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.

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.

Some practitioners report that, post pandemic, arbitration costs are deterring parties from bringing matters. Is this your experience?

Not really. I have not seen any change in the 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. 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 sailed on such claims?

It’s hard to tell. However, so long as the statute of limitation has not expired we could still see such claims for the next years to come.

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

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.

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 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.

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

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!).

Peers and clients say: “He is simply the best” “A leading arbitration practitioner in France” “He is an excellent academic and arbitrator”