasis on the BTU value chain including upstream oil and gas, midstream, refining, retail gasoline, power generation and chemicals. Dean is a CPA and a CFA charter holder and has provided expert testimony in US federal and state courts as well as numerous international arbitration forums and ad hoc arbitrations. Accordingly, he is credentialled in both accounting and finance. He has served as an expert, a court-appointed special master, and an insurance appraisal umpire. Dean’s bachelor of science degree is in chemistry and his master’s degree is in accounting.

278

Expert Witnesses

Describe your career to date.

I have been practising for 40 years and have served as an arbitrator, insurance claims umpire, expert witness, court-appointed expert and business advisor. I have performed analyses related to arbitration, international claims, litigation, business interruption insurance claims, construction claims, business and asset valuation, post-acquisition disputes, contract disputes and regulatory compliance. I have experience in oil and gas, power generation, mining, apparel, consumer products, manufacturing, wholesale distribution, pharmaceuticals, biomedical research and professional services. My career has been one of continuous learning and enormous personal and professional reward.

resolving complex damage issues?

I generally begin with reading the key pleadings from each side to develop an independent view of the issues. I thoroughly research the subjects involved in the matter. I develop my independent views on the matter, opinions that I believe could be formed, analysis that I believe would be beneficial, and the documents and research necessary to support such opinions. When discussing my views with counsel, I provide topics and areas in which I am able to form opinions and provide topics and areas where I believe counsel should obtain an industry or technical expert. From there on, it is an iterative process where I learn more facts of the case, review additional discovery, analyse data, and integrate my opinions and calculations with those of any of the technical experts.

You have extensive experience in a wide range of industries. What are some of the key fac- How has covid-19 affected tors you take into account commercial arbitration? when holding yourself out as Originally, courts and arbitrations extended an expert across industries? deadlines in hope that covid-19 concerns Accounting and financial analysis is often independent of the specific industry. In other instances, operational activities can be so intertwined with accounting and finance that an industry expert can be very helpful. In such instances, I have relied on industry experts (ie, technical experts) in order to understand the processes and timelines which enabled me to prepare a reliable accounting and finance analysis.

In your experience, what are some of the most important attributes of an effective expert? A credible, effective expert must be intellectually honest in his or her analysis and testimony. This includes weighing the data and circumstances irrespective of whether or not it is helpful to my client’s case. An effective expert is able to explain complex topics in an easy-to-understand manner to the target audience.

What are some of the key processes you undertake when

and restrictions would be eased, and the industry could resume in-person hearings, depositions, and meetings. After realising that covid-19 wasn’t going to be resolved quickly, the industry pivoted significantly to rely on technology and video conference meetings to keep cases moving forward. Since the pandemic began, I have worked on several multi-hundred million US$ cases, as well as several smaller matters, that have primarily been organised through Zoom and other online platforms. This shift to a heavy reliance on technology for certain aspects of cases is more efficient in some sense and I don’t see that changing after the pandemic ends, but nothing can replace the productivity a team gets when getting in a conference room and talking through the issues in person.

You have been at Alvarez & Marsal for more than 16 years. What is the glue that has held you there so long?

globally. When I joined the firm it was 20 years old with 400 professionals. Firm management has allowed and encouraged practitioners to surround themselves with like-minded people with integrity, objectivity, quality work etc. The A&M platform is large enough to accept the vast majority of the largest, most complex matters, yet is nimble and responsive to clients’ expectations. The firm’s breadth of expertise enables us to begin adding value in the short term and the firm’s depth of expertise enables us to bring long-term value to our clients.

What advice would you give someone beginning a career in your field?

Develop your technical/academic skillset as much as you can in the first 10 years of your career. At the same time, deliver great work and develop relationships with your peers in those 10 years. Initially, they will be gatekeepers and influencers in the expert hiring process and will eventually be decision-makers. Long-term, trusted relationships and a history of delivering great work is a winning formula for success. Credential your skillset with widely recognised certifications. Finally, work for the very best-quality organisation that you can and strive to raise the bar.

You have had a successful, 40-year career. What would you like to achieve that you have not yet accomplished?

I am in my 40th year of practice and have been involved in some of the highestprofile litigations and arbitrations across the globe. Through that time, I feel as I have represented my firm, my clients, and the profession overall with integrity and high-quality work product. I am actively coaching, mentoring and teaching these practices to the analysts and experts around me. My goal is to leave the firm and profession as a whole with the next generation of highly experienced, qualified and intellectually honest financial experts.

Alvarez & Marsal is an over 35-year old firm with more than 5,000 professionals

Peers and clients say: “Dean is an incredibly safe pair of hands when it comes to oil and gas exploration” “He has great knowledge and expertise in arbitration proceedings” “An excellent choice for forensic investigations and disputes” whoswholegal.com/thought-leaders

279

Mustafa Hadi

Berkeley Research Group Hong Kong and Singapore www.thinkbrg.com

mhadi@thinkbrg.com Tel: +852 3611 8108 | +65 6407 1172

Biography Mustafa Hadi is head of BRG’s Asia-Pacific region. He specialises in addressing issues of valuation, damages and accounting in complex commercial and investment treaty disputes, including M&A, private equity, joint venture, shareholder, breach of contract, financial services and intellectual property disputes. Mr Hadi has been instructed as an expert in international arbitration and in court and is experienced in oral testimony. His experience spans matters involving the ICC, UNCITRAL, HKIAC, SIAC, DIAC and CIETAC, and in the courts of the UK, Australia, Hong Kong, Singapore, Ireland, the Cayman Islands, the BVI, Bermuda and the Bahamas.

280

Expert Witnesses

As the leader of BRG’s APAC region, how do you see the firm developing in the region over the coming years?

Over the past year, BRG APAC has invested heavily in expanding the scope of specialist industry-practitioner expertise available to clients. We have brought on several senior figures who offer a depth of expertise gained from serving in senior executive roles across key sectors, including financial services, private equity, power and mining. In the coming years, I see the firm deepening our bench of industry experts in areas such as real estate/hospitality, pharmaceuticals, energy and telecoms. I also see us continuing to grow our regional footprint, with Japan being a key new market for us over the past year and going forward. We have also invested recently in our technology and analytics practice, and are increasing our investment in our forensic accounting capabilities to strengthen our investigations practice.

navigate the technical issues in the context of the dispute – not just focusing on their own opinions, but providing a framework identifying the key points on which the tribunal must rule in coming to an overall decision. I find that experts that assist tribunals in this way are well regarded by arbitrators.

Why should neutrality be the foremost value a party-appointed testifying expert embodies?

For tribunals to accept an expert’s opinion, they need to believe in (i) their professional independence and (ii) their technical competence and its application to the relevant facts and issues. While a technical error can be corrected when pointed out, and need not call into question the expert’s competence, perceptions of independence are binary, and once a tribunal’s trust is lost, it is difficult to regain. Independence is therefore a threshold condition for an expert to be successful.

What challenges has the How has the dynamic between increasing volume of data in arbitral tribunals and experts commercial disputes posed? changed over the years? How have you ensured you are Tribunals face increasingly complex tech- well equipped to handle them? nical issues. For experts to be of assistance, as well as displaying deep technical knowledge, they need to help tribunals

of expertise and become proficient with the latest technologies that can be used to filter and analyse this information. In June 2020, BRG announced the strategic addition of a technology and analytics practice to our core capabilities in APAC. The new team’s combination of remote forensic collection capability and machine learning-assisted tools that improve review speed and accuracy have measurably helped our clients reduce the man hours invested in the overall document review exercise by up to 60–70 per cent.

What qualities make for an effective expert witness?

A thorough knowledge of the subject is obviously a prerequisite but is not sufficient. Equally important are: structured and clear-headed thinking; independence; and the ability to convey complex ideas succinctly to a non-specialist audience.

What would like to achieve that you have not yet accomplished?

To switch off email for three weeks and enjoy the Trans-Siberian Express with my family. Switching email off for three weeks I am yet to accomplish!

The increasing volume of data in commercial disputes has challenged financial experts to upskill beyond their core areas

Peers and clients say: “I think he is fabulous – my go-to expert” “Mustafa is super bright, hard-working, diligent and won’t rest until he’s thought the entire thing through” “As well as having excellent technical expertise, he is detail-focused and clear” “He is a pleasure to deal with; very client-friendly, and inspires confidence” whoswholegal.com/thought-leaders

281

Laura Hardin

Alvarez & Marsal

Houston, TX www.alvarezandmarsal.com lhardin@alvarezandmarsal.com Tel: +1 713 547 3756

Biography Laura Hardin is a managing director with Alvarez & Marsal disputes and investigations in Houston. She has more than 25 years of experience in business valuation, damages assessments, and forensic accounting in international arbitration. Ms Hardin has served as an expert witness and provided expert guidance on damage quantification for both investment treaty and commercial matters and has submitted evidence in international arbitration cases brought before ICC, ICDR, LCIA, SCC, ICSID and ad hoc tribunals.

282

Expert Witnesses

What motivated you to pursue a career in advisory and dispute resolution services?

My career path to becoming a testifying expert has been circuitous; I certainly did not grow up wanting to be a damages expert nor would I have ever thought growing up that this career path would be the one I ended up taking. My undergraduate degree was in Russian language and literature, and my initial idea was to become a teacher. After student teaching, I decided to pursue an MBA. I began with Price Waterhouse in corporate finance and unexpectedly was staffed on a dispute engagement. Identifying the key points of an analysis, convincing the trier of fact and presenting the opinions in as clear and compelling a way as possible was engaging work for me. It also gave me the opportunity to be a teacher, which was my original career path. International arbitration has also given me lots of opportunities to use my Russian language skills, so my career path has, in many ways, come full circle.

What is it about your role as an expert witness that you enjoy most?

Testifying is challenging, but most testifiers will tell you that, provided you are well prepared, there is nothing more exhilarating than a good testimony. Testimony is particularly rewarding if I feel I have made a connection with the tribunal and when they ask lots of questions, which indicates to me that they are engaged, are listening and they are interested in the bases of my opinions. While I enjoy testifying, the best moment is when I am released from the testimony and it has gone well. I also very much enjoy the intellectual challenge of developing testimony main themes and demonstrative exhibits that really summarise the key points of my analysis and make clear to the tribunal why this opinion or assumption is correct and should be accepted.

How do you effectively prepare for a testifying case?

One of the deciding factors in effective testimony is being thoroughly prepared for any

and all potential questions. This process ideally starts months before the testimony and includes reviewing all of my reports, exhibits, and appendices, as well as the legal submissions, particularly where they discuss key damages issues. Preparation means revisiting all the key assumptions of the calculations and re-testing them and conducting additional research if necessary. It also means thoroughly reviewing the opposing expert reports, to identify the key weaknesses in their calculation and make sure all of their critiques have been adequately addressed. Ideally, preparation involves meetings with counsel (these can be conference calls or Zoom meetings) to go over what they believe are key areas of potential questioning. This is helpful because counsel has different priorities and a different viewpoint often on what are potential issues than the damages expert. Finally, it is also very beneficial often to attend opening arguments for both sides and the testimony of key witnesses, particularly if they are expert witnesses whose input and calculations feed into my analysis. This is an arduous and exhausting process, but there is no substitute for being thorough and meticulous in your preparation to ensure a successful testimony.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why?

I think cross-examination is not always the most effective method for the tribunal to understand the key issues in a case to help them make their decision. The objective of counsel seems to be to trip up the damages expert, or to make them look bad or incompetent. I think that if I would change one thing about giving expert testimony, I would want the tribunal to be engaged more in asking the questions of experts, whether this be through direct questioning after the cross-examination or through witness conferencing. The tribunal’s motivations are necessarily more focused on understanding the differences between

the two expert calculations, and why one assumption might be more appropriate than another in a damages calculation. Whereas I have sat through hours of crossexamination, which does very little to illuminate the key issues in a particular case, questions from the tribunal seem always to add enormous value in focusing in on the major areas of disagreement and clarifying expert positions and major assumptions.

What makes Alvarez & Marsal stand out for its competitors in the market?

Alvarez & Marsal is well known in International arbitration with a team of experienced and respected experts located in key areas around the world. Our practice is supported by very experienced and knowledgeable functional and technical experts. Our senior leaders are involved at every stage of a dispute or investigation, and we consistently serve as experts in critical and high-stakes matters. Alvarez & Marsal leverages its restructuring and turnaround services heritage and deep expertise in certain key industries such as energy, telecommunications, financial services, real estate and construction.

What is the best piece of advice you’ve ever received?

In my career I was advised that, as testifying experts, we have to be very conscious of the positions we take on a case and the potential impact of these decisions on our credibility as experts. I was advised to be aware of any tendency towards ethical drift, in taking positions that were too aggressive and were not supportable. This is a very gradual process that can happen over time without realising it if you are not paying attention. Ultimately, our value as experts is our reputation, and that we are considered credible experts to tribunals. I think the best advice I ever received was protecting this status of being a credible and trustworthy adviser at all costs, which means not taking aggressive or contradictory positions, even when counsel or the client is urging me to do so.

Peers and clients say: “A really smart expert who explains complex ideas in simple and compelling terms” “She has considerable experience working on Russian matters” “She is great to work with on international disputes” whoswholegal.com/thought-leaders

283

Roula Harfouche

HKA

London www.hka.com roulaharfouche@hka.com Tel: +44 7590 485 806

Biography Roula Harfouche is a partner with HKA in London. She specialises in the assessment of damages and complex valuation issues in litigation and international arbitration contexts. She is experienced in matters involving breaches of contract, investment treaty claims, transaction-related disputes and intellectual property infringements. She has been valuing companies, listed and unlisted securities, and intellectual property rights in commercial and contentious contexts since 2000, and has provided valuation or damages assessment services in over 80 disputes.

284

Expert Witnesses

What inspired you to pursue a career as an expert witness?

It was mainly the mix of intellectual rigour and showmanship that I observed in more senior expert witnesses with whom I worked that inspired me to see if I was up to the challenge. Being an expert witness is very difficult, in particular if you take your duty to the tribunal/court seriously, and therefore have to resist pressure from your client and their counsel as well as sustain attacks from the opposing side’s counsel.

clients one or two women in their lists of proposed experts, and to challenge each other if the lists they put forward are not balanced. When I started, there were three or four female testifying experts in London in total. There are now many more, in London and internationally, so the traditional excuse of “there aren’t any female experts” no longer holds. Female experts should also continue to help each other, for example by recommending each other to WWL, and by mutual referrals.

appropriate and regular marketing and business development with the largest law firms in several locations to be frontof-mind of as many counsel as possible. A bit of luck to get your first big case and/ or sponsorship by an established expert is also very helpful. If success means to become known for a particular trait or type of dispute or skill, such as valuation, then focusing on this area both in terms of your own training/professional development and in terms of business development and marketing with the law firms that focus on the relevant types of disputes is likely to succeed.

What do clients look for in an What effect does a more intereffective expert witness? ventionalist approach from Clients who are well-advised by their tribunals have on independent counsel look for an expert who is both expert work? How do you coordinate on knowledgeable and convincing so as to In my experience, when the tribunal is cases when working alongside maximise their chances of obtaining a good more prepared and hands on, this has led experts with other areas of award from the tribunal/court. These are to faster and better use of expert witnesses expertise? the clients and counsel I work with and would like to continue working with, as I am convinced that they maximise their chances of obtaining the best and fairest results. Clients who have a hopeless case or are ill-advised by their counsel unfortunately tend to look for an expert who will support maximum or minimum damages, depending on whether the clients are claimant or respondent, and who are ready to say virtually anything with conviction. I am not sure to what extent the second route still works, but sadly I still see it used.

What steps can be made to increase diversity in the arbitration field?

Diversity has increased significantly in the past 20 years in which I have been practising. The ERA pledge has helped, even if it focuses on arbitrators, and I trust that the recently launched Equal Representation for Expert Witnesses pledge will work for expert witnesses. In my view, some of the steps that would help are for counsel to make sure they always put forward to

both before and during hearings. The tribunal can zoom in on the relevant issues before the hearing, and can stop counsel wasting time on irrelevant or peripheral issues during cross-examinations. The tribunal can also ask for a meeting of experts and a joint statement of experts setting out areas of agreement and disagreement, which then helps better focus the hearing. Finally, the tribunal can ask for a hot tubbing session and direct that session themselves by asking the experts specific questions aimed at truly understanding why the experts differ to allow the tribunal to make a fully informed decision rather than spend time watching counsel trying to discredit the experts.

What is the key to succeeding as an expert across multiple arbitration institutions and courts in a wide range of jurisdictions?

It can be challenging to have different experts on a case, in particular for the damages expert who has to rely on the opinions of other experts and bring it all together in their calculation of damages. In my experience, if the other experts are in your own firm, for example, technical/ engineering experts and damages experts as we have at HKA, then coordination is much easier. If the technical or market expert is external, then making clear who is responsible for checking that expert’s findings, ie, counsel or the damages experts, will help avoid duplication of efforts or inconsistencies/errors. In my experience, when the damages expert regularly reviews and discusses the technical or market expert’s findings, and can make corrections/suggestions for changes, together with counsel if needed, this leads to better and more convincing reports.

