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.

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.

You have occupied many roles in the arbitration space – to what extent do you feel that having a broad range of experience has enhanced your practice?

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 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? If so, what changes are you noticing?

The statistics of the different arbitral institutions show that the number of cases involving third-party funding is generally 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.

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 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.