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.

How has the relationship between arbitrators and parties developed over 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.

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

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.

In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation?

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.

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 of determinative evidence. How do you manage document production in your arbitrations?

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 .

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

Third-party funding will have an important role in fostering ESG principles in arbitration. Funders will need to resolve the conflict between complying with ESG on the one hand and obtaining necessary returns on the other hand.

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”