It depends on your definition of success. If success means to be appointed on many of the bigger cases, then the key is

Peers and clients say: “Roula is an excellent expert and is very easy to work with” “She is a noted valuations specialist” “Ms Harfouche has a very strong practice in the market” whoswholegal.com/thought-leaders

285

Timothy H Hart

Credibility International

Washington, DC www.credibilityinternational.com thart@credibilityinternational.com Tel: +1 202 729 6317

Biography Tim Hart is a forensic accountant with an outstanding record as an expert on damages, fraud, corruption and other financial issues. In over 35 years in professional practice, he served as the disputes and investigations practice leader in three global accounting and consulting firms before founding Credibility International in 2010. Tim’s expert assignments include over 60 international disputes, including more than 35 investorstate cases. Tim authored studies of damages in investor-state cases in 2021 and 2014.

286

Expert Witnesses

What is the philosophy behind What is the key to succeeding as your approach as an arbitration an expert across multiple arbiexpert witness? tration institutions and courts in The entire purpose of a client hiring an a wide range of jurisdictions? expert is for that expert to deliver credible information to the tribunal. So, credibility drives everything we do including preparation of expert reports, preparation for the hearing and ultimately testimony in front of the tribunal.

How has the dynamic between arbitral tribunals and experts changed over the years? During my more than 25 years as a testifying expert in international arbitrations, tribunals have become increasingly more knowledgeable about damages issues. As a result, tribunals now are much more likely to ask numerous questions of the experts in the hearings. Additionally, it is more common today for the tribunal to either produce a list of questions regarding damages that they would like the experts to address or request the experts to deliver specific analyses either jointly, or separately.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why? Particularly regarding testimony on damages, cases with large damages claims might benefit from a procedural modification to have a separate chess clock for just damages. With damages normally as the last topic in a hearing, the damages testimony is often greatly compacted and rushed. It has not been unusual in cases involving hundreds of millions or billions of US dollars in claims where the party saved only 20 to 90 minutes of their time to cross-examine me. With quantum of the magnitudes involved, an agreed upon separately timed damages portion of the hearing would add value.

Consistency in the approach of carefully studying the case facts and then performing the proper analysis that fits those facts is the key for an expert having success both in a wide range of forums and over a long duration. With a consistent approach, an expert can be confident that they have studied the evidence and then effectively addressed the particular critical issues for each case.

How do you effectively prepare for cross-examination and/or hot-tubbing?

The single critical ingredient of effective preparation for cross-examination and/ or hot-tubbing is pain-staking immersion in the case documents and analysis presented. There are no shortcuts other than identifying the critical issues and then developing a deep understanding of the evidence that impact those issues. Preparation of this type puts me in a position to explain complex issues in simple terms in order to assist the tribunal’s understanding.

Some practitioners report that conflict of interest rules for experts in arbitration are not tight enough. Do you agree?

As with counsel and arbitrators, when dealing with the ethical issues of conflicts, a good expert is going to steer far clear of the appearance of conflict. The expert needs to study any new case and continuously be aware as cases progress to identify issues that may present the appearance of a conflict. If any reasonable risk of a conflict is identified the engagement should be turned down or in the alternative the situation should be disclosed to

the client, other party and tribunal. The last thing an expert should do is to disadvantage their client by taking on a case that has the appearance of a conflict.

How has the shift to online working and events affected networking opportunities?

Traditional networking opportunities have been extremely restricted during covid-19 but certain other opportunities have been expanded. Without the opportunity to stop by an office, meet for coffee or lunch or attend conferences in person has certainly made it more difficult to meet new people and deepen relationships. However, with the widespread adoption of video conferencing, we have had numerous opportunities to speak to the global arbitration practices of many law firms to present our 2021 study of damages in investor-state cases.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

From my vantage point, diversity has improved in the 25 years I have served as an expert as there are several women attorneys at the top of the profession both as counsel and arbitrators. I have also observed an increase in top attorneys from Latin America and Asia. From what I can see, the same cannot yet be said for attorneys from Africa or people of colour from other places. On the expert side, we are starting to see more women serving as experts in international disputes but not as prevalent as I have seen with the lawyers. The experts are further behind in terms of racial diversity as experts most typically are from western Europe or the US with a smaller number from Singapore and Hong Kong.

Peers and clients say: “Tim is excellent in all aspects” “Mr Hart is fantastic at hearings and dealing with cross-examinations” “He knows how to break down these damages concepts that are somewhat foreign to most lawyers”

whoswholegal.com/thought-leaders

287

Don Harvey

Secretariat

Atlanta, GA www.secretariat-intl.com dharvey@secretariat-intl.com Tel: +1 404 312 2449

Biography Mr Harvey is a managing director at Secretariat (a leading provider of expert services). Mr Harvey provides advice on delay, cost/ damages, and productivity/inefficiency. He has been engaged on many of the highest-profile construction disputes in the world such as the Panama Canal, Wembley Stadium and the Burj Khalifa. Mr Harvey is known for his independence and commonsense approach. He is one of the leading testifying experts in the construction dispute arena. Mr Harvey is a civil engineer with an MBA in finance.

288

Expert Witnesses

What is the most interesting case you have had to date, and why?

The Panama Canal. It has been the most interesting case because of the canal’s history combined with its engineering and construction achievements.

What types of dispute have you seen being brought to arbitration recently and what would you say is driving this?

We have seen many disputes relating to the impact of covid-19. Some projects have truly suffered from covid-19, but the pandemic is also being used to justify some non-performance.

What challenges arise as a result of projects becoming more complex and multidisciplinary?

We are seeing more potential conflicts of interest. In my view, it would be helpful for the industry if clear guidance could be developed on what constitutes a conflict of interest for an expert witness (which is different from the conflict rules for a law firm).

As quantitative analysis in disputes becomes more sophisticated, do you think there is a danger they become detached from the reality of the disputes? If so, how do you prevent this?

more sophisticated, we should not stray from the basic fundamentals of construction disputes such as being able to clearly explain “what actually happened”.

What are the key skills required for acting as an expert in disputes involving mega-projects in the construction field?

Being able to articulate complex issues and analyses, in a simple and independent manner.

What do you think will be the greatest challenges facing construction experts over the next five years and how will you ensure you are prepared to face them? The greatest challenge facing our industry is developing the next tier of top-calibre construction experts. In my view, the industry is heavily reliant on too few names that have dominated the industry for the past 20 or so years. As a firm, we are constantly trying to develop our people and give them opportunities.

What is the best piece of advice you’ve ever received? Surround yourself with people more talented than yourself.

Analyses need to be practical and rooted in the facts. While analyses may become

Peers and clients say: “Don is a skilled testifying expert who holds up well under pressure” “He is always thorough and prepared” “He is perhaps the best at what he does” “He is very collaborative and a delight to work with” whoswholegal.com/thought-leaders

289

Thomas Hofbauer

FTI Consulting, Inc

Munich www.fticonsulting.com thomas.hofbauer@fticonsulting.com Tel: +49 89 242 120 11

Biography Thomas Hofbauer is a senior managing director at FTI Consulting and is based in Munich. Thomas is a civil engineer with 25 years of experience in the construction and engineering industries. He has acted as both delay and quantum expert in infrastructure, IT, power and rolling stock disputes in Europe, Asia, Africa and North America and has given evidence in arbitral proceedings under DIS, ICC, VIAC and Swiss Rules.

290

Expert Witnesses

The views expressed herein are those of the author and not necessarily the views of FTI Consulting, Inc, its management, its subsidiaries, its affiliates, or its other professionals.

Describe your career to date.

In 1997 I started my career as a design engineer in tunnelling projects before I accidentally stumbled into the claims business. Here I learned that the commercial aspect of project delivery has an extremely high impact on the success of a project and that, as a claims consultant I can strongly contribute to that success. After a few years I started with a UK company, which opened the doors to international projects and, finally, disputes. I was then lucky to work with great teams and had the chance to develop my expert witness services in international arbitration outside the UK. And, here we are.

same reasons as construction projects, which helped me a lot as an expert witness analysing delay and quantum in a variety of industries.

it comes to establishing strong relationships, but you got to meet people with a very international background who might not have attended if they had to travel. However, after a few live events you immediately understand that nothing replaces a face-to-face meeting and a relaxed chat at the bar.

What are the most significant challenges you are anticipating expert witnesses to encounter over the next year, and how are you planning to navigate them? How does FTI Consulting I think there are two significant chal- distinguish itself from the lenges: first, to structure and understand competition? the multitude of information from different sources. Second, to translate the outcome of the analysis into a language that a tribunal can put into their legal context to come to a decision that the parties understand and accept.

What makes us unique? With more than 6,950 employees located in offices in every corner of the globe, we are the firm our clients call on when they are facing their greatest challenges and opportunities. For me as expert witness I can draw not only on my competence and expertise but also on experienced experts in almost any question that may arise in a dispute. This internal collaboration makes it easy and efficient for us and also for our clients.

don’t really see an effective alternative. Also, alternative dispute resolution that takes place during the course of project execution helps in that many projects don’t even get into a formal dispute such as arbitration.

Expert witnesses love facts and figures and sometimes hardly understand that someone from a different background doesn’t get the crucial point as quick as the expert did. Therefore, I strongly recommend working on communication skills including report writing and presentations.

How has your background as a civil engineer affected your approach as a delay and quan- There has been a lot of activity tum expert? in Europe regarding infrastrucCivil engineering is a very versatile engi- ture, with major highway and neering discipline that has, in addition to rail projects expected to impact the technical aspects, a very strong focus the market. How effective is on project execution, schedules and costs. arbitration at dealing with such What underrated skills would Also, especially in Germany, there has cases at the moment? you encourage the up-andalways been a very high cost pressure on In summary I tend to say that arbitration is coming generation of arbitraconstruction companies, which has led effective for these projects. Especially as I tion professionals to develop? to a high sensitivity to scope changes, hindrances and disruptions. Being educated in that environment helps to understand why projects fail and how different causes have a negative effect on both the time and budget of a project. This helps to focus on the essential aspects during the project analysis, which enables a robust analysis of delay and quantum. Over time, we understood that other capital projects fail because of the very

How has the shift to online working and events affected networking opportunities? I always thought that online events are good for networking. Not so good when

Peers and clients say: “Thomas provides first-class support to clients” “He is a top choice for domestic and international arbitration”

whoswholegal.com/thought-leaders

291

Liam Holder

Secretariat

London www.secretariat-intl.com lholder@secretariat-intl.com Tel: +44 7500 885797

Biography A fellow of the Royal Institution of Chartered Surveyors (FRICS) with over 30 years’ experience of major international construction projects, Liam is regularly appointed as quantum expert on large international construction and engineering projects. Liam has provided evidence to formal tribunals on many occasions and has testified in many jurisdictions, in person and virtually. Liam was lead technical author for the 4th RICS Practice Statement and Guidance Note for Surveyors acting as Expert Witnesses.

292

Expert Witnesses

What green arbitration trends are currently prevalent in the market?

I’m not sure that I would describe them as trends, but new ways of working that are undoubtedly having an environmental impact are the rise of virtual meetings and virtual hearings. The avoidance of at least some of the long haul travel we were all used to pre-pandemic will obviously positively impact the environment. Also, the replacement of paper with electronic files. We are all now getting quite used to our files being carried in electronic form on our laptops.

‘dumps’ of unsorted, unreferenced electronic data, all of which needs to be carefully reviewed, which takes time and costs money to undertake in what are often very challenging arbitral timetables.

understand the work they have been asked to do in the context of the wider arbitration. We are passionate about developing young experts at Secretariat and are very proud of our track record to date.

What makes Secretariat stand What is the best piece of advice out from its competition in the you’ve ever received? market? In the context of my work as an expert Experience above all. We have a deep pool of international resources led by hugely experienced testifying experts. Quality, integrity and independence are core values and we deliver what we say we will deliver. We try to present our analyses in plain and understandable language to ensure we give tribunals the best assistance that we can.

witness, two pieces of advice: The first from an instructing solicitor at the start of my career who reminded me that I am simply there to assist the tribunal by telling the truth in a reasonable manner. Obvious advice, but in calming a young expert about to give evidence for the first time, it was very helpful. The second from a leading QC who helpfully explained in very careful terms the need to draft reports very concisely – why use 20 words to explain something that could be said in 10?

working as part of expert teams on large commissions. The quality of their work and their engagement with legal teams as those commissions develop will give lawyers the confidence to appoint those younger practitioners as experts in their own right. In addition to recommending younger experts for appointments, there is a very important and practical role that experienced experts can play here in helping younger experts understand the level of quality that is required in their analysis and especially in their written and oral communication. Experienced experts must also ensure they help younger experts

From a business perspective, I would like to continue to help my younger colleagues to get onto the expert ladder. From a personal perspective, in due course I would like to use the experience I have gained to spend more time as a tribunal member myself. Quantum obviously plays a significant part of any large dispute as most are about money and I would hope my experience as a testifying quantum expert would be beneficial as a tribunal member. I have some tribunal experience and have very much enjoyed that work.

What challenges do hybrid hearings present from an impartiality standpoint? What steps can younger experts I don’t think a hybrid hearing should take to improve their chances present any challenges from an impar- of getting testifying appointtiality perspective. The tribunals, party ments? Is there an important representatives and experts in the cases I role to play here for experi- You have enjoyed a very illustrihave been involved in all understand their enced experts? ous career so far. What would duties very well and the fact that some Younger experts should focus on delivering you like to achieve that you may be together in person, while others the best quality work they can when they are have not yet accomplished? are joining virtually, should not impact on the impartial nature of the hearing.

What hurdles do you face with the increased volume of data being used in disputes, and how are you navigating them?

The increasing volume of data is a real problem, which is impacting on the efficiency and the cost of arbitrations. As a quantum expert involved in complex matters, gone are the days when we would receive a carefully referenced file of relevant documents. That has been replaced with what are often simply substantial

Peers and clients say: “He is a standout quantum expert” “Liam is extremely hardworking and responsive” “He is very collaborative and delightful to work with” “Liam is very detailed and thorough” “He showed both integrity and tactical nous” whoswholegal.com/thought-leaders

293

Jonathan Humphrey

HKA

Sydney www.hka.com jonathanhumphrey@hka.com Tel: +61 2 9255 9142

Biography Jonathan leads HKA’s forensic accounting and commercial damages practice in Oceania and Asia. He is a chartered accountant with 25 years of experience advising clients as an accounting and finance expert on complex contentious matters. Jonathan specialises in the assessment of damages in commercial and investor-state disputes, including the quantification of lost profits and business valuations, with an established international background having worked on disputes related to all continents, and experience covering most industry sectors.

294

Expert Witnesses

What do clients look for in an What advantages accompany effective testifying expert? introducing experts early in the Credibility. An “expert” has to been seen disputes process? as exactly that, if one is not credible then a tribunal will not accept their evidence. Credibility comes from a mix of qualifications, experience and gravitas. Experience and gravitas do not necessarily need to come from repeated testimony. At HKA, we have many experts with deep industry knowledge, who may have only testified a couple of times, or not at all. However, they are the best people in their areas as they know the issues inside out.

How has your membership of the Institute of Chartered Accountants enhanced your practice?

Qualifications are extremely important, no matter what your field of expertise, as they support ones’ credibility as an expert. Much of my work involves the assessment of damages, which requires the analysis of historic financial records, the assessment of forecasts and the modelling of counterfactual scenarios. The training and work experience I received while qualifying as a chartered accountant gave a great foundation in understanding financial records and the operations of a business. I draw on this knowledge every day in my work.

How do you effectively prepare for cross-examination when acting as an expert witness? The key is to be overprepared. I go through my reports and identify those areas where I consider I will be cross-examined, so I am ready to explain to the tribunal the justification for my approach. However, there will always be some left field questions which you can’t anticipate, so you need to be ready to address those. After the conclusion of a cross-examination, I often feel that I was too overprepared, but I’d certainly prefer it to be that way than the alternative.

The early introduction of an expert helps in setting a client’s expectations. Often, the client’s view of their damages is different to their actual loss. By explaining the damages approach to a client early, this can often lead to a negotiated settlement, saving much time and cost. In many instances, the damages expert is brought onboard after the submission of pleadings, which can often lead to a subsequent requirement to provide further and better particulars of the damages claim and an adjustment to the amount being claimed. Early involvement will mean that these additional pieces of work are negated and that time is available to do a proper analysis at the outset.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why? My main concern is always time, or rather the lack thereof. As a damages expert, my testimony is generally on the last day of the hearing. Oftentimes, the hearing is overrunning and the schedule is compressed, which eats into the time allocated to the expert evidence. While it may seem strange to want to subject oneself to more time giving evidence, I feel that sometimes tribunals do not have sufficient time to hear the opposing positions of the experts and to get to the crux of the matters in disagreement.

of key words which the legal team then use to search the disclosure database; or I am briefed with the documents which the legal team consider relevant to my instructions. There are advantages and disadvantages to each approach. I do find that, sometimes, the disclosure exercise can be part of a game between the parties, so a proportionate approach has to be taken to the review of some of the information.

What has been your proudest achievement to date?

The first time I gave evidence was in an arbitration in Madrid; it went very well with the tribunal finding in favour of my client and agreeing with my damages calculation. About two years later, the chairman of that tribunal appointed me to act as the independent expert for his client. To have such validation as a junior expert was fantastic, I interpreted it to be confirmation that I couldn’t have messed up too badly.

What is the best piece of advice you have ever received?

