Tilman Niedermaier

CMS Hasche Sigle

Munich cms.law

tilman.niedermaier@cms-hs.com Tel: +49 89 2380 7196

Biography

Tilman Niedermaier represents clients in complex disputes often relating to large-scale projects, M&A transactions and joint ventures, distribution and procurement contracts as well as license and IP agreements in a variety of industry sectors (including automotive, aerospace and defence, energy, infrastructure and transport and sports). He regularly acts as arbitrator. Tilman is a lecturer at the Universities of HalleWittenberg and Munich. He studied at the Universities of Munich, Göttingen, Geneva and Chicago.

My interest in international procedural law, conflict of laws and comparative law led me to look into arbitration during my legal studies and, like many arbitration practitioners, to participate in the Vienna Moot Court. I obtained my first practical insights during an internship in a Genevabased law firm. Since then, the prospect to work on complex contentious matters in an international environment and the active exchange within the international arbitration community encouraged me to pursue a career in arbitration.

What do clients look for in an effective arbitrator?

An arbitrator must be dedicated to get it right in time. This requires the arbitrator to carefully consider the facts and the legal arguments submitted by the parties with an open mind. While the arbitrator must ensure that the parties are treated equally and have a fair opportunity to present their case, it is also the arbitrator’s responsibility to ensure that the proceedings are conducted efficiently. This requires case management skills and the readiness to decide if needed.

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

Arbitration has become more versatile over the last years. Arbitral tribunals are increasingly prepared to adapt the proceedings according to the parties’ expectations. Today, arbitrators often discuss the organisation of the proceedings at an initial case management conference not only with counsel but also with the parties themselves. Mid-stream conferences, in which the arbitral tribunal provide targeted directions after a first exchange of submissions, are also on the rise. By including lists of case management techniques into their rules and publishing guidelines on the organisation of the proceedings and hearings arbitral institutions and associations

What challenges do hybrid hearings present from an impartiality standpoint?

The impact of physical presence in hearings is difficult to measure. However, there is empirical evidence supporting the subjective impression that it may have an impact. While in fully virtual hearings there is a level playing field, provided that both sides have adequate technical equipment and the participants know to use it, the situation is different where some of the participants are present in the hearing room, while others are connected by video-link. The impartiality of the arbitral tribunal is affected if the arbitrators get a personal impression of counsel, witnesses or experts of the one side but a virtual impression of such participants of the other side, and based on the different format of communication give more weight to the pleadings or testimonies of the one side than to the other. Since the content of a message and its medium are two sides of the same coin, arbitral tribunals should discuss the relevance of a personal impression with the parties and their counsel before deciding whether a hybrid set-up is suitable for the particular case.

There has been a lot of activity in Europe regarding infrastructure, with major highway and rail projects expected to impact the market. How effective is arbitration at dealing with such cases at the moment?

Arbitration can be a very effective tool for resolving disputes arising out of infrastructure projects, particularly if compared to litigation. In many jurisdictions, courts struggle with complex large-scale disputes not only due to their workload but also because these disputes often do not fit into the procedural corset. By contrast, arbitration provides for more flexibility. The parties can select the arbitrators based on their experience and availability. Whereas in litigation experts are often appointed and instructed by the court, in arbitration, the parties can work with their experts of choice already before the start of the proceedings. Establishing a procedural calendar with dates for each procedural step at the outset of the proceedings, as is standard in arbitration, contributes to a focused presentation of the facts and arguments by the parties. However, notwithstanding the various advantages of arbitration, the joinder of third parties can still be tricky in arbitration. While modern arbitration rules deal with multi-party and multi-contract arbitration, these mechanisms work properly only if the dispute resolution clauses in the project contracts are aligned.

What are the advantages and disadvantages of having a global practice?

The cases we are working on reflect the business of our clients, which is to a large extent global. Our practice therefore gives us a realistic perspective and understanding of the challenges our clients meet on a daily basis. Looking at the globalisation of international trade, a purely domestic perspective on dispute resolution is incomplete. For my part, I enjoy the challenges of the interplay between different legal systems and cultures. At the same time, digitalisation and the lessons learned from the pandemic, have helped to adjust extensive travelling, which is good for the environment and for family life.

Looking back over your career, what has been your proudest achievement so far?

The most important cases are the ones we are working on and it is always rewarding to receive positive feedback when a case comes to a close, both as counsel and arbitrator.

What advice would you give to someone starting out in arbitration?

Set yourself personal goals and work hard to achieve them. However, keep your eyes open for opportunities and remain flexible to adjust your plans. But most importantly, enjoy the ride.

WWL says: Tilman Niedermaier is highly recommended by peers for his adept handling of complex commercial and investment disputes.