Pierre Tercier

Peter & Kim

Geneva www.peterandkim.com

bureau@tercier.net Tel: +41 26 425 48 48

Biography

Professor Pierre Tercier is an emeritus professor of the University of Fribourg, the honorary president of the ICC International Court of Arbitration, and an international arbitrator with extensive experience in international arbitration, having served, mainly as president, in almost 200 international arbitrations under various rules (eg, ICC, ICSID, LCIA, SIAC, CRCICA, SCC, UNCITRAL, etc) covering various sectors. He has recently joined Peter & Kim (Geneva) as a senior counsel.

What do you enjoy most about working in arbitration?

There are many things about arbitration that I enjoy; otherwise, I would certainly not have continued working after my retirement from university! Arbitration gives me an opportunity to deal with challenging and interesting cases, legally as well as factually, to encounter actors of very different cultural backgrounds, and to meet highly interesting individuals.

On what types of interesting matters have you worked on recently?

With the privilege of age, I am involved in rather important cases, not only in terms of value, but also political relevance. These imply, more often than not, complexity and difficult matters that I have to deal with, mostly as presiding arbitrator. Some cases raise procedural issues, such as illegally obtained evidence, the requirement of special consent to the application of an investment treaty, some delicate and urgent provisional measures. The merits of investment cases may give rise to the issues of compensation for the interruption of an investment due to a political situation or to poor handling of a crisis, termination of concession by the state for various reasons (sometimes in connection with environmental requirements), alleged illegality of the original funds used for investment, or corruption. I cannot single out one decision, but many of the cases that I have been involved in are publicly available and speak for themselves.

What is the key to practising successfully across multiple arbitration institutions, as well as in ad hoc proceedings?

In my view, the essence of arbitration is, as such, independent of the presence of an institution. Arbitrators have the power and the responsibility to decide the case, the duty to do so correctly and according to their belief. I am, of course, convinced that institutions do play a role in facilitating and, if possible, accelerating proceedings, in particular, at the launch of the proceedings, with the control of the arbitrators, with the control of the financial side, and other administrative assistance. The key for an arbitrator is to be comfortable with making decisions with or without the support of an institution across a variety of industries, cultures and time zones.

What would be the advantages and challenges of developing international accreditation procedures for arbitral institutions based on common standards?

It is evident that arbitration is nowadays an extraordinary development and that the system of arbitration tends to substitute state courts. Although there are strict rules for the appointment of judges, there are no special requirements for the appointment of arbitrators, except for the requirement of independence. Whatever conception of arbitration one adopts, arbitrators participate at the same level in the exercise of justice, one of the most difficult tasks in society. I am convinced that some development and improvements are necessary in this respect. Accreditation may be a good system, as far as the independence of the accrediting institution is guaranteed and there still exists the possibility to choose arbitrators outside the list.

To what extent should more be done to improve the transparency of arbitration proceedings?

All surveys show that confidentiality remains one of the key advantages of arbitration. This should not be ignored. Otherwise, a risk exists that the business world will try to find other ways to solve their disputes, probably more dangerous. This being said, there is a need for more transparency in two respects. First, arbitration is developing a focus on real transnational law and decisions must therefore be made public, without necessarily revealing the details of the case (in particular the parties’ names). There is also a need for more transparency in cases where states are involved and where a certain overview or control must be exercised.

If you could implement one reform in international arbitration, what would it be?

There are certainly some possibilities for improvement, and in particular I am still concerned by the question of the increasing cost of arbitration, not only for the proceedings as such, but also for the legal fees of counsel. Arbitration is a private activity, and therefore justifies a price, but this price should not impede access to justice. There is a lot to be done in this sense, I believe, mainly, of course, for rather small cases that may not have access to third-party funding, for example.

How does Peter & Kim distinguish itself from the competition?

I joined Peter & Kim for this final part of my professional career because I found that it perfectly corresponds to my convictions and expectations: a law firm that is not too big, that is specialised in arbitration, and that is internationally well developed and recognised. Importantly for me, there are good personal contacts between all members of the firm, and I can contribute the wealth of my knowledge to all members of the team.

What advice would you give to younger lawyers hoping to one day be in your position?

It is a question that I have to answer regularly, because of my involvement in the education of young arbitrators. My answer is: good legal education, mastering many languages, and not only English, readiness to accept, tolerate and understand different cultures, some experience in arbitration proceedings as secretary or employee of an institution, visibility through presence at events and possible publications, overall strong personality, and the ability to generate confidence. It is one of the main responsibilities of our generation to educate young lawyers and to assist them in becoming arbitrators. Our community is not a closed one.

WWL says: Pierre Tercier is highlighted as “a towering figure of Swiss arbitration”, with peers commending him as “one of the very best in the field” and “an incredibly balanced and fair arbitrator”.