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.

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 increasingly specialised. How does increased specialisation benefit the arbitration market and what are the potential pitfalls?

Some think that the more specialised the arbitrator, the more efficient they will be and the less likely they are to make 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 disputes, basic scientific and engineering knowledge.

As someone who often speaks on climate change and arbitration, how do you view arbitration’s role in dealing with climate change disputes?

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”