This was received from my late mentor and colleague David Saunders. His advice was to make sure you engage with the tribunal, addressing all answers to them as they are the audience. He also told me to always be honest, as we are our reputation, and to not take things personally, after all it is the job of the cross-examiner to try and discredit your opinions.

What challenges do you face with the increased volume of data being used in disputes, and how are you navigating them? The issue with an increased volume of data is that this invariably leads to increased time and costs. I am generally asked to undertake one of three approaches, either to review all the documents; provide a list

Peers and clients say: “Jonathan is a highly recommended expert” “He has lots of experience before tribunals, and great forensic expertise which was pivotal to our client’s case” “He is excellent and precise, with good project management skills” whoswholegal.com/thought-leaders

295

Frank Ilett

Kroll

London www.kroll.com frank.ilett@kroll.com Tel: +44 20 3096 6556

Biography Frank Ilett is a managing director at Kroll. He has specialised in forensic accounting since 1991, spending 22 years in Big Four firms (13 as partner) before joining Philip Haberman at Haberman Ilett, which was acquired by Kroll in 2020. Frank has been actively involved in over 175 matters, including commercial disputes, shareholder disputes, investment treaty claims, transaction-related disputes, negligence claims and disputes arising out of accounting and financial irregularities. His experience spans most industry sectors.

296

Expert Witnesses

Describe your career to date.

Challenging – which is perhaps unsurprising because I love a challenge. I started work at 19 in the incomplete records department of a small accounting firm. I progressed to auditing, preparing management accounts and tax returns, then moved into a Big Four firm. After a short spell in audit and working overseas, I moved into forensic work. I love the intellectual rigour of the work and the fact that the tiniest details, when analysed properly, can change a very large case.

How do you distinguish yourself from competitors in the market?

All clients want experts who offer an excellent quality of service, thorough analysis of the evidence, deep expertise, and the ability to both identify key points quickly, and to explain complex accounting and financial issues in a simple way. I strive to provide these attributes to the best of my ability and in a user-friendly and personable way.

What advice would you share with other experts who hope to one day be in your position?

You have to believe, and know why, you are or can become the best; and follow a plan to get there. That has to be allied with hard

work but it has to be the right work. It is the same in sport: you can practise as much as you like on the driving range but if you practise the wrong things you will never become great at golf. Work out what are the right things and work hard at them.

What qualities do clients look for in an expert witness?

Genuine expertise is a pre-requisite as well as a track record of preparing expert reports and giving expert evidence. Key personal qualities include: excellent communication, understanding the legal team’s needs in the case, confidence in one’s own abilities and opinions, being able to balance leadership and teamwork, staying calm under pressure.

From your perspective as an expert witness, what would you say is the greatest challenge facing individuals active in arbitration in the UK? Technological developments. Individuals, companies and governments retain vast amounts of electronic data. New technology will help us retrieve and analyse that data; experts will need to understand these developments in order to achieve competitive advantage.

Peers and clients say: “Frank is a highly respected figure in the field” “He is excellent for high-stakes arbitration disputes” whoswholegal.com/thought-leaders

297

Mrinal Jain

Secretariat

Mumbai www.secretariat-intl.com mjain@secretariat-intl.com Tel: +91 9819294462

Biography Mrinal leads Secretariat’s Economic Damages and Valuation Practice in India and is recognised as one of the leading expert witnesses in international arbitration by WWL’s Arbitration 2019 to 2022 publicationsand the WWL Thought Leader Arbitration Expert Witness 2021 and 2022. He is a member of the SIAC - Users Council, AIAC Academy, Board of Society of Construction Law (India), Steering Committee of Africa Energy Arbitration Forum, LACIAC and adviser to ENERAP and the Energy Disputes Arbitration Centre (Turkey). He serves on the Advisory Board of C.O.R.D (Centre for Online Resolution of Disputes) and Centre for Arbitration and Research, Maharashtra National Law University in India.

298

Expert Witnesses

What qualities make for a successful expert witness?

A successful expert witness always aims at assisting the court or the tribunal in providing an independent, objective and unbiased opinion in relation to matters within their expertise. The expert report should clearly set out the expert’s qualifications and relevant experience, counsel’s instructions and all the facts and assumptions that form the underlying basis of the expert’s conclusions. The objective should be to provide a robust, reliable and credible analysis of complex issues in simple, clear and concise terms, both at the stage of writing the expert report and during crossexamination. A successful expert is expected to be confident, assertive and truthful in his communication during the cross examination and must have an eye for details.

What inspired you to pursue a career as a quantum and valuation expert?

I commenced my professional career with a big four accounting firm in New York and was truly fascinated by the real-life application of economic, finance and valuation principles in resolving client issues. In my constant pursuit of a more challenging role, I was enthralled by the unique blend of law and finance in expert witness work. This role provided me an opportunity to assist the tribunals and counsels in opining on complex economic, finance and valuation issues in assessment of damages and claims in the dispute resolution process. The rigour, depth and challenge involved in the expert witness work and the interaction with the legal fraternity is, indeed, intellectually stimulating.

How efficient has the shift towards remote and virtual hearings been in the past year? Are they here to stay?

The late Austrian economist and Harvard professor Joseph Schumpeter considered

disruption critical for economic growth and societal advancement. Question is, are we ready to embrace this disruption? Indeed, the arbitration community has shown a desire to embrace technology as an alternative to in-person hearings. The increase in the use of video conferencing and virtual hearing rooms has undoubtedly ushered in greater efficiency and flexibility in arbitration proceedings. However, the issues of screen fatigue and different time zones pose a significant challenge to practitioners. Lockdowns resulted in new norms and acceptances that are likely to continue beyond the crisis. However, in my view, the future would be a mix of virtual hearings and in-person meetings, especially in cases of large and complex disputes where cross-examination and hot tubbing is critical to evaluate the credibility of the experts and narrow down the list of issues of disagreement between the parties.

What has been the most memorable arbitration you have been a part of?

Each dispute is unique and memorable in its own way. Nothing can be more professionally satisfying than a settlement of the dispute based on the expert witness report! I have been fortunate to be involved in such international arbitration cases in the past wherein I had an opportunity to work with some of the finest counsel across the globe.

What challenges do you see the next generation of expert witnesses facing?

First, it is essential to create knowledge and awareness of the role of an independent expert witness in the dispute resolution process amongst the corporates and the legal fraternity in India. The expert witness work is still at a nascent stage in this country (as compared to the developed countries like Singapore, USA and UK) and requires greater acceptability and

recognition by the arbitration community, in general. This is true especially in cases where complex economic, financial and valuation issues are contested. Second, it is pertinent to recognise the need to continue to develop the next generation of expert witnesses and assist the first timers in identifying suitable opportunities to present themselves as an expert. Finally, the expert witness work will evolve overtime with the increasing reliance on technology and artificial intelligence; and changing law of damages.

How do you see your practice developing over the next five years?

Secretariat launched its economic damages and valuation practice in India in 2021. The expansion of this practice into India complements Secretariat’s existing market-leading construction delay and quantum practice in Asia. Therefore, the firm is now well positioned to provide a full range of expert services across Asia. I look forward to sharing Secretariat’s global best practices in expert witness services with Indian corporates and law firms in effectively managing their dispute resolution. In my view, the most important piece for entering a market successfully is finding the right talent to bring together. At Secretariat, we are driven by the desire to build a firm that is set apart by the values of integrity, quality and objectivity that define everything we do. I look forward to delivering world-class solutions every day and attract the best, brightest and most respected names in the industry to our team.

What is the best piece of career advice you have received?

My idol, Howard Rosen once said “change is the only constant in life, so continue to challenge yourself for professional growth to be able to contribute and add value to your clients.”

Peers and clients say: “Mrinal is exceedingly hardworking, highly meticulous and presents independent quantum” “Mrinal is a really good expert who stands out among peers for his ability to assimilate and simplify vast quantities of information” “He is among the best in India” “Mrinal is extremely conscientious and hardworking” “He is a brilliant young valuation and damages expert” whoswholegal.com/thought-leaders

299

Valery Knyazev

Kroll Advisory London www.kroll.com

valery.knyazev@kroll.com Tel: +44 20 30966557

Biography Valery Knyazev is a managing director in the expert services practice, based in the London office. He has over 25 years of professional experience and has been involved in forensic accounting and financial expert engagements in the UK, the Commonwealth of Independent States (CIS) region and in emerging markets.

300

Expert Witnesses

What has been the highlight in your career to date? I still remember, as if it was yesterday, the first time I gave evidence in 2013. It was a big step in my career.

expert and to obtain testifying experience. I do not believe there is a universal recipe to obtain a first appointment but there is a prerequisite to be good in what you are doing.

How has the market changed Where, in your opinion, does since you first started practising? the future of arbitration experts A lot of things are moving online, and I lie? believe, eventually, with further advances in technology everything is going to be online.

You do a mix of investigations and disputes work. To what extent do these two sides of your practice complement one another? All my expert work on valuation/loss/ damage assessments involves analysis of allegedly fraudulent transactions and their effect on quantum. So, in my practice these two streams of work are not separable.

What do clients look for when selecting a forensic accountant? I believe that relevant experience in the industry and the region is a decisive factor in many cases.

There are some challenges and concerns, I would say, perceived, challenges and concerns, about the independence of a party-appointed expert and more focus on a tribunal-appointed expert. However, I do not believe there are any further practical steps to enhance experts’ independence without compromising attractiveness of the arbitration process to the parties involved.

What advice would you give up and coming practitioners hoping to one day be in your position?

If you enjoy what you are doing, stay in the profession, and you have more chances to be really good in it with experience and your time will come to be appointed as an expert for the first time and give evidence. Here is where your story begins.

What are the key challenges upand-coming forensic accountants face in their practice and how can they overcome these? In my opinion the most difficult is the first step of securing an appointment as an

Peers and clients say: “A great communicator who produces well-written reports” “Valery grasped the key issues quickly and responded quickly” “He gives oral evidence well in a measured and authoritative manner” whoswholegal.com/thought-leaders

301

Gervase MacGregor

BDO LLP

London www.bdo.co.uk gervase.macgregor@bdo.co.uk Tel: +44 20 7893 2570

Biography Gervase is a forensic accountant in BDO UK’s London office and is involved in most of their large investigations. He was one of the two inspectors on the DBIS investigation into MG Rover and has been appointed on a number of Section 166 financial services investigations, including into building societies arising out of the financial crisis. Gervase is a member of BDO’s EMEA Forensic Center of Excellence and is a member of BDO’s Global Forensic Leadership Group.

302

Expert Witnesses

Describe your career to date.

I started as a trainee accountant and worked on mainly owner-managed businesses in a variety of sectors, but with a heavy focus on property. I was lucky enough to work on an investigation for a quoted client which had bought another listed company in a hostile takeover bid. The client was Caparo and within a couple of days had discovered loads of credit notes for the pre year-end sales of hi-fi equipment racks. This turned into the leading case on audit liability. I then qualified and four years later became an audit partner although in those days that encompassed a lot of tax, corporate finance and everything else including valuation and more investigations. I worked on a big civil matter – a cold call – and then on the Maxwell prosecutions. When that ended I started working at the United Nations Compensation Commission on damages claims arising out of Iraq’s invasion of Kuwait. After five years of that I worked on a number of large commercial claims including MAN v ERF – the truck case – and shortly after that went to court spent four years as the DTI inspector on MG Rover. In the decade since Rover, I have built up a speciality in arbitration work particularly in energy and oil and gas disputes and in BIT disputes. Along the way I went on to BDO’s board where I have been head of risk and reputation for many years, handling the firms claims and regulatory inquiries.

Practitioners have recorded an increased level of coordination between companies’ regulators and authorities. How is this affecting your practice?

I think it’s fair to say that regulatory action is one of the growth areas in the UK. We saw this after the global financial crisis, although it did tail off. The current one looks like a step change.

assumptions. We still occasionally see hard-coded models, which are of no use to anyone, although it’s some time since I received a model in pdf form only. The point about commercial assumptions is key because tribunals need to know what the main drivers of value are in a damages claim. Having two competing models is also potentially confusing – really a properly designed model should be acceptable to both sides

Has your experience in acting as an arbitrator assisted you in As head of risk and reputation a role as a forensic accounting at BDO, what are your main priexpert? orities for the firm’s developSitting as an arbitrator does make you more ment over the next five years? aware of how evidence is received. It also teaches you that tribunals are often not that interested in the wranglings between opposing counsel, and that’s a reminder of why, as an expert, one needs to remain detached from a lot of these debates. I unfortunately see lawyers treat each other with little respect: it’s not edifying, and I have also seen experts get sucked in.

In your opinion, to what extent do you think DCF models will lead to a more efficient arbitral process?

Like my opposite numbers in the other large accounting firms, it’s first and foremost about reacting to the regulatory challenge, particularly with the onset of ISQM1.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished? I want to ensure that my succession on BDO’s leadership team works. Other than that, I am happy to carry on working in commercial and BIT arbitrations.

On the basis that DCF is the most appropriate valuation method – which is not always the case – it can do as long as you have a model capable of flexing through taking on board each side’s key commercial

Peers and clients say: “Gervase has a vast amount of experience in international arbitration” “He’s very well known for his testifying work” “He is supported by an excellent team” whoswholegal.com/thought-leaders

303

Wendy MacLaughlin

gb2 LLP

London www.gbsqd.com wmaclaughlin@gbsqd.com Tel: +44 20 7520 9330

Biography Wendy MacLaughlin is a chartered civil engineer and a senior partner at GBsqd in London. She has over 25 years of experience in the engineering and construction industry, specifically on major projects in the power sector during her time with Arup, in both site-based roles and project office roles. Her years working as a consulting civil engineer provides her with a sound basis for her primary role as a programming, delay and disruption expert.

304

Expert Witnesses

What do you enjoy most about your role as a testifying expert?

It’s definitely not the testifying part, which remains terrifying. I enjoy getting to the bottom of what happened on a project. Having been part of large EPC projects I enjoy reading the project communications, working out what the progress and schedule information all means, and being able to set out clearly why the project was delayed.

earlier hearings virtually without the associated travel time, expense and associated emissions. In relation to giving evidence, doing it virtually feels different, aside from not having to wear shoes. I think that tribunal members are in a better position to express views on the efficacy of expert evidence virtually than I am.

What do you find most challenging about the increasingly What inspired you to specialise technological and international in arbitration expert witness nature of investigations? work? I think it’s exciting. I’m waiting for an AI That’s hard to say as it was not at all planned at all. I didn’t even know this expert witness work existed. However, once I moved off projects and into consulting, I knew that arbitration was what I wanted to do because of the quality of the solicitors and barristers, and the international nature of the work.

algorithm to be developed to change what we delay analysts do completely. That along with the increased use of tech on construction sites to track real time progress should be transformational for delay analysis, in a good way.

To what extent is the increasingly virtual nature of disputes in a covid-19 landscape making for a more efficient process? In what aspects is it falling short?

We are small, niche, lean, we are very down to earth, straight talking and we do good quality delay and quantum work that needs to be done to assist the tribunal. gb2 is like a family and that is hard to find in a workplace.

Working remotely is something I have done for more than 50 per cent of the time since 2008 when I lived in Brazil. Travelling less is definitely making drafting experts reports a more efficient process as I’m not interrupted by long haul flights. The lack of face-to-face meetings can present some inefficiencies in the document gathering process for a delay analysis. In the hearing stages, from an expert’s perspective, the virtual landscape seems makes it easier to break up what would have previously been one hearing for a few weeks into multiple smaller tranches. Overall, in my experience, this ends up extending the hearing time, which is less efficient. However, I can see the benefits in dealing with discrete issues in shorter,

How does gb2 stand out from its competitors?

Looking back over your career, what has been your proudest achievement?

Using the expert process to get complete agreement on a measured mile disruption analysis on a nuclear power plant in a series of joint statements, with no individual expert report required. My proudest achievement by some margin.

What advice would you give to younger experts hoping to one day be in your position?

Be sure that you love what you do, be organised, look after your team, and be careful what you wish for!

Peers and clients say: “Wendy is a brilliant arbitration expert” “She is an absolute pleasure to work with” “Wendy is an excellent delay expert in the market” whoswholegal.com/thought-leaders

305

Franco Mastrandrea

HKA

London www.hka.com francomastrandrea@hka.com Tel: +44 20 7618 1200

Biography Franco has over 40 years of experience in the construction industry, including as expert witness in court and at the arbitration of project management, delay and quantum disputes. He holds a degree in law, is called to the English Bar, and is a chartered quantity surveyor. He is a chartered arbitrator and holds a master’s degree in project management, and a doctorate in the evaluation of construction contractors’ claims, on which he has written extensively. As dispute resolver, Franco regularly acts as mediator, adjudicator, expert determiner and arbitrator.

306

Expert Witnesses

What do you enjoy most about being an expert witness?

Using the building blocks of my varied training and the accumulated experience of my construction practice in helping to resolve contested areas of appraisal or evaluation on projects that have for whatever reason failed.

time and cost likely to be involved in international arbitration. Many international disputes involve a detailed investigation of contested liability, facts and figures, which it is not possible to achieve sufficiently with mediation.

What advantages accompany involving experts after the main You have extensive internation- evidentiary hearing? Why would al experience. What benefits parties and clients choose to does this deliver to clients? pursue this option? It allows me to reflect that experience in the advice to clients whether it be on the selection of a tribunal, working with legal representatives from different jurisdictions, the identification, gathering and processing of relevant information, or the presentation of expert evidence.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why?

