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.

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.

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?

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.

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

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 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 advantages can clients benefit from in hiring a multilingual and/or multicultural arbitrator?

I am perhaps a bit biased on this topic as I am multilingual and multicultural myself. 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

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?

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 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

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”