Moritz Keller

Clifford Chance

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 energy, infrastructure and banking. 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.

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?

Arbitrators with specialist knowledge in the subject matter of the dispute at hand are generally to be welcomed. The dispute is likely to be settled far more efficiently if the adjudicators can really grasp the issues, whether these relate to, for example, energy markets, insurance, mining, or financial institutions. However, together with any such specialism it is important to still maintain an understanding of the law (including public international law) and procedure. In a fast-moving environment with many evolving issues (reforms to arbitral process and new approaches to investment protection to name but two), arbitrators will continue to need more general knowledge if they are to discharge their duties in the best possible way.

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

Technologies are evolving quickly, especially in light of the pandemic, and this has led to trends towards e.g. exhibit administration software and tools for remote hearings. However, it is not only tribunals who are becoming more sophisticated. Such changes are also being driven by institutional reform (in the form of new arbitral rules) and party preferences.

Many arbitral awards are starting to end up back in court for enforcement proceedings. Does arbitration have an enforcement issue, and how could this be addressed if so?

The approach of the EU to investment treaty arbitration has certainly had an impact on enforcement issues in intraEU cases. Despite the EU’s moves to curb intra-EU arbitration cases from proceeding, most noteworthily by way of the Achmea ruling, more than 50 tribunals have found that they have jurisdiction in intra-EU cases. In response, we may see claimants taking steps to circumvent the EU’s approach, for example by seeking to rely on non-intra-EU treaties and/or where possible, seating proceedings outside the EU.

How big is the issue of geographic exclusion in arbitration (i.e. where small states don’t have the infrastructure to participate effectively in arbitration proceedings)? How could this be effectively addressed?

This is a theme that is on the table in a number of places. For example, UNCITRAL is considering the establishment of a multilateral advisory centre, intended to benefit smaller (as well as developing) countries. There is also the reverse issue of small companies which are deterred from arbitration for similar reasons. In this regard, there are trends in new agreements to facilitate their access to arbitration (for example the procedural provisions aimed at SMEs in CETA).

To what extent is arbitral discretion limited by due process?

Commentators have referred to something called “due process paranoia”, whereby a tribunal is perceived to be too deferential to the purported rights of a party. There needs to be a proper balance between (i) acting fairly, thus producing an award that does not contain such due process defects so as to be unenforceable, and (ii) adhering to duties to conduct the proceedings in an expeditious and/or cost-effective manner. Sources report a trend of arbitration practitioners being involved when contracts are drafted. How does this benefit parties in a contract?

If contracts contain well-drafted arbitration agreements, in the event that there is a dispute, the parties do not end up disputing the parameters of the process that is to be followed. Involving an arbitration practitioner in the drafting of key contracts can therefore potentially save valuable time and costs further down the line.

What do you see as the “big issues” in dispute resolution in the coming months and how do you see your practice evolving?

Clients are facing multiple challenges in the form of the covid-19 pandemic, climate change and now also the war in Ukraine, each of which are contributing to ongoing uncertainty and a lack of foreseeability and impacting commercial activity. The resulting claims for damage and loss require types of support and advice that are the core strengths of our practice – whether state court litigation, domestic arbitration or international arbitration.

We expect to see a further increase in our caseload as our clients continue to come to us not only for advice and representation in complex, cross-border commercial and treaty disputes, but also for support with the novel issues of the day, whether on climate change-related questions, on matters relating to sanctions or on issues arising out of the pandemic. We look forward to continuing to guide our clients safely through this new terrain.

WWL says: Moritz Keller is “a very smart lawyer”, remark sources. They applaud his “high-quality work” in international arbitration, where they add he has “a lot of experience”.