As an aid to completeness and usefulness to the tribunal, allowing the expert to consult marked-up copies of reports or working papers, particularly in complex cases where the answers to particular questions may not always be set out in the reports or otherwise be immediately to hand.

The parties will usually want expert input into post-hearing submissions. More controversially, the tribunal may feel that it wants to investigate with the experts matters that may not have been explored either fully or at all in the hearing. The tribunal may be concerned about having properly understood the evidence. The tribunal may want assistance from the experts in carrying out appraisals of design, time or quantum. Such posthearing involvements between the tribunal and the experts needs to be carefully thought through and be the subject of parties’ agreement (including confidentiality arrangements between the tribunal and the experts) to avoid challenges to the integrity of the arbitration process.

What underrated skills would Practitioners report a marked you encourage the up-andincrease in international coming generation of arbitramediation, even when there tion professionals to develop? are arbitration clauses in con- For experts: honing skills in writing and tracts, due to cash-strapped expressing themselves concisely, clearly, businesses seeking early set- and consistently. For dispute resolvers to tlement. Is there a danger arbi- be fully familiar with the issues and identify tration could take a back seat where you need further clarity or assisto mediation? tance from the parties or their witnesses, There is a role for both. Mediation should be encouraged if it can avoid the significant

and be sure to get it.

Peers and clients say: “Franco is a top guy – I would highly recommend him” “He is quite simply the best quantum expert in the UK” “He’s very bright and, from his experience sitting as an arbitrator, he knows what tribunals want” whoswholegal.com/thought-leaders

307

Chris Milburn

Secretariat

Toronto www.secretariat-intl.com cmilburn@secretariat-intl.com Tel: +1 647 846 7497

Biography Mr Milburn is a managing director at Secretariat Advisors (Canada). He is a chartered professional accountant, certified management accountant (CPA/CMA), a chartered Business Valuator (CBV) and is a qualified valuator under the Canadian Institute of Mining’s Valuation Standards and Guidelines (CIMVAL). He has over 20 years of experience in the quantification of economic damages and the valuation of business interests in the context of international arbitrations, litigation and consulting.

308

Expert Witnesses

Which key qualities and attributes do effective expert witnesses need to possess?

Effective expert witnesses need to be able to provide reasonable, well supported opinions, retain their objectivity and independence throughout the dispute process and be able to clearly explain complex issues in simple terms.

will continue. A shift away from carbonbased energy will increase the dependence on battery technology, which requires many different types of minerals such as lithium, cobalt, nickel and cadmium. As those minerals become more important, and subject to new technologies or substitutes being developed, I believe we will see more disputes involving projects mining those minerals (such as the recent Chile v Albemarle arbitration case over royalties).

What do you think is driving the increase in hot tubbing in arbitration proceedings? Do you have any tips for counI have not seen an increase in the use of sel on how to use an expert witness conferencing in my cases but do team effectively? think it should be used more frequently. In my view, direct interaction between the experts, guided by questions from an arbitral tribunal, is an efficient way for the arbitral tribunal to get to the heart of key issues and can lead to agreement and compromise between independent experts.

What impact will the move away from carbon-based energy have on the mining sector and the types of disputes you expect to see?

The transition from carbon-based energy over the coming decades will impact the types of mining projects that are developed as commodity prices adjust to reflect new supply and demand profiles for different minerals. It will also impact mining operations and costs as renewable energy sources are used to power operations and electric vehicles become the norm. In terms of future cases, we have already started to see cases where coal producers are bringing claims for the improper cancellation of long-term projects (such as the RWE AG v Netherlands) and I expect that

Getting experts involved early to assess the facts and key expert issues help counsel assess the strengths and weaknesses of the case, develop its legal case theory, and manage client expectations. A last-minute expert analysis/report is never ideal and can compromise the quality of an expert analysis. Keeping open communication with the expert team is also key to ensure experts are on track with their assignments through periodic update calls, and the preparation of work plans and report outlines.

How can clients minimise the risk of disputes arising? In arbitrations involving natural resource projects, for example, many of the disputes arise from a complex interaction between environmental, social, economic and political factors. One possible way to avoid disputes in these cases is to ensure licences are obtained lawfully and without an appearance of attempting to circumvent the rules, by engaging meaningfully with local communities to obtain the social licence to operate and operating

in an environmentally conscientious and sustainable manner.

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

I would like to serve as an arbitrator in future to deal with damages issues as I think that is something that could improve the arbitral process since typically arbitrators are very experienced legal professionals, yet they are deciding not only legal issues but also complex damages issues involving millions or billions of dollars. In my view, having damages experts on arbitration panels to help formulate and provide detailed explanations for the basis and determination for the damages awarded would be very useful.

What challenges do the next generation of expert witnesses face and how can they prepare for them?

A major challenge for all young experts is being retained on cases they can testify on to establish themselves. This has been very difficult during covid-19 due to the inability to build relationships with lawyers and potential clients in person at conferences and meetings and hearings. If videoconferencing continues to be highly used post-covid-19, this will continue to be a challenge for experts. Young experts can increase their profile through article writing, presenting on conference panels, connecting one-on-one with counsel and potential clients where possible (even if by video) and seeking co-testifying opportunities on cases where they are working with more senior experts.

Peers and clients say: “Chris is a top testifying expert and is simply excellent” “He quickly understands complex technical issues” “He is focused, constructive and inspires confidence” whoswholegal.com/thought-leaders

309

Carlos PabonAgudelo

Infrastructure Economic Consulting LLC Washington, DC www.infraecon.com

carlos.pabon.agudelo@infraecon.com Tel: +1 202 899 4656

Biography Carlos Pabon-Agudelo is a regulatory economist providing policy analysis, advice, and litigation support to energy and other infrastructure-related clients worldwide. He has special expertise in utility regulation, market restructuring, structure and implementation of commercial and financing strategies, and the economic assessment of liability and damages in litigation and international disputes.

310

Expert Witnesses

What attracted you to a career in international arbitration as an expert witness? As I worked with worldwide entities as an economic advisor, the interaction between private investors and sovereigns caught my attention. Investor-state cases inspired me to explore alternatives to support parties when conflicts arose. I found international arbitrations challenging and motivating. Increasingly, I got passionate about being part of the international disputes community and applying my experience and knowledge as an expert witness. There is a profound and rich cultural interaction in this field that requires deep thinking and sensitivity to find solid arguments to support disputes. Also, the diversity of cultures has always fascinated me.

narrowed. Now tribunals consider experts more as an assistant instrument to support decisions. There is a closer relationship and a deeper understanding that experts need to assist tribunals in delivering a good outcome. But to do that, an expert needs to be honest and accurate in their analysis. Experts are not advocates for parties. They assist tribunals. Undoubtedly, the pandemic has affected that relationship by creating a “virtual wall” again. Still, everybody is working hard to keep motivated, stimulated, and in dynamic conversation even at the virtual level. Even though online hearings are not as enriching as the in-person ones, everybody has done their best to get everything done with the highest level of professionalism.

still some difficulties in the communications with other countries.

mean more challenges. I see more data as an opportunity to make informed decisions. I also like the multiple sources of information that we find available because they help to improve our analysis. Data is a tool that should not be seen as overwhelming. One must analyse the available data and use it appropriately. But, very importantly, it’s key to be selective and focused to avoid getting lost.

witness services in infrastructure projects worldwide, and supporting and preparing a new generation of experts that currently collaborate in my practice.

How do you effectively prepare for cross-examination and/or hot-tubbing?

For me, each case is different from another, so I always prepare myself as if I were new to the case. So, first, I review the entire case record; second, I highlight the main points of my assessment, and prepare my script; and finally, I practice explaining the interaction between the case documents and my analysis. Also, I focus my preparation on the best way to convey my analysis and assessment to the tribunal.

As managing director of Infrastructure Economic ConsultWhat challenges do you face ing, what are your main prioriWhat are the advantages of hav- with the increased volume of ties for the firm’s development ing diverse geographical and data being used in disputes, and over 2022–2023? sector experience? What ben- how are you navigating them? I plan to continue offering strategic adviefits does it deliver to clients? More volume of data does not necessarily sory services, delivering innovative expert Geographical diversity is essential in international arbitration because it allows practitioners to understand the context in which investment takes place, draw experiences from other jurisdictions, and understand cultures and the decision-making process of the client. Also, geographical diversity brings a deeper connection with the parties and enriches the analytical process. In the same way, being involved in multiple infrastructure sectors (power, natural gas, oil, mining, roads, airports, etc), allows me to offer clients a diversity of experiences. This improves the analysis and the conclusion of an assessment because you have a broader knowledge base and a wider perspective to draw from. This assures the clients that their unique cases are being managed with commitment, responsibility and perspective.

How has the dynamic between arbitral tribunals and experts changed over the years? I think that the ocean that once existed between arbitral tribunals and experts has

What green arbitration trends are currently prevalent in the market? This is a new practice and I think more practitioners are getting involved in it each day. I have been part of the changes in green arbitration. For example, we mainly communicate and share documents online; we barely print documents. Also, I have been part of online arbitrations, avoiding travelling; additionally, we use permanent video conferences to solve many questions and concerns in the process of developing cases. This trend is getting familiar worldwide, yet there are

What steps can younger experts take to improve their chances of getting testifying appointments? Is there an important role to play here for experienced experts? As a basic need, any arbitration practitioner should first become an expert in his/her field and then cultivate rigorousness, creativity, curiosity, and desire for research. A younger expert needs to learn to be a good listener and be open-minded to embrace changes and innovations. He or she should be a fast thinker and be open to facing problems presented by their clients. Also, young practitioners need practice to learn to communicate effectively and successfully. Experienced experts should make it their purpose in their jobs to coach young experts because this fast-changing world requires more and more well-prepared individuals.

Peers and clients say: “Carlos possesses strong inter-personal communication and economic analysis skills” “He is down to earth, easy to talk to and has a knack for communicating complex economic topics in a succinct and clear manner” whoswholegal.com/thought-leaders

311

Rob PallesClark

Kroll Advisory Ltd. London www.kroll.com

rob.pallesclark@kroll.com Tel: +44 7812 583019

Biography Rob Palles-Clark, managing director at Kroll, is a quantity surveyor, quantum and delay expert and adjudicator with over 36 years of major international construction project experience. Rob has had over 80 expert appointments and has twice given expert evidence in the Technology and Construction Court (TCC). He has been cross-examined both as a delay and a quantum expert in international arbitrations on many occasions, and he has extensive experience of adjudication and mediation.

312

Expert Witnesses

What do you most enjoy about your role as a testifying expert?

It is a difficult role to fulfil well, and for me personally, being cross-examined represents the toughest and most rewarding challenges I have faced in my now quite long career. The major international disputes on which I have been appointed in more recent years are complex, and both challenging and demanding. There is huge satisfaction to be had in meeting these challenges on such projects and I really enjoy working with an outstanding, bright and motivated team that delivers time after time. Best of all though, is the sense of relief (and hopefully elation) one gets after hearing the words “thank you Mr Palles-Clark, I have no further questions.”

What is the philosophy behind your approach as an arbitration expert witness?

It ought to be trite to say, that the primary duty of an expert is to provide an independent expert opinion on matters that assist the tribunal with their duty to decide the dispute. Not every expert out there seems to understand this, but it is important not to let your client’s desire to win its case influence your genuinely held independent views, because most tribunal’s can see straight through an expert that does not do so. To do otherwise means your evidence is likely to be disregarded.

better behaviour in that forum, but my experience of other experts in arbitration is that there appears to be more room for bad behaviour. I think that experts in arbitration have to work out for themselves what type of reputation they want, whether as a hired gun that will peddle an opinion that best suits their client’s case, or as an independent expert who’s opinion is likely to be preferred. I get the most satisfaction from my evidence being adopted by the tribunal.

What challenges do you face with the increased volume of data being used in disputes, and how are you navigating them? Major construction cases are very document heavy, often running to millions of documents. Experience tells you the types of records or documents to look for in connection with certain types of issue and investigation, but ultimately it is the quality of the team and the search tools or documents platforms through which these documents are accessed that make the difference as to how comprehensively the expert can identify and review the key documents.

is signed by the tribunal. The legal teams I have worked with on major disputes in recent years have all been highly competent and are excellent at distilling the key issues from the evidence, but they often ask for comments to help them do this.

How do you effectively prepare for cross-examination and/or hot-tubbing?

I start with a review of the key issue in the case, where the key differences lie and where the larger sums in dispute are to be found. I reread my reports and the relevant supporting documents, with a particular focus on these issues. Although it has been said that cross-examination is not a memory test, it is a test of your ability to navigate your own report and to answer detailed questions on your approach to the analysis of a cost or issue.

What is the best piece of advice you’ve ever received?

An experienced in-house lawyer for a client in the first hearing on a large complex matter in which I am a quantum expert saw how nervous I was just before taking the stand, and he asked: “What is the worst that can happen – are you going to die?” Of course, the answer is no (unless you are really quite unlucky), and it really helps to remember this.

What advantages accompany involving experts after the main evidentiary hearing? Why would parties and clients chose to pursue this option? How do you see your practice Do you think the increase in After the hearing, one can be involved developing over the next five transparency found in arbitra- in commenting on and assisting with years? tion proceedings has encour- responding to closing submissions (this I enjoy working on the major disputes, as aged experts to remain impar- helps the legal team with detailed points it always amazes me what we can achieve, tial? Or do you think further relevant to the expert evidence), possibly often against very difficult odds, but I also steps are needed? assisting the tribunal in a further hot hope to spend a little more of my time as a There is no doubt that the courts’ willingness to stridently criticise experts who do not behave in a manner consistent with their duties to the court ought to encourage

tubbing session on quantum prior to them deciding the quantum part of an award, or occasionally with checking the quantum calculations in a draft decision, before it

decision-maker, either in adjudications or as a DAB member.

Peers and clients say: “He reviews very significant amounts of documentation and adopts a thorough approach to his analysis” “He always maintains his independence, and is a reliable, honest and independent witness” “Mr Palles-Clark is thorough and committed to his duties as an independent expert” whoswholegal.com/thought-leaders

313

Michael Peer

Control Risks

Singapore www.controlrisks.com michael.peer@controlrisks.com Tel: +65 8797 7496

Biography Michael leads Control Risks’ forensic and technology practice across Asia Pacific. Based in Singapore, he has over 25 years of experience as a forensic accountant. He assists clients with sensitive situations and is recognised in dispute resolution involving commercial and investor state disputes. Michael assists clients in establishing the facts through meticulous documentation review. Michael works closely with clients and lawyers when acting as an expert in matters involving accounting, damage quantification and regulatory compliance.

314

Expert Witnesses

What do you enjoy most about acting as quantum expert and arbitrator respectively?

As an expert witness I enjoy assisting the tribunal to understand complex issues involving quantum or accounting. So many accounting issues are interlinked so it is important to have a clear overview and understanding of all the issues and different variables within the topics. In a similar way, as an arbitrator with a diverse background, I bring subject matter knowledge to bear to the case. This is key where the case is heavily quantum based and I can support the other arbitrators in our deliberations.

How has the market developed since you first started practising?

Over the last 25 years most experts have become more professional and experienced. There are still some hired guns who produce white-washes but they quickly become known to the arbitrators and their independence is increasingly being challenged. I am seeing greater desire to settle cases, meaning only the more complex cases tend to proceed to formal dispute resolution procedures, but also clients are seeking more support in finding commercial solutions to disputes.

What advantages accompany involving experts before the main evidentiary hearing? Why would parties and clients chose to pursue this option? Excluding experts until late in the case runs the risk of not establishing the relevant facts required for the quantum phase of the case. Another benefit of early involvement of quantum experts is a realistic

expectation of what a case is worth, both for the purposes of making an investment into the case, but also to evaluate settlement offers. The chosen legal arguments may also restrict the quantum calculations unnecessarily or may exclude relevant heads of claim so an early discussion is invaluable.

Some practitioners report that conflict of interest rules for consulting experts in arbitration are not tight enough. Do you agree?

The rules are sufficient but errors are made in compliance. Further rules about the number of appointments for a client or the related engagements by others in the same consulting firm would be unduly onerous. In public practice, accountants are very aware of the rules and monitor conflicts closely but I am seeing increasing requests for business intelligence to understand potential conflicts of interest. In my experience, arbitrators will give the weight they deem appropriate to the evidence presented to them.

What advice would you give to clients when it comes to international arbitration?

Dispute resolution requires a comprehensive strategy requiring a multitude of disciplines so my advice to clients is to assemble a team that brings different perspectives to the issue and couple that capability with decision making authority to resolve disputes amicably where possible. Bringing legal, accounting, business and finance perspectives together will allow for the development of a robust strategy with creative solutions to sensitive issues.

How are the benefits of big data being harnessed in arbitrations by experts? Big data is now unavoidable in arbitration cases. There is a growing amount of data collected during the opening phases of a dispute that needs to be considered when preparing a dispute resolution strategy. The use of data analytics, particularly assisted by artificial intelligence or machine learning, is now ubiquitous, not a luxury, so participants to an arbitration need to have a grasp of the tools available, the legal implications of processing the data, and need to be trained so as to understand the outcome of any analysis.

You have extensive experience in a wide range of industries. What are some of the key factors you take into account when holding yourself out as What is the best piece of advice an expert across industries? you’ve ever received? I am merely an expert in the fields of my training and experience being accounting, valuation and regulatory compliance. I work very closely with industry experts so that the technical knowledge they present is integrated into the overall approach to the case. Based on my work history, there are certain sectors I have more experience in than others, such as the energy and technology sectors.

Probably the advice that has really defined me was to remain ethical and maintain a long-term vision. Too often I have seen other experts appease their clients in the short run, which has damaged their integrity. If I feel a client really doesn’t have a case or their claims are unsubstantiated, I tell them. I have been fired for doing so, but I have maintained my integrity which is much more important.

Peers and clients say: “He knows his material very well and presents strongly to the tribunal” “A very professional, knowledgeable and highly skilled expert” “Mr Peer is very adept at handling rigorous cross-examination by opposing counsel” “He clearly explains key concepts and persuasively sets out his views” whoswholegal.com/thought-leaders

315

Liz Perks

Kroll

London www.kroll.com liz.perks@kroll.com Tel: +44 7979 690298

Biography Liz is a forensic accountant with extensive experience of the accounting and quantum aspects of disputes before LCIA, ICC, UNCITRAL, ICSID tribunals and English courts. Liz holds a law degree and postgraduate diploma in legal practice from Sheffield University. She is a fellow of the Institute of Chartered Accountants in England and Wales and a trustee and chair of the Finance and Audit Committee of the British institute of International and Comparative Law (BIICL).

316

Arbitrators & Counsel

Describe your career to date.

I initially trained as a chartered accountant in a small practice specialising in the entertainment sector. I gained broad accounting experience including accounts preparation, audit, personal and corporate tax and royalty investigations with a very interesting set of clients. I loved the forensic aspect of the royalty investigations and so joined a Big Four professional services firm in 2000 to specialise in forensic accountancy. From then my focus has mainly been on expert witness work in the context of disputes, alongside a few investigations and a yearlong compliance project into the sales and marketing practices of a global pharma company. In 2013, I left the Big Four to help launch Haberman Ilett, a boutique forensic accounting practice. I had my first expert appointment in my own name in 2014 and have since been appointed in a wide variety of cases, including contractual, IP, valuation and transaction disputes. In 2020, Haberman Ilett was bought by Kroll, where I am now a managing director.

What is one of the most interesting cases at which you have testified?

One of the most interesting cases was an LCIA arbitration concerning the alleged breach of contract around the distribution and marketing of a product in the healthcare sector. It was interesting on lots of levels: the product and sector, the events that had occurred, the procedural process (see more below), the complexity of the loss quantification and as we had the classic ‘ships in the night’ situation with the opposing expert.

What impact can a more interventionalist approach from tribunals have on independent expert work?

Following on from my answer above, in this case the tribunal did take a more interventionalist approach. I believe this was due to the huge gap between the experts’ quantifications of loss. To illustrate the approach they took: the tribunal attended the meeting of experts (without counsel or parties) and they used this meeting to understand both of our views on all the issues and ask some questions to educate themselves (that they would maybe not ask in a hearing situation). Following this meeting, they asked the experts to jointly prepare a flexible model with options for each of the assumptions that drove the loss, so that they would be able to use the model to calculate loss once they had decided all the factual, legal and financial issues. Then in the hearing, the expert testimony was all concurrent (hot tubbing). The tribunal provided an agenda, and they led the questioning for over a day (with counsel on both sides only allowed to cross examine on any answers given). Because they had already spent a day with us in the meeting of experts, the tribunal were very well prepared and able to ask pertinent questions, challenge our answers and successfully lead the hot tub. My view is that the approach the tribunal took led to a much higher quality of expert evidence and by the end of the hearing, I felt confident that the tribunal would come to a sensible answer on quantum. I have to say that I do not always leave a hearing with that confidence and sometimes I have no idea if the tribunal have really understood the issues and will be able to work through

the complex accounting or valuation questions to come to a reasonable conclusion. After my experience with this case, I believe that it is a tribunal’s duty to be more interventionist if they do not have the expert evidence that they need to be able to determine technical issues, for example, where the experts have different instructions, or will not engage with the opposing expert arguments, or are ‘ships that pass in the night’.

What advice do you give to junior experts looking to gain their first appointment as an expert witness?

Getting the first appointment can be tricky. I would advise junior experts to (i) tell partners that you know well that you want your first appointment and ask them to recommend you if something suitable comes along (ii) seek opportunities to work on as many cases of different types as possible, so your CV is credible and (iii) network – those relationships you build will lead to future work, you just have to be patient.

What about your role do you enjoy the most?

The thing I enjoy most about the role is the variety and the challenge. No two cases are ever the same, so the job never becomes routine. I do not specialise in any particular sector, so am in the privileged position of having a role where I am constantly learning, and I get to acquire deep knowledge of a wide range of industries and issues in businesses all over the world. I also get to work with very bright and inspiring individuals, both as colleagues and clients.

Peers and clients say: “She is brilliant, really fantastic” “Liz is our first port of call for arbitration proceedings” whoswholegal.com/thought-leaders

317

Anamaria Popescu

Berkeley Research Group Denver, CO www.thinkbrg.com

apopescu@thinkbrg.com Tel: 856-448-3464

Biography Dr Anamaria Popescu is a managing director of BRG’s international construction practice. She is a construction arbitrator with the AAA and a licensed professional engineer with more than 27 years of experience in project and contract management, construction claims, delay analysis, productivity loss and damages. Dr Popescu’s project experience includes power generation, pipelines, petrochemical and process plants, oil and gas production platforms, water treatment plants, airports, and commercial construction. Her expertise as well as her doctoral thesis focus on forensic schedule analysis.

318

Expert Witnesses

How have forensic delay analysis methods changed since you started practising, and how do you think they could evolve in the near future?

In actuality, I don’t think they have “changed” per se but there is a heightened awareness regarding their application and methodology. Since the publication of the AACE Forensic Schedule Analysis Recommended Practice 29R-03 (for which I was one of the co-authors) and the SCL Delay and Disruption Protocol, forensic schedule analysis has slowly left the “black box” designation. Tribunals are becoming more rigorous regarding these techniques and previously accepted “pretty pictures” touted by experts as “delay analysis” are met with increased scepticism.

How has the dynamic between arbitral tribunals and experts changed over the years?

Tribunals are becoming more sophisticated in the areas they are presiding over. In construction cases, the tribunals understand the concepts associated with delay and disruption claims and expect the experts to be helpful to their understanding of the true root causes of the dispute.

What are the greatest challenges posed by acting as an expert in complex disputes pertaining to the energy and natural resources sector?

An expert should remember to “stay in their box” and only opine on the areas of their

expertise in these cases. The amount of documentation can be overwhelming and it is virtually impossible for an expert to absorb all the key information regarding the dispute. Therefore, an expert must be extremely diligent in remaining in their swim lane and not creep into unchartered territory that could be detrimental in cross.

What are the key skills experts need to succeed at running a global construction disputes practice?

Ethics, integrity and leadership. I can’t stress that enough. Sometimes these key traits conflict with the pressures of revenue generation but it pays off in the long run. What an expert does to win work is just as paramount to their reputation as how well they do on the stand. An expert’s behaviour and actions can never be bifurcated from their role as an expert witness.

What advantages accompany introducing experts early in the disputes process?

There are many! The ability to understand the case thoroughly, interview key project team members, decide on the appropriate methodology (delay or damages), and advise on “go no-go” decisions regarding key claims to put forth in a logical and thoughtful manner. Getting involved early will give the expert time to absorb the data and provide the client with a realistic understanding of what the client’s BATNA really is.

How do you effectively prepare for cross-examination and/or hot-tubbing?

First, write a well-structured and detailed report that clearly articulates your assumptions and methodology, and is extensively footnoted so you can track the basis for your conclusions. Then, review your report and all backup documentation several times. Finally, ask yourself as you read the report, “what would opposing counsel do with this statement in my cross and how would I answer their question?” This allows you to find the “weaknesses or grey areas” in your report first and come well-prepared.

What is the best advice you have ever received?

My father always told me that perseverance is more important to a person’s success than intelligence. Yes, of course it helps to have both but as Calvin Coolidge (the 30th president of the United States from 1923 to 1929) once said: “Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan ‘Press On!’ has solved and always will solve the problems of the human race.”

Peers and clients say: “Anamaria is highly responsive and incredibly committed to the project at hand” “She has very strong technical skills” “She is an easy expert to deal with” whoswholegal.com/thought-leaders

319

Joanne Prior

Kroll

London www.kroll.com joanne.prior@kroll.com Tel: +44 20 7836 0158

Biography Joanne Prior, a managing director at Kroll, is a chartered quantity surveyor with over 30 years of experience in the construction industry. Joanne is regularly appointed as a quantum expert on large, complex international construction and engineering projects. She has considerable testifying experience and has given evidence in the Technology and Construction Court (TCC) and in 15 arbitration hearings in the UK and internationally.

320

Expert Witnesses

What inspired you to pursue a career as a quantum expert?

I’ve enjoyed being a quantity surveyor since my first day as a trainee quantity surveyor, and I’ve been lucky to have some great mentors throughout my career. A couple of those mentors acted as quantum experts and I saw this as something to aspire to.

What is the most significant trend you are noticing in the construction disputes marketplace?

More complexity. This seems to arise out of more complex projects, which are difficult to design, coordinate and construct. Disputes have an increasing focus on issues that are driven by utilities, services and technology.

To what extent are current dispute resolution forums an effective means to resolving complex construction disputes? Would you propose any reforms?

Sticking with arbitration, I think that tribunals are generally experienced and have good construction knowledge which they use to drive an effective process. In terms of reforms, I think it might be an idea to get early decisions on issues that present large volumes of work for experts. It might also be an idea to get the parties to confirm what is agreed, so that the scope of the experts’ work can be limited to what is not agreed. That sounds like an odd thing to say but you would be surprised how often experts are starting from different positions on what is already agreed.

How has your experience as a quantity surveyor enhanced your work as an expert witness? What qualities make for a sucI use my training and experience as a quan- cessful expert witness? tity surveyor every day. It is essentially still my job, although I am doing it as an independent expert in a dispute forum.

Somebody who is measured and persuasive. In my experience, those experts who can look at issues objectively and help to resolve the dispute are more likely to carry weight compared to those who take extreme views.

How do you effectively coordinate on cases when working alongside experts with other areas of expertise? As managing director, what It is quite often the case that I am working are your main priorities for the with other Kroll experts, in which case practice group’s development coordination comes about by being in touch over the next five years? with each other generally. I think that it’s good to try to talk to the other experts to understand how their opinions will impact upon the quantum and this is something I try to initiate.

How are technological developments currently affecting the practice of quantum analysis?

We have an ever-increasing volume of data to deal with! This can make it tricky to capture all of the issues and so it’s good to get a searchable document platform set up as early as possible. It seems to me that the parties end up doing this for the hearing in any event and it would probably save a lot of time to get this in place from the outset.

Ensuring that we maintain our high-quality standards, independence and integrity. To do this we need great people and so training and developing our team is key. We work closely together to achieve this, and it has been even more important over the course of the coronavirus pandemic to maintain good relationships. We are continuing to expand with the recruitment of some really good people and are venturing into new geographies. Building from the Kroll platform, we are expanding our construction business in Canada and North America, which is already proving successful. Watch this space!

Peers and clients say: “She is the leading quantum expert in arbitration in my view” “My expert of choice” “Joanne is very calm, diligent and fair in her approach” whoswholegal.com/thought-leaders

321

Jon Prudhoe

Ankura

Singapore Ankura.com jon.prudhoe@ankura.com Tel: +65 6276 9050

Biography Jon Prudhoe has over 35 years of professional experience in the construction and engineering sectors. Based in Asia for over 20 years, he is one of the few experts, worldwide, equally capable of opining on matters of quantum and delay. With an extensive portfolio of expert appointments, including many of the Middle East, Australia and Asia’s most high-profile and complex disputes, Jon’s experience in numerous sectors has made him one of the most highly sought-after construction expert witnesses in those regions.

322

Expert Witnesses

What do you enjoy most about your role as a testifying expert?

What I enjoy most about being appointed as an expert is the variety of disputes that I have the opportunity to be involved with. Currently, I’m appointed on matters arising on large infrastructure projects, power and process plants, retail developments, resource projects as well as ship repair and conversion disputes. I also find that analysing and finding a way to present complex issues in a clear and concise manner often brings the most satisfaction. My role allows me to make observations and offer opinions on technical matters that provide the decision maker with the best opportunity of reaching the “right” answer to the dispute. In contentious proceedings, this will involve working with the opposing expert to reach agreements based on well-explained, reasoned conclusions. A robust analysis that is thorough and well presented always assists the process of reaching agreement.

Since you began participating in arbitration proceedings, how would you say the role of the expert witness has developed?

A change I’ve noticed over the years is the use of the terms “dirty expert” and “clean expert” in some regions of the world. A dirty expert is someone who has assisted a party by preparing a claim and is therefore partisan. It’s another label for a claims’ consultant. “Clean expert” is the term being applied to the independent, non-partisan expert. The problem with this terminology is that there is an overuse of the term “expert” or “ expert appointment” in individuals’ CVs making it difficult for clients and lawyers to determine who truly has the experience required to provide independent opinion.

An area that doesn’t seem to have changed as much as I would have expected is the diversity of experts. It is true that are more female expert witnesses now than a decade ago but there’s scope for there to be more appointments. There are three excellent female quantum expert witnesses in our Singapore office (and less then 50% of my team is male). I’m trying hard to ensure they have the appropriate opportunity to progress their careers as experts.

What are the qualities that, in your opinion, are important in an arbitration expert witness?

In addition to obvious qualities such as honesty, integrity, and tenacity the expert must have sound technical knowledge and specific experience relevant to the dispute. To be effective, the expert must be open minded and ready to consider alternative methodologies to those on which their own opinions are based. After having taken into account opposing opinions, the expert needs to be confident in his or her findings in order to deal with the intense scrutiny of cross-examination. An effective expert needs to be able to remain calm when giving evidence and this is only possible if they are well prepared before the hearing and know every aspect of their report thoroughly, so they aren’t caught off guard. Finally, the expert must be fully aware of and comply with their duty to the tribunal to be independent. Some experts still fail to adhere to this and an experienced tribunal can usually recognise biased opinion.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients?

particular locations or involving parties from specific countries. This is because there are nuaunces and ways of working that would not be immediately obvious to those without this background knowledge. Sector experience is understandably a requirement for most clients. There are inherent problem areas that can be specific to a particular type of project. A sector-experienced expert knows where to look and can more easily identify when an opposing expert is focussing on less relevant issues in an attempt to “muddy the water”.

In what ways is arbitration becoming greener? Do experts also have a role to play in this transformation?

Obviously, virtual meetings and hearings have become much more the norm during the covid-19 pandemic. I have even undertaken site inspections by drone, so my carbon footprint has certainly reduced in the past two years. Whether or not an expert needs to travel during the course of an arbitration is usually dictated by the counsel or client.

What advice would you give to someone starting out in advisory and dispute resolution services? In the construction arena, they must first of all have several years experience of working in the industry before moving into an advisory role or pursuing a career as an expert. Dispute resolution experience can, and often is, initially gained whilst working in industry. This gives the individual a taste of what is to come should they decide to move into an advisory or consultancy role.

Clients often have a preference for an expert that has experience of projects in

Peers and clients say: “Jon maintains an excellent knowledge of the detail which he is able to call upon when being cross-examined” “His report was not only incredibly persuasive but was described by the whole legal team as one of the most easy-to-follow quantum reports we’ve come across” “He has an ability to distil complex facts into entirely understandable short bursts” whoswholegal.com/thought-leaders

323

Jacqui Record

Ankura

Dubai www.ankura.com jacqui.record@ankura.com Tel: +9710 4 381 9038

Biography Jacqui Record is a senior managing director at Ankura heading the disputes and investigation practice for the Middle East. She is a UK chartered accountant (fellow of the ICAEW) and has more than 30 years of forensic accounting experience mainly within the Big 4 across the UK, Europe, Middle East and Africa and has testified numerous times in a wide variety of forums. Her key areas of dispute focus include shareholder / joint venture, oil and gas, construction/real estate and hospitality and leisure.

324

Expert Witnesses

Describe your career to date.

I landed in forensic accounting work by accident having qualified with PWC in London, I got seconded to the Serious Fraud Office and then moved on to the Maxwell investigation. With a lust for travel, I worked in Australia and finally ended up in South Africa where I started Arthur Andersen’s forensic practice, moving later to Deloitte. Having testified extensively in criminal matters, I then began to do more standalone expert accounting work. I have continued to do a broad range of investigation and dispute work ever since. After another stint back in London I moved to Dubai with Deloitte heading their dispute practice before moving to Ankura. Working internationally has given me extensive testifying experience in a wide variety of forums globally.

How does your broad forensic account experience assist you as an Expert? What benefits does it deliver to clients?

I find that having worked broadly across both investigations and disputes, as well as in many different criminal and civil forums around the world, I and my team can provide a very practical and multifaceted approach to clients. As needed, we can investigate fraud claims for a civil arbitration recovery, assist in local court work (in Arabic) in conjunction with an arbitration claim in another jurisdiction or simply work well in arbitrations with participants from both civil and common law jurisdictions.

What are the most significant challenges you are anticipating expert witnesses to encounter over 2022–2023, and how are you planning to navigate them? Like many, I thought hearings would continue remotely but there seems to be a move back to in-person for some. I believe we may see more hybrid hearings occurring in the future, which can be challenging. Having experience of both is key to remaining flexible as to the venue. Flexibility will also be key as we come out of covid-19 and deal with the Ukraine conflict fallout and face new and varied disputes.

Some practitioners report that conflict of interest rules for consulting experts in arbitration are not tight enough. Do you agree? I feel that conflict is something that needs to be dealt with in substance as well as form. Disclosure is the best form of defence to many issues of conflict, rather than overly restrictive rules that may not be practical in all instances.

What are the common pitfalls in preparing for cross-examination and/or hot-tubbing and what advice would you give to practitioners starting out in the field?

The expert must be prepared in detail. Whilst an expert may have a team assisting, it is vital that the expert is hands-on throughout the job, knows the detail and

has looked at all the documents as far as possible. The expert also needs to know the other expert’s work in detail. Having this level of knowledge allows the expert to be prepared for all types of questions.

What underrated skills would you encourage the up-andcoming generation of arbitration professionals to develop? A key skill is to be able to see others’ points of view. As an expert, we may choose to approach the issues we are asked to opine on from a particular angle, but we need to be able to look at the problem and our solution from every angle and deal with how it can be attacked. Another key skill is to be able to explain complex issues simply in a non-technical way to marry detailed work with the bigger picture.

What steps can younger experts take to improve their chance of getting testifying appointments? Is there an important role to play here for experienced experts?

Experienced experts should be encouraging clients to use more junior experts supported by an experienced expert. In addition, the younger experts should take smaller roles for low fees to get the testifying experience.

What is the best piece of advice you’ve ever received? Be kind.

Peers and clients say: “She is very experienced and takes a no-nonsense approach” “Jacqui is very diligent in her approach” “A go-to for large construction disputes” whoswholegal.com/thought-leaders

325

Howard Rosen

Secretariat Advisors

Toronto www.secretariat-intl.com hrosen@secretariat-intl.com Tel: +141 656 79930

Biography Howard Rosen is a managing director with Secretariat and has four decades of experience of advising on all aspects of business valuations, damages quantification and corporate finance-related matters. He has acted as an adviser to private and public companies, regulatory bodies and all levels of government on a wide variety of industries. His work has taken him to courts in Canada and the United States as well as arbitration hearings in North and South America, Asia, Africa, Europe and the Middle East.

326

Expert Witnesses

Could you describe your career to date?

I have been fortunate over the past 40 years to be in an environment where international arbitration has been expanding in acceptance, scope, complexity and geography. Starting as a testifying expert in the early 1980s I’ve been able to grow with this expansion and meet and work with many of the leading lawyers and arbitrators. During this period, I’ve also been surrounded by exceptional colleagues that contributed to my development and expertise. This has afforded me the opportunity to work on some of the most interesting cases and address fascinating problems.

How has the market changed since you first started practising?

The market is much more sophisticated now than it was in the 1980’s. Experts are routinely engaged (which wasn’t the case), which has led to the proliferation of expert firms. Additionally, the ready availability of information has led to the ability to review public sources on cases and experts to better understand approaches to quantifying damages, and consistency of individual experts in providing their opinions.

How has the dynamic between arbitral tribunals and experts changed over the years?

Tribunals seem much more engaged with experts and willing to discuss issues in detail, either in tribunal questions or witness conferencing. This is a

positive development that has led to better reasoned awards.

What steps can younger experts take to improve their chances of getting testifying appointments? Is there an important role to play here for experienced experts?

There is a natural reluctance for parties to hire experts for their first testifying role. I’ve found the best way to develop the next generation of testifying experts is to have them co-sign and co-testify with more experienced experts. Clients sometimes resist this development, but in the end, I believe it is an efficient process that does not materially impact the cost of the expert engagement, and can enhance the effectiveness of the evidence, by allowing each expert to focus on different aspects of the report.

What challenges do you face with the increased volume of data being used in disputes, and how are you navigating them?

With the increase in the availability of data, has come the increase in the sophistication of the tools we use to examine and analyse the data. The challenge for the expert is to ensure there is not undue “reliance” on the analytic tools (the expert must be able to fully explain how they are used, and what the output of the analysis means), and to ensure that the parties and arbitrators can understand, repeat, and rely

on the analyses that are created. There is sometimes the “illusion” created by simply using a software tool, that does not add any substance to the analysis.

What are the most significant challenges you are anticipating expert witnesses to encounter over 2022–2023, and how are you planning to navigate them? The challenge we face each year is to ensure we are always acting for the benefit of the tribunal. This is something we must remember and rededicate ourselves to each year. In addition, the re-integration into in-person hearings and travel will be a challenge (albeit, a welcome challenge).

What do you most enjoy about your role as a testifying expert?

I believe most experts, at heart, are natural teachers, and this is the aspect I enjoy most. I spend my working life surrounded by skilled and talented colleagues who provide intellectual challenge every day, in an environment where I am retained by a party that has a very real and critical issue to resolve. I get to do this on a world stage in front of some of the best legal minds in the world. What’s not to enjoy?

What is the best piece of advice you’ve ever received?

Work hard, be respectful of others, and never take yourself too seriously.

Peers and clients say: “Howard is an authority in the field” “He is a top-notch damages expert” “Howard is super effective in cross-examination” “He is a pioneer of the field and continues to be a leader” whoswholegal.com/thought-leaders

327

Garrett Rush

Secretariat

Washington, DC secretariat-intl.com grush@secretariat-intl.com Tel: +1 703 627 8080

Biography Garrett has been advising a balance of claimant and respondent clients across all major arbitral forums for over 20 years. His work has spanned all major industries including: mining, electricity/renewables, real estate, financial services, infrastructure, telecom, consumer goods, and oil & gas. Garrett holds a chartered financial analyst (CFA) designation, an MBA from INSEAD (France), and a BSc in economics from William & Mary.

328

Expert Witnesses

Describe your career to date.

I have spent my entire career advising clients about damages in dispute settings. This started with antitrust work in the U.S., evolved into domestic commercial litigation, and eventually led to international arbitration. I was fortunate enough to be introduced to my first international arbitration matter in the early 2000s. It was clear to me from that point on that I wanted to spend my career focused on these matters. The topics are challenging, the claims are impactful, and the community is collectively dedicated to excellence.

What attributes make for an effective quantum expert in today’s climate?

By far the most important attribute is authenticity. In my opinion the first hurdle for reaching any tribunal is demonstrating that they are hearing from an authentic source. An authentic expert is one that truly appreciates the challenge facing a tribunal and helps to navigate to a solution in a balanced, professional manner. After authenticity is the ability to be clear and concise. Of course, everyone talks about being concise, but few pull it off.

through a lot of noise. This does not imply that there will be consensus, but some well-developed questions will narrow the playing field since often claimant and respondent experts are answering fundamentally different questions posed to them by their respective counsel. Therefore, tribunal questions will naturally lead to answers that are at least closer to consensus.

Attributes like a genuine desire to provide a reasonable solution to tribunals and clarity in communication translate across forums.

What further steps can be taken to preserve the neutrality of arbitration experts?

It is very difficult to break into testifying role without having mentors. Opportunities such as co-signing reports and co-testifying are critical for young talent to gain experience and develop confidence. Of course these opportunities start with experienced experts presenting joint arrangements to counsel and demonstrating that a joint role truly is beneficial for the client. In my experience tribunals and counsel have been receptive and supportive of these arrangements as they recognise it is healthy for the industry to collectively develop young talent.

There will always be a tension straining the neutrality of experts as long as experts are employed by and work closely with advocates. Regular use of tools such as hottubbing and direct questions from tribunals to the experts has the potential to circumvent the natural advocacy elements of arbitral disputes.

To what extent can virtual hearing be relied on to decide highstake multibillion-dollar cases between parties?

Virtual hearings have already proven that they can be effective and reliable. Nothing is a perfect substitute for in-person hearings. However, the community committed to providing the best substitute it could. It succeeded.

S o m e p r a c t i t i o n e rs h av e argued that tribunals should demand more of quantum experts in reaching a consensus on the outcome value. To What is the key to succeedwhat extent do you share this ing as an expert across mulview? tiple arbitration institutions In my view, tribunals do not often exercise and courts in a wide range of their access and ability to direct quantum jurisdictions? experts, particularly during hearing and post-hearing periods. Questions asked of quantum experts has the potential to cut

The keys to succeeding as an expert are universal and are not, in my opinion, specific to institutions or jurisdictions.

What steps can younger experts take to improve their chances of getting testifying appointments? Is there an important role to play here for experienced experts?

What is the best piece of advice you’ve ever received?

Surround yourself with people capable of challenging you. This sounds straightforward but many people in our profession do not cultivate an environment where healthy debate is encouraged. The internal debates I have with my team are invaluable and make the work constantly thought-provoking. In addition, everyone on the team can participate in debates. If it works out, by the time a hearing rolls every good question has already been covered by my own team.

Peers and clients say: “He is great at complex damages assessments and commercial and investment arbitrations” “Garrett has a very measured temperament, gets his hands dirty and really knows the details of each client matter” “He is a very measured expert under cross-examination” whoswholegal.com/thought-leaders

329

Mike Saulsbury

Secretariat

Dubai www.secretariat-intl.com msaulsbury@secretariat-intl.com Tel: +971 4 565 5011

Biography Mr Saulsbury is a managing director of Secretariat. He specialises in providing consultation on construction and engineering projects and has principally been appointed by clients, or clients legal counsel, who are involved in large capital projects or other construction-related matters. He is frequently appointed as an independent expert and has testified many times as an expert witness. His professional experience includes working with global owners, developers, engineers, contractors and stakeholders to consult on matters related to project management, project controls, scheduling/programming, contract disputes and claims.

330

Expert Witnesses

What have been some of your greatest career highlights? I have had the privilege to live and work in the United States, the United Kingdom, and now the United Arab Emirates. While that naturally involved some professional and personal transitions, it has given me the opportunity to meet and work with people, and work on exciting projects, that I might not have had the opportunity to do otherwise.

Why did you choose to specialise as a construction expert and what do you enjoy most about this role?

Construction projects are by their nature challenging and dynamic, and rarely go exactly as planned. Early in my career, I was exposed to some of the more complicated project management issues such as dealing with claims and extensions of time. I found the necessary forensic investigations that I was doing to be interesting. As a result of those early experiences, I decided to pursue opportunities to build my career as an expert on even more challenging projects.

What do clients look for in an effective testifying expert?

A dispute exists because the parties do not see eye to eye. If things were perfectly clear to everyone involved, then there would be no need for an expert. In those circumstances, clients want, and need, an expert who provides objective, impartial, and wellreasoned opinions in order to bring more clarity to the dispute. Tribunals demand the same. Unless experts are able to do that effectively, the value they bring to the process is minimised.

How do construction litigation and arbitration proceedings differ? Which do you prefer? I have experience in both construction litigation and arbitration. Most of my work in the Middle East is in the arbitration arena. It is not so much of a preference, but the

reality of how most complex construction disputes are resolved here, especially with the dynamics of what are often international stakeholders.

What can independent experts offer in the market?

For a long time, the Middle East was dominated by claims consultants. As the dispute resolution market has matured, that has since changed and there are now a greater number of locally based experts specialising in construction disputes and arbitration. In arbitration environments, the most effective experts assist the tribunal by providing clear, independent opinions on the issues in dispute within their particular expert discipline.

Which types of projects are resulting in the most disputes at the moment? Why do you think this is?

Going back a decade or more, Middle Eastern countries invested heavily in brand new or expanded airport infrastructure. With those projects completed, there has been subsequent investment in metro projects across a number of major cities. As large projects with multiple stakeholders and complex delivery and supply chains, those projects have led to some disputes.

What is the greatest piece of career advice you have received?

I have had the privilege of working with many construction industry professionals, lawyers and other experts in my career, many of whom I owe gratitude for their mentorship and development in my career. While it is hard to pinpoint a single piece of advice, a number of people have instilled upon me the benefits of being a lifelong learner. It is a process that enables continued growth and adaptation to changing times throughout one’s career. You certainly can teach a dog of any age new tricks.

Peers and clients say: “Mike is thorough and has excellent attention to detail” “He has a pragmatic approach and expertly communicates with counterparties” “Mike is professionalism personified” “Both his reports and his oral evidence are exceptionally clear and persuasive” “He identifies strengths and weaknesses very early on” whoswholegal.com/thought-leaders

331

Kiran Sequeira

Secretariat Advisors, LLC Washington DC www.secretariat-intl.com

ksequeira@secretrariat-intl.com Tel: +1 202 871 6422

Biography Kiran is a managing director at Secretariat International. He is a leading expert on valuation and damages and is frequently appointed as the damages/ quantum expert by parties in large, complex, high-value matters in capital intensive sectors. He has been retained to provide expert evidence on financial, valuation and damages issues in over 90 matters. This includes matters before ICSID, ICC, LCIA, SCC, UNCITRAL, AAA/ICDR and SIAC tribunals, as well as in the US and UK courts.

332

Arbitrators & Counsel

What motivated you to operate in both advisory and dispute resolution services?

Early in my career, I worked in engineering consulting, where I implemented technical studies/designs for large public works projects. After my MBA, I joined Arthur Andersen and implemented consulting assignments (strategy/finance/economics and business optimisation) for Fortune 500 clients. Around this time (early 2000s), by happenstance, I got staffed on a disputes (international arbitration) assignment, which I found fascinating. It enabled me to leverage my technical and management consulting skills, as well as my training in finance and valuation. I was able to add more value to these engagements and I enjoyed the opportunity to work with lawyers and clients located across the globe addressing matters of significant national and international importance.

What are the advantages and disadvantages of having a global practice?

One of the main advantages of a global practice is the ability to work with a highly talented and diverse group of people on a wide range of issues across various geographies and industries. However, these perks are accompanied by certain expectations including travel, a willingness to take calls/ meetings outside of the regular workday, longer work hours, which can contribute to an added level of stress. But these are challenges that I (and many of my peers) are more than willing to embrace, and quite frankly, we would not have it any other way.

What is the key to succeeding as an expert across multiple arbitration institutions and courts in a wide range of jurisdictions?

It is actually quite simple. First and foremost, a damages expert must embrace his or her role, which is to remain objective and independent, and assist the tribunal in arriving at an informed view on damages.

Know your reports and the relevant case materials well — there is no substitute for being well prepared. Recognise that you can only assist the tribunal in areas that are squarely within your area of expertise, you cannot (and should not) try to solve the case.

How do you effectively coordinate on cases when working alongside experts with other areas of expertise?

In my reports, I frequently rely on inputs from technical experts, scientific experts, delay experts, industry experts, etc. I find it useful to have a call early in the process to explain to the other expert(s) why I will be relying on them for my damages calculation/valuation, and how their inputs/opinion will impact the outcome of my valuation. It is also useful to have progress calls along the way, so the experts are on the same page and rely on the same set of facts (or counterfactual assumptions) for their respective reports. My background/experience in engineering helps me coordinate effectively with technical experts in capital intensive sectors (eg, mining, oil & gas, infrastructure, manufacturing) since I’m able to quickly get my arms around the key technical issues that impact quantum/value.

Looking back over your career, what has been the most memorable arbitration you have been a part of?

This is a tough one, because each arbitration is unique, but the UFG v Egypt arbitration stands out for several reasons: (i) the overall intensity of the case and the vigour with which the issues were debated and addressed by both sides; (ii) the high value of the claim and its significance for both claimant and respondent (the case stems from the Egyptian gas crisis); (iii) an outstanding project team, combined with highly informed and hands-on involvement of client and counsel, which contributed to a successful outcome on quantum (damages award in excess of $2 billion).

What underrated skills would you encourage the up-and-coming generation of arbitration professionals to develop and why?

The future is bright for the next generation of arbitration professionals. While there are many reasons to “trust the process” and “do the drill” to build the requisite competencies across levels, here are a few skills that don’t usually make the short-list: (i) learn when (and how) to say “no,” whether within your firm or externally with clients/counsel; (ii) seek out the road less travelled, don’t underestimate jobs that may seem small/irrelevant - the best relationships sometimes sprout from such situations where you step out of your comfort zone (and go the extra mile) for a client; (iii) find your own pace and wavelength, and be true to your strengths and interests; do not measure your success (or failure) by reference to others.

As a managing director at Secretariat, what are your main priorities for the firm’s development over the next couple of years? •

•

Focus on developing the next generation of experts within the firm. We have a very bright and talented group of young professionals who, with some mentoring and guidance, will no doubt become the world’s leading experts in the years ahead. Leverage the collective and complementary practice lines within Secretariat (eg, delay, quantum, valuation, and economics) to add more value to our clients and counsel.

What is the best piece of advice you’ve ever received?

Never get overconfident or complacent about your opinion. Be yourself in the witness box. Be humble, remember that who you are is greater than what you do. Pay it forward – your success and legacy will be defined more by what you do for others than yourself.

Peers and clients say: “Kiran is excellent in all aspects of international arbitration” “He has an excellent and strategic mind and great attention to detail” “Kiran is sharp, user friendly and delivers quality work” “Kiran is a highly impressive expert” whoswholegal.com/thought-leaders

333

Matthew Shopp

Secretariat Advisors, LLC Washington, DC www.secretariat-intl.com

mshopp@secretariat-intl.com Tel: +1 202 871 6421

Biography Mr Shopp has nearly two decades of experience providing financial and valuation expertise in the context of international disputes. He has worked on projects in industries such as mining, oil & gas, electricity, real estate, construction, transportation, manufacturing, consumer products, telecommunications, and financial services. Mr Shopp has provided expert testimony in ICSID, UNCITRAL, ICC, PCA and LCIA arbitrations and has been recognised by Who’s Who Legal as a Global Elite Thought Leader in Arbitration.

334

Arbitrators & Counsel

What led you to pursuing a career as an arbitration expert witness? After obtaining my MBA in Finance and initially working as a management consultant in the Middle East, I was incredibly fortunate to join the nascent international arbitration practice at Navigant Consulting. In addition to combining my passion for finance, economics, and law, I cannot imagine another career that offers the same opportunity to work with brilliant people from a wide range of different backgrounds in diverse geographies and industries. I especially enjoy that no assignment is ever the same, such that there is always an opportunity to learn, gain experience, and establish new professional relationships.

What is the key to succeeding as an expert witness across multiple arbitration institutions and courts in a wide range of jurisdictions?

Possessing an absolute dedication to consistency and independence. As an expert, reputation is your most valuable asset, and you should not risk it for any client or case. Following a consistent approach and maintaining intellectual honesty – whether you are in an ICSID arbitration in Washington, DC, a UK High Court proceeding, or an SAIC arbitration in Singapore – helps establish credibility with arbitrators and counsel. Beyond that core tenet, being intensely hands-on in every case and learning how to distil complex

analyses into easily digestible answers are the main characteristics that distinguish the best experts.

What effect does a more interventionalist approach from tribunals have on independent expert work?

In my experience, tribunals adopting a more active role with the parties and experts leads to better outcomes. A more interventionist approach helps focus on the issues that matter and gives the tribunal the information they need to produce wellreasoned, accurate awards. However, when faced with an interventionist tribunal, it is essential to have experienced counsel and experts who know when to push back if the tribunal has missed key points or is overly focused on specific issues at the expense of the broader case narrative. That is particularly true when the matter involves complex, interrelated issues that require careful and holistic consideration, as is often the case in high-value international arbitrations.

What steps can be made to increase diversity in the arbitration field?

It is encouraging that the arbitration field is significantly more diverse than it was when I began my career two decades ago. However, despite the great strides that have been made, there is still a long way to go with respect to gender, ethnic, and geographic diversity. That is particularly true for expert witnesses, who tend

to reflect the makeup of the accounting, finance, and economics professions (none of which are known for their diversity). Although increasing diversity in the expert witness field will remain a work in progress for the foreseeable future, actionable steps that we in the industry can take include recruiting and developing a more diverse set of junior employees, providing mentorship opportunities to help long-term development, fostering an inclusive culture that encourages diversity at all levels, and highlighting to clients the strengths and benefits of diverse project teams and experts.

What has been your greatest achievement to date?

Being part of the successful integration of Versant Partners into Secretariat after we were acquired in August 2021. Although helping build Versant into a formidable player in the world of international arbitration was extremely rewarding, joining forces with Secretariat – the pre-eminent global expert services firm – has greatly exceeded my expectations and is the capstone of my career to date. Secretariat’s global reach and wide range of service offerings have greatly enhanced our ability to solve clients’ most complex and challenging problems, and the firm’s commitment to providing best-in-class expertise is unrivalled. The sum is truly greater than the individual parts, and I look forward to participating in Secretariat’s continued growth and success for many years to come.

Peers and clients say: “Matthew has an unparalleled ability to analyse complex data and explain it in a straightforward, precise and accessible manner” “He has the ability to zero in on the weaknesses of a damages case, which is extraordinary” “Matt combines encyclopaedic knowledge with an easy-going and accessible manner that makes him the best expert to work with in the game” whoswholegal.com/thought-leaders

335

Luke Steadman

Alvarez & Marsal

London www.alvarezandmarsal.com lsteadman@alvarezandmarsal.com Tel: +44 20 7072 3286

Biography Luke Steadman is a partner in Alvarez & Marsal’s disputes and investigations practice, where he specialises in providing accounting expert evidence for international arbitration and domestic litigation. He has over 25 years’ experience as a forensic accounting expert witness across Europe, Asia and the United States. He has acted as both party-appointed and tribunal-appointed expert on numerous matters and been cross-examined on more than 30 occasions in hearings under ICC, LCIA, Hong Kong, Dubai and other Arbitration Rules.

336

Expert Witnesses

Describe your career to date.

I trained as a chartered accountant with a UK audit firm before switching, in 1994, to what was then the nascent discipline now known as forensic accounting (back then we called it “litigation support”). I have practised it exclusively since. My early career was mainly focused on accounting investigations, which took me all over the world, and in explaining complex transactions and money flows to courts and juries in the UK and internationally. My focus now tends to be on expert witness matters, principally considerations of quantum of damages and valuation, as well as accounting issues and concepts. I provide expert evidence in both arbitration and litigation proceedings.

What do clients look for when selecting an expert witness?

Expertise and experience. Expertise, because someone who is not an expert in their field will generally be a bad choice and will come unstuck in cross-examination; experience because of the unique way in which expertise is challenged in adversarial arbitration or litigation proceedings. The work of an expert is, in practice, part “journey” and part “translation” as regardless of what we find, however complex or esoteric, it has to be communicated succinctly and clearly in legal proceedings for it to be of use.

How has covid-19 impacted arbitration hearings?

To start with, most hearings were simply delayed and there was some nervousness about virtual hearings, including by myself. However, it soon became clear to parties

and tribunals that virtual hearings were technologically possible, practical and could efficiently replicate in-person hearings without compromising the nature of the process. I have found them to be just as effective for examining witnesses and experts. What will be interesting to see is whether virtual hearings will replace in-person hearings completely in the future, given the considerable savings in costs.

What differences do you notice when providing evidence in litigation compared to arbitration proceedings?

From an expert’s perspective, there is little difference, perhaps only in the procedures used by each. As forensic accountants, we are fortunate to have a common rulebook which means that we can act on disputes in practically any jurisdiction. The effectiveness of any hearing depends on the participation and preparation of counsel and those charged with arriving at a judgment or award, while concurrent evidence (expert “hot-tubbing”) is no longer only to be found in arbitration. As experts, we hold ourselves to the same standards in both arbitration and litigation. I enjoy giving evidence in any forum, while being challenged on my views by some of the best advocates and arbitrators.

What trends are you seeing emerging in the types of disputes currently going to arbitration?

Geographical – with arbitration the choice of many parties, so many disputes, whether resolved virtually or in hearings in any of

the arbitration cities, now involve companies from far-flung jurisdictions which always makes things interesting for an expert.

How would you like to develop your practice in the next five years?

It should be about training the next generation of experts. We have a strong and ambitious team at A&M who I work with on a day-to-day basis. I have enjoyed being part of the faculty of an arbitration provider assisting both new counsel and new experts with cross-examination training.

What advice would you offer to new forensic accountants?

I always meet with new forensic accountant trainees at our firm in the first week or so of their careers and offer them three pieces of advice that have served me well over the past 20-plus years in disputes. First, start with the cross-examination and work backwards into the report. Focusing on the unique way in which our work is scrutinised and challenged allows us to present that information in a clear, objective and unemotive way. Second, realise that what makes a good report and strong evidence is the ability to communicate complex issues in a clear, precise and uncompromised manner. There is a different skill to be mastered between understanding and communicating, and only the latter is useful to clients and tribunals. Third, an application of Occam’s razor is often the most helpful tool available to a forensic accountant. Among competing hypotheses, the one with the fewest assumptions is often to be preferred.

Peers and clients say: “Luke is a very measured and sensible expert” “He is incredibly well regarded in the international arbitration community”

whoswholegal.com/thought-leaders

337

Michael Stokes

Ankura

London www.ankura.com michael.stokes@ankura.com Tel: +44 7979 498 695

Biography Michael Stokes is a senior managing director at Ankura, based in London. He is an internationally recognised quantum expert, with more than 30 years of experience in the construction industry. He is regularly appointed as an independent expert on complex and high-value disputes. Having been instructed in arbitration or litigation on circa 60 occasions, Michael has testified in a number of forums and jurisdictions including the UK, France, Denmark, UAE, Qatar and Australia.

338

Arbitrators & Counsel

After 30 years of practice, how do you keep the edge to maintain an internationally renowned practice?

of technological advancement! That said, one can see that as interfaces between enterprise systems become more robust and user-friendly much of the reconciliation between, for example, time-recording systems and cost ledgers, is now fully automated, saving time and expense, and improving accuracy.

quantum, and that is understanding very clearly what factual matters and/or professional opinions are causing the quantum differences between the parties and/or experts, and what is the quantum that arises on each parties’ case.

It is difficult to single out a single arbitration, but the cases where my counterparty expert and I have been able to significantly narrow the quantum issues that the tribunal needs to consider, and clearly articulate our differences always stand out. Driving these efficiencies through detailed and accurate work is always satisfying.

Often large infrastructure disputes have a lot of moving parts, with multiple heads of claim across different elements of the underlying project. An ability to absorb significant volumes of detail, without losing sight of the big picture is, therefore, essential.

respective experts differ most. Give the tribunal what they want and need!

In truth, quantum analysis in the independent expert arena is not at the forefront

and sophisticated tribunals only tend to be interested in one thing in relation to

Appreciating the level of trust that both the client and its legal team place in you in what are, often, hugely important matters for the business tends to focus the mind. That, and continually striving to learn from clients and colleagues helps maintain your edge.

If you could change one thing about giving testimony as an You have significant experi- arbitration expert, what would ence and expertise with major it be and why? disputes in the infrastructure I would increase the use of agreed schedWhat has been your most satis- and natural resources sectors. ules of issues in respect of quantum, to fying arbitration dispute to date What skills do experts need to help set the agenda for the hearing with a and why? thrive in such disputes? focus on the large value items where the

What impact does a more How are AI and other techno- interventionist approach from logical developments affecting tribunals have on independent the analyses you conduct? How expert work? do you anticipate it will affect In my experience this is always a posianalyses moving forward? tive influence, because experienced

What are the most significant challenges currently facing your clients and how can experts help to address them? As projects become more complex and the volume of data captured on typical projects increases, the cost of international arbitration is commensurately increasing. With this in mind, it is more important than ever that experts strive to work as efficiently as possible, identifying the key issues quickly and maintaining focus and proportionality.

Peers and clients say: “Michael is always calm, measured and on top of the detail” “He is my go-to expert for quantum issues” “A reassuring presence to have on the client’s side” “An expert who communicates as clearly in writing as he does in person” whoswholegal.com/thought-leaders

339

Erik van Duijvenvoorde

Accuracy

Paris www.accuracy.com erik.van.duijvenvoorde@accuracy.com Tel: +33 1 58 75 70 31

Biography Erik van Duijvenvoorde specialises in the expert assessment and quantification of damages in both investor-state and commercial arbitrations. He has testified on numerous occasions, including before tribunals constituted under ICSID, UNCITRAL, ICC, NAI and DIFC-LCIA rules, as well as before the New York Bankruptcy Court and the DIFC courts. Erik has dealt with dispute situations in a broad range of industries, including energy, mining, construction, manufacturing, retail and distribution. Erik co-leads Accuracy’s global arbitration practice.

340

Expert Witnesses

Describe your career to date.

I have assisted clients on business, economic, accounting and valuation issues for over 30 years. Based in both London and Paris, my career has encompassed the audit of high-growth businesses, corporate recovery and M&A transactions at a Big Four accounting firm. I followed this with a spell as a partner at a global private equity fund where I headed the European teams in charge of financial reviews, valuations and portfolio monitoring. As a partner at Accuracy, I have spent the past 10 years building the firm’s global advisory practice in London and increasing its cross-border capability to serve clients in international arbitration.

What has been the most rewarding part of practising in such an international discipline? Born in Kenya, I have always had a special affinity for Africa, and working in international professional services has certainly allowed me to travel widely and experience different cultures. I once visited Senegal, Burkina Faso and the Ivory Coast in the space of a week, all on my client’s private jet.

How has your previous professional experience helped you in your current role?

My previous professional experience has helped me in my current role in many ways. Perhaps the best example is my previous experience of having directly advised clients seeking to divest, acquire or finance business interests in the context of external growth strategies, joint ventures, management and leveraged buyouts or minority shareholdings. This “real life” experience allows me to bring more insightful and

helpful expert testimony on both contentious valuations and post-M&A disputes.

Your practice spans a range of industry sectors. To what extent is sector-specific knowledge on the part of the expert important when testifying in commercial disputes? Industry experience is often a differentiating factor that parties take into account when selecting experts. It is essential that the damages expert is able to understand and challenge the findings of technical industry experts before then correctly reflecting underlying assumptions in any assessment of damages. Teaming up with other experts is common in certain sectors, whether internally within the same firm, or with external specialists. At Accuracy, our experts frequently team up on disputes involving capital-intensive construction and infrastructure projects, market sizing and competitive positioning, and regulated markets such as renewable energy.

hearings. Expert conferencing, joint statements setting out the areas of agreement and disagreement between the experts and, in the right circumstances, flexible damages models are all positive developments, but they often meet with limited success despite the good intentions. Subsequent joint instructions would be beneficial to taking arguments to a conclusion even if this results in a longer process, and further submissions.

What steps can younger experts take to improve their chances of getting testifying appointments? Is there an important role to play here for experienced practitioners?

The single thing they can do is join an enlightened and progressive firm. Accuracy invests heavily in developing its people and providing a dynamic working environment. We actively seek opportunities for younger experts to testify and, where the context allows, encourage them to do so alongside more experienced colleagues.

Do you have any tips for counsel on how to get the best out What makes Accuracy stand of expert teams? out from its competitors in the My tip for counsel would be to avoid market? treating your damages expert as a calculating machine to which information is drip-fed. I strongly believe the closer the working relationship between counsel and the experts, the better.

In the words of one of my clients: “The need for an excellent expert goes without saying, but what differentiates Accuracy from the rest is the quality of your teams.”

In my experience, opposing experts often propose widely differing figures. In these cases, I would like to see tribunals being more direct, both during and after

airline in administration for a net sum of US$3 million, and I was onboard for its test of airworthiness. It was certainly rewarding to be back on the ground.

What has been your most What suggestions do you have rewarding achievement to for tribunals faced with large date? differences in quantum figures I once had the opportunity to sell a 30-yearproposed by opposing experts? old Boeing 737 on behalf of an African

Peers and clients say: “Erik is very smart and eloquent” “He is excellent under cross-examination” “He is very open-minded and comes up with creative solutions” “A very convincing expert” whoswholegal.com/thought-leaders

341

Meera Wagman

Secretariat Advisors

New York www.secretariat-intl.com mwagman@secretariat-intl.com Tel: : +1 917 612 5458

Biography Ms Wagman is managing director of Secretariat and has over 20 years of experience in the construction industry focused in the areas of dispute resolution, delay and disruption analyses, project advisory and scheduling. She has provided independent expert services to owners, contractors and designers on complex construction disputes across all sectors, including heavy civil, oil and gas, infrastructure and transportation, power and energy, vertical construction, and marine salvage. Ms Wagman has a BSc in civil engineering from Cornell University.

342

Expert Witnesses

What attracted you to a career as a construction expert?

I like to describe my career to people as the mid-point in a Venn diagram of three subjects: engineering, construction, and law. Being able to stay connected to all of these areas – each important, interesting, and rewarding – makes this the perfect career for me. One of the aspects I enjoy most is the technical nature of the work. Each project is different with unique and sometimes obscure issues. Learning about these issues provides for an ongoing stream of education and refinement of my knowledge base.

undertaking more straight-forward analysis tasks. And as said above, I thoroughly enjoy being exposed to so many different types of projects and issues. Each experience feeds into the next in some way even if the issues are completely different.

What makes Secretariat stand out from its competitors in the market?

Secretariat was founded with a discrete focus on construction and specifically delay and quantum analyses. Having a group of highly regarded experts who all specialise in this rather niche industry allows for collaboration and knowledge sharing which brings decades of experience and talent to the table.

job cost reports, change orders, RFIs, etc. With that experience, along with the different types of projects I was fortunate to work on, I feel that I came away with a deep understanding of the necessity and importance of project controls and its role in bringing in a project on time and within budget. I believe that having a foundation in the logistics of a project bolsters my role as a construction expert in working through the significant amount of project documentation that is created on a project. It helps me seek the right facts through a complicated maze.

What advice would you give to Looking back over your career, practitioners just starting out what is the most interesting and hoping to one day be in your arbitration you have been a position? part of? How is technology changing the Take pride and ownership in your work. I have been lucky in the breadth of projects way delay and disruption dis- Being an expert in your field is your responI have been involved with through the years putes are conducted? sibility – and your name. Significant deciand around the world. A recent arbitration that I was a part of and that was extremely interesting for me involved a delay analysis for marine salvage work. As this was not in the traditional construction realm of projects that I work on, I found it uniquely challenging and rewarding.

Technological advancements have helped with resolving disputes in that accurate project information can be assessed faster, which in turn allows parties to identify and evaluate issues in real time (or at least closer to it). The faster problems are identified, the more opportunities there are for the parties to mitigate and/or resolve them.

sions will be based upon your analysis. It is therefore critical that experts are able to present the facts clearly, effectively and independently.

What do you enjoy most about working in your current role as In what ways does your expeconstruction expert? rience as a project engineer Whether working in a project advisory or enhance your practice as an dispute resolution role, I am always moti- expert? vated and inspired when looking at and assessing risk. I appreciate the way it flexes my mind in a different manner than when

Early in my career, I gained a lot of practical experience working on site, developing and overseeing project controls – scheduling,

Peers and clients say: “She has analytical depth in conjunction with narrative skill” “She is able to identify the critical points succinctly while at the same time providing the necessary evidentiary support” “Meera is at the top of her craft in terms of skillset and intelligence” “She provides rigorous cause and effect analysis” whoswholegal.com/thought-leaders

343

Vikki Wall

Kroll

London www.kroll.com vikki.wall@kroll.com Tel: +44 203 096 6660

Biography Vikki is a forensic accountant with over 25 years’ experience of dealing with both the quantum and accounting aspects of disputes, acting as testifying expert in cases before international arbitration tribunals (HKIAC, ICC, LCIA, ICSID and UNCITRAL) and the UK Court. Vikki has a first-class mathematics degree from Leeds and Paris VII Universities, is a fellow of the Institute of Chartered Accountants of England and Wales and past chair of its forensic advisory panel.

344

Expert Witnesses

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients?

For me, no two disputes are ever the same but similar issues frequently arise when determining the quantum of loss in arbitrations. Having extensive experience calculating damages in numerous geographical and industry sectors, being instructed sometimes by claimants and sometimes by respondents, can be extremely beneficial in providing the best solution to a thorny problem. Recalling previous evidence and previous challenges to provide alternative choices for my work, and potentially for the consideration of the legal team and client, based on my involvement in cases related to entirely different businesses or parts of the world makes my testimony stronger and my advice and opinions more useful to the client.

What do you enjoy most about working as a forensic accounting expert?

I love the intellectual challenges that each new project brings, that I am always learning, even when working on cases in industries that I frequently consider in disputes (such as mining, construction, manufacturing, real estate…), there’s always new issues to consider with each new case – and I hugely enjoy interacting with the intelligent people of the international arbitration world.

of weakness in expert reports and even on the opposing expert (it’s a small world!) – and do use the whole expert team who will be familiar with the detailed calculations: particularly useful for your redirect.

What are the common pitfalls when preparing for crossexaminations or hot-tubbing and what advice would you give to practitioners starting out in the field?

What I’ve seen far too often, and is avoidable with appropriate preparation, is experts being unfamiliar with the details of an expert report, not understanding aspects of the case with a bearing on quantum and being an advocate for the client, rather than following the responsibility t be an independent expert with a duty to the tribunal. My advice is to pay attention to these pitfalls when starting out, know your own evidence, be challenging and interested in other relevant issues and ensure you maintain your independence when acting as a party-appointed expert.

How does Kroll distinguish itself from the competition?

For me, it’s the quality of the professional staff, from our forensic accounting expert team, my colleagues in the construction and IT expert services teams and my colleagues both in London and worldwide with deep knowledge and expertise in industry, valuation and forensic investigation.

Do you have any tips for coun- What advantages accompany sel on how to use an expert introducing experts early in the team effectively? dispute process? Two simple tips: first, please communicate regularly with us and second, you can use us for more than report production, e.g. providing information on areas

Although I’m biased, there are many! We can offer a ‘quick and dirty’ opinion of the likely amount of damages based on the available, potentially limited, evidence to

get an independent opinion of how much the case is worth, maybe for settlement purposes, for funding purposes or just to get a reality check on a client’s calculations. We can also assist in requesting appropriate financial information (from the client or opposing side) to get relevant, helpful quantum disclosure and similarly meet relevant witnesses and, if appropriate, other technical experts early. It may also be helpful to get our input on the quantum timetable, potentially led by the tribunal, to agree an optimal expert process. This hopefully leads to an appropriate and well-evidenced quantification included in pleadings from the start of the arbitration.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

The international arbitration community looks very different to when I started over 25 years ago, it has a far greater mix of nationalities and genders than ever. However, the diversity of forensic accounting experts has fallen behind the improvements seen in counsel and arbitrator appointments, so we’ve still got some way to go. I’m proud to be a female expert with an excellent team and have a responsibility to ensure they form part of the diverse pool of future leaders.

What is the best piece of advice you’ve ever received?

Get a dog! Being forced to take a break from complicated analysis for fresh air helps me return reinvigorated with fresh eyes and ideas. I consider this vital so that I can provide both the detail and ‘big picture’ in my evidence and communicate my points clearly for a tribunal’s consideration.

Peers and clients say: “Vikki is very impressive and a great communicator” “She is clear, decisive, very well organised and easy to work with” “She really knows the details of the case and doesn’t miss anything” “She is brilliant under cross examination” whoswholegal.com/thought-leaders

345

Heiko Ziehms

FTI Consulting

Frankfurt am Main www.thinkbrg.com heiko.ziehms@fticonsulting.com Tel: +49 69 92037136

Biography Heiko Ziehms is a senior managing director at FTI Consulting. He focuses on international arbitration and litigation and advises clients on economic, accounting and valuation issues. He has worked on some of the largest and most complex corporate disputes in Europe with values up to several billion euros and is experienced in giving oral expert testimony. He is the author of a recent book on M&A disputes and completion mechanisms.

346

Expert Witnesses

The views expressed herein are those of the author and not necessarily the views of FTI Consulting, Inc, its management, its subsidiaries, its affiliates or its other professionals.

What attracted you to the field of arbitration?

The variety of challenging corporate finance problems and the complex and international nature of the work, among other things. Wallace Sayre said that disputes in academic life can be so bitter because the stakes are so low. In arbitration, the stakes are usually high, and it is easy to get a sense that the work and the quality of ideas matter to the outcome.

Which key qualities and attributes do successful expert witnesses need to possess?

First and foremost technical expertise, a clear sense of where the area of expertise ends, and the commitment to remain within it at all times. Other than that, integrity, communication skills, reliability, being quick on their feet, being well prepared, and the ability to withstand intense scrutiny and examination.

& acquisitions. And the external shocks have kept on coming. In many cases, acquisition targets have fallen far short of the expected returns that had been priced into bids, especially in the industries most affected by the pandemic or by disruptions to supply chains. Similarly, sellers have been disappointed as a result of much lower-than-expected earn-out payments. Disappointment breeds disputes. Third, in the same context, we have seen various cases where buyers decided not to close deals, despite signed share purchase agreements (SPAs), even without material adverse change clauses. Where this is in breach of contractual obligations it can raise complex damages valuation questions. And lastly, reps and warranty insurance is now very common in European M&A transactions, and this has started to change certain SPA standards, including damages clauses. It is also changing some aspects of the work we do as experts in M&A disputes.

on past trading. Forensic accounting frequently supplies the input factors.

There are a number of ways to look at that question. One is that forensic accounting often identifies previously unknown liabilities or uncovers overstated earnings or other accounting errors (intentional or otherwise). Damages valuation then asks: how do these omissions and accounting errors translate into damages? That can be a very complex question that goes to the valuation-relevance of accrual accounting. One way to view valuation (including that of damages) is as a type of pro-forma accounting for the future, often based

unparalleled expertise in areas ranging from all types of valuations and forensic accounting to statistics, delay analysis, and restructuring, to name only a few. It is often at the intersection of disciplines that damages valuation is complex – take delay and quantum, an area we work on with joint teams of engineering and damages experts. I also frequently work with colleagues in our technology practice, strategic communications, and restructuring as well as industry experts, for example from our energy or telecoms groups.

Is there anything that is potentially different about damages quantification in M&A disputes?

Yes. In general, when considering a claim for breach of contract, the actual position is often relatively straightforward to establish as it’s readily observable, and what’s more difficult to determine is often the counterfactual position had the contract not been breached. In warranty breach cases in M&A disputes, on the other hand, it is the actual position that is often more difficult to establish – for example, what the target company is actually worth, given a breach. This is because the parties have usually valued the no-breach (as warranted) position, thinking that was reality. A related question that can arise in these cases is whether the price paid in a transaction corresponds to the value as warranted.

What trends are you observing in commercial disputes, Can you talk about which other and in M&A disputes more Can you describe the intersec- parts of FTI you collaborate specifically? tion between forensic accounting with most frequently? I’d make four observations. First, the use issues and damages valuation? Being part of FTI means having access to of third-party funding has increased. This applies to many types of disputes. Product offerings are broader, and there is more competition among funders, including in the German-speaking markets. Second, the combination of a strong M&A market with comparatively high valuations before the pandemic and the magnitude of the disruptions that followed has meant significant potential for buyers to be disappointed after closing. The market’s strength has continued, with 2021 a record-breaking year for mergers

Peers and clients say:“Heiko is able to quickly understand key drivers of business plans and the key disagreements of the arbitration that he is working on” “He is able to communicate relatively complex concepts to audiences that are significantly less knowledgeable than him in certain fields” “Heiko is incredibly diligent, thorough and methodical when it comes to addressing the arbitration from the overall conceptual level down to very granular level” whoswholegal.com/thought-leaders

347

Thought Leaders in Arbitration 2022 | Expert Witnesses Argentina

Jonathan Humphrey, HKA • Q&A Stephen Rae, FTI Consulting

Mike Pilgrem, FTI Consulting Joanne Prior, Kroll • Q&A Luke Steadman, Alvarez & Marsal • Q&A Michael Stokes, Ankura • Q&A Vikki Wall, Kroll • Q&A Dominic Wreford, Interpath Advisory Andrew Yendall, Yendall Hunter Limited Hervé de Trogoff, Accuracy

Canada

France

Daniela Bambaci, Berkeley Research Group • Q&A Sebastian Zuccon, Compass Lexecon

Australia

Ontario

Chris Milburn, Secretariat • Q&A Neal Mizrahi, EY Howard Rosen, Secretariat • Q&A

Czech Republic

Sirshar Qureshi, PricewaterhouseCoopers Ceska republika sro

England

Timothy Allen, PwC Neil Ashton, StoneTurn • Q&A Bruno Augustin, Kroll • Q&A David Barry, Kroll • Q&A Ermelinda Beqiraj, PwC Mark Bezant, FTI Consulting Richard Boulton QC, Berkeley Research Group • Q&A Kathryn Britten, AlixPartners UK LLP Richard Caldwell, The Brattle Group Julian M Delamer, Compass Lexecon Austin Duffy, Kroll • Q&A John Ellison, FTI Consulting • Q&A Andrew Grantham, AlixPartners UK LLP Philip Haberman, Kroll Roula Harfouche, HKA • Q&A Liam Holder, Secretariat • Q&A Frank Ilett, Kroll • Q&A Richard Indge, Ankura Valery Knyazev, Kroll • Q&A Carlos Lapuerta, The Brattle Group Gervase MacGregor, BDO LLP • Q&A Wendy MacLaughlin, gb2 LLP • Q&A Franco Mastrandrea, HKA • Q&A Noel Matthews, FTI Consulting Boaz Moselle, Compass Lexecon Chris Osborne, Osborne Partners Rob Palles-Clark, Kroll • Q&A Liz Perks, Kroll • Q&A

348

Directory | Expert Witnesses

Nicolas Bourdon, Accuracy Matthias Cazier-Darmois, FTI Consulting • Q&A Anthony Charlton, HKA • Q&A Frédéric Elkeslassy, Ernst & Young • Q&A Andrew Flower, Alvarez & Marsal • Q&A Juliette Fortin, FTI Consulting • Q&A Jean-Luc Guitera, KPMG SA Erik van Duijvenvoorde, Accuracy • Q&A

Germany

Alexander Demuth, Alvarez & Marsal • Q&A Thomas Hofbauer, FTI Consulting • Q&A Kai F Schumacher, AlixPartners GmbH Heiko Ziehms, FTI Consulting • Q&A

Hong Kong

Mike Allen, Secretariat • Q&A Trevor Dick, Alvarez & Marsal • Q&A Mustafa Hadi, Berkeley Research Group • Q&A Jon Rowell, FTI Consulting

India

Mrinal Jain, Secretariat • Q&A Montek Mayal, Osborne Partners Geetu Singh, PricewaterhouseCoopers Services LLP

Korea

Braden Billiet, FTI Consulting • Q&A

Romania

Giovanni Di Folco, Techno Engineering & Associates Group • Q&A

Singapore

Garry Crossley, FTI Consulting

Jonathan Ellis, Secretariat • Q&A Amit Garg, Secretariat • Q&A James Nicholson, FTI Consulting Michael Peer, Control Risks • Q&A Jon Prudhoe, Ankura • Q&A

Spain

Fernando Cuñado, KPMG Asesores SL Laura Cózar, Accuracy • Q&A Jorge Padilla, Compass Lexecon

Switzerland Vaud

Geoffrey Senogles, Senogles & Co, Chartered Accountants | Valuations and Forensic Accounting

United Arab Emirates

Aidan Coyne, Kroll Steve Harris, FTI Consulting Jacqui Record, Ankura • Q&A Mike Saulsbury, Secretariat • Q&A

USA

Colorado

Anamaria Popescu, Berkeley Research Group • Q&A

District of Columbia

Manuel A Abdala, Compass Lexecon Daniel Flores, Quadrant Economics LLC Christopher J Goncalves, Berkeley Research Group • Q&A Timothy Hart, Credibility International • Q&A Brent Kaczmarek, IAV Advisors LLC Pablo D López Zadicoff, Compass Lexecon Carlos Pabon-Agudelo, Infrastructure Economic Consulting LLC • Q&A Garrett Rush, Secretariat • Q&A Kiran P Sequeira, Secretariat • Q&A Matthew Shopp, Secretariat • Q&A

Georgia

Don Harvey, Secretariat • Q&A

New York

Carla Chavich, Compass Lexecon Santiago Dellepiane, Berkeley Research Group • Q&A

Michael Seelhof, Seelhof Consulting LLC Pablo T Spiller, Compass Lexecon Greig Taylor, AlixPartners Meera Wagman, Secretariat • Q&A

Laura Hardin, Alvarez & Marsal • Q&A Miguel A Nakhle, Compass Lexecon Wayne Wilson, B Riley Advisory Services

Texas

Jeffrey E Fuchs, Delta Consulting Group • Q&A

Casey Ballard, The Claro Group Dean Graves, Alvarez & Marsal • Q&A

Virginia

whoswholegal.com/thought-leaders

349

SUBSCRIPTION OFFERING THE LEADING RESOURCE ON INTERNATIONAL ARBITRATION NEWS AND COMMUNITY INTELLIGENCE

SUBSCRIPTION BENEFITS

Stay ahead with our daily international arbitration news and analysis

GAR provides in-depth reports of the latest developments in both commercial and investment arbitration.

Find top global arbitration practices worldwide

GAR identifies the top law firms and their achievements in the GAR 100, our annually updated guide to approved international arbitration firms.

Work smarter with focused insight

Receive a series of guides, regional reviews and know-how products written by the best practitioners around the globe.

Stay in touch with the community

Learn of the latest counsel moves, hires, promotions challenges and gossip within the arbitration community.

Keep informed with our conference coverage

Hear the latest trends and thought leadership with reports from all major conferences as well as our own.

Get unique insight with GAR’s Arbitrator Research Tool (ART)

Find out more

subscriptions@globalarbitrationreview.com +44 20 3780 4194 www.globalarbitrationreview.com Operating hours: 9am till 6pm GMT

ISSN 2515-088X

WWL Thought Leaders Arbitration 2022

Articles inside

John Ellison

Jonathan Ellis

Frederic Elkeslassy

Austin Duffy

Giovanni Di Folco

Santiago Dellepiane

Trevor Dick

Alexander Demuth

Laura Cózar

Matthias Cazier Darmois

Anthony Charlton

Richard Boulton QC

Braden Billiet

Bruno Augustin

David Barry

Daniela Bambaci

Neil Ashton

Tobias Zuberbühler

Gerold Zeiler

Mike Allen

Karim A Youssef

Jennifer Younan

Urs Weber-Stecher

Carita Wallgren Lindholm

Janet Walker, CM

Robert Wachter

Claus von Wobeser

Annet van Hooft

Cosmin Vasile

Albert Jan van den Berg

Hiroyuki Tezuka

Pierre Tercier

Jonathan Sutcliffe

Franz Schwarz

Hi-Taek Shin

Eric Schwartz

Davinder Singh SC

Philippe Pinsolle

Markus Schifferl

Christoph Schreuer

Michael Polkinghorne

John V H Pierce

Patrick W Pearsall

Wolfgang Peter

Pierre Mayer

James Morrison

Alexis Mourre

Ziad Obeid

Isabelle Michou

Loukas Mistelis

Colin Ong QC

Jean Marguerat

Dana C MacGrath

Arthur Ma

Crenguta Leaua

Steven Y H Lim

Carolyn Lamm

Nadja Jaisli Kull

Christian W Konrad

Louis B Kimmelman

Gisela Knuts

Kevin Kim

Douglas Jones AO

Moritz Keller

Alexandra Johnson

Stephen Jagusch QC

Benjamin Hughes

Brenda Horrigan

James Hope

Clifford Hendel

Daniel Hochstrasser

Christopher Harris QC

Richard Happ

Claudia Benavides Galvis

Grant Hanessian

Beata Gessel Kalinowska vel Kalisz

Pierre-Yves Gunter

Ulrike Gantenberg