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Albert Jan van den Berg
Office:
Avenue Louise 480/9
1050
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Brussels
Country:
Belgium
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+32 2 290 3913

Questions and Answers:

Who's Who Legal Thought Leaders

Professor Albert Jan van den Berg is a partner at Hanotiau & van den Berg (Brussels). He is a visiting professor at Georgetown University Law Center, Washington, DC; and Tsinghua University Law School, Beijing. He is emeritus professor of law at Erasmus University, Rotterdam. He is presiding and party-appointed arbitrator in numerous international commercial and investment arbitrations. He was president of the International Council for Commercial Arbitration; president and secretary-general of the Netherlands Arbitration Institute; and vice president of the London Court of International Arbitration.

WHAT ATTRACTED YOU TO A CAREER IN LAW AND TO FOCUS IN INTERNATIONAL ARBITRATION?

I was slated to take over my father’s successful trading business, which he started. Midway, I started to like law, particularly the international dimension, inspired by my comparative law professor, Kisch. I informed my father that I wanted to be successful as he was but from my own efforts. Although he was disappointed, he supported my decision. Kisch then directed me to David, a French professor of international commercial arbitration, who became my thesis director for my first doctorate in law. David then directed me to Pieter Sanders, who not only supervised my doctoral thesis on the New York Convention, but became my role model. I became Piet Sanders’s private assistant, editing the yearbook, and worked at TMC Asser Institute, setting up the international commercial arbitration department. 

WHAT QUALITIES WOULD YOU RECOMMEND THAT ASPIRING ARBITRATION PRACTITIONERS HONE?

An arbitrator needs to have a mix of different skills. The best way to learn these is to be a litigator. One must also know several languages (especially English, French and Spanish); know and respect different cultures; and have management and diplomacy skills, in addition to patience and endurance. It also helps if Mother Nature gave you some skills – on my part, a slight photographic memory, a liking for numbers and insatiable curiosity. Since a high degree of professionalism is required (this is a 24/7 job), staying in good health and realising that this is a service industry are important.

BEING ONE OF THE FOUNDERS OF WHAT IS CONSIDERED AS THE MOST SUCCESSFUL ARBITRATION BOUTIQUE, WHAT PRACTICES WOULD YOU RECOMMEND?

I manage by exception. I give as much responsibility as my team can carry but I also make myself always accessible for the little questions. I emphasise keeping the human factor (paying attention to personal circumstances, including health; personal interaction, hence no internal emails or phone calls – walk to your colleague instead; fruit salads rather than junk food; exercise). When my team comes to work, it should be that they are looking forward to being there and doing the work. If not, it is time to look for another job.

BEING WELL KNOWN AS AN EXPERT ON THE NEW YORK CONVENTION, AND WITH THE CONVENTION BECOMING 60 YEARS OLD, HOW DO YOU ASSESS THE PAST DECADES OF IMPLEMENTATION AND WHAT IS THE FUTURE FOR THE CONVENTION?

Having monitored the implementation of the convention through my editing of the Yearbook since 1976 and maintaining the website www.newyorkconvention.org (there are now more than 2,000 court decisions from 70 countries), interpretation and application have discrepancies and have evolved even beyond the ordinary meaning of the text. There is a continuous need to harmonise these interpretations – the very same reason for my doctoral thesis published in 1981, which is why a new edition of my book will be coming out soon.

I foresee a new treaty in the future. And in the meantime, diverging interpretations will result in an increase in refusals of enforcement.

DIVERSITY IN INTERNATIONAL ARBITRATION HAS RECEIVED A CONSIDERABLE AMOUNT OF ATTENTION. IN YOUR OPINION, WHAT CAN BE DONE TO ACHIEVE GREATER DIVERSITY IN ARBITRAL TRIBUNALS?

I have always practised what I preach: most of my team are female arbitration lawyers. When drawing up lists of prospective arbitrators, whether for clients, for parties or as a co-arbitrator, I always try to ensure that the names of female arbitrators are put forward. There are so many qualified female arbitrators that choosing among them is actually difficult!

Who's Who Legal Thought Leaders - Arbitration

Professor Albert Jan van den Berg (Netherlands) is the immediate past president of the International Council for Commercial Arbitration (ICCA; 2014–2016) and a partner of Hanotiau & van den Berg (Brussels, Belgium). He is a visiting professor at Georgetown University Law Center, Washington DC; and Tsinghua University, Beijing. He is also emeritus professor at Erasmus University, Rotterdam. Professor van den Berg is presiding and party-appointed arbitrator in numerous international commercial and investment arbitrations. He also acts as counsel in international commercial arbitrations. He is a former president of the Netherlands Arbitration Institute and vice-president of the London Court of International Arbitration.

What inspired you to focus your practice on international arbitration?

My mentor, the late Professor Pieter Sanders.

What skills make a successful arbitrator?

I believe that a successful arbitrator requires a mix of different skills. Among the most important ones are: (a) awareness that 80 per cent is facts and 20 per cent is law in most cases; (b) awareness that you are in a service industry where you have to resolve a dispute between parties before you; (c) knowledge of several languages (in particular English, French and Spanish); (d) not to be afraid of numbers; (e) knowledge of and respect for different cultures; (f) management, diplomacy, patience and endurance; and (g) permanent curiosity with respect to human, social, historical, political and technical matters.

How can practitioners who desire to sit as arbitrators take steps to mitigate conflicts that may bar their appointment?

As a general matter, I recommend founding or joining a boutique law firm. In case of investment arbitration: do not act as counsel so as to avoid “double hatting”.

What advice would you give to young lawyers looking to sit as arbitrators in the future?

Select carefully your role models.

What has been your proudest moment in practice?

When the Dutch court set aside the US$50 billion awards in Yukos on 20 April 2016.

International investment arbitration is now, more than ever, playing an important role in ongoing international treaty negotiations such as the CETA and TPP. What effects do you think that this is having on the practice?

I think there is a strong future for international investment arbitration because it is an effective dispute settlement mechanism that addresses concrete problems that otherwise might not be remedied.

The legitimacy of investor-state arbitration is being heavily scrutinised. How has this scrutiny affected the field and what can be done to offset these criticisms?

There appears to be much misunderstanding about investor-state dispute settlement. One of the obvious measures is more transparency.

Several firms have taken steps to strengthen their capabilities in international arbitration. Is this having any impact on the field?

I consider this a welcome development. It contributes to more diversity in international arbitration.

Biography:

Who's Who Legal Arbitration: Lawyers

Albert Jan van den Berg (1949, Amsterdam, the Netherlands) is a founding partner in Hanotiau & van den Berg (Brussels, Belgium). He is and has been sole, presiding and party-appointed arbitrator in numerous international arbitrations (ad hoc, AAA/ICDR, CRCICA, DIAC, DRCAFTA, ECT, ICC, ICSID, LCIA, NAFTA, NAI, OHADA, PCA, SCC, SIAC, and UNCITRAL), relating to, inter alia, airports, aviation, banking, broadcasting, construction, defence projects, distributorship, electricity and gas supply, fashion, futures and options, gambling, information technology, insurance and reinsurance, investments, joint ventures, licensing, media, mining, nuclear power, oil and gas, pharmaceuticals, post-M&A, post-privatisation, professional associations, real estate, sales, satellites, shale gas, solar energy, sports, telecom and turnkey projects. He frequently acts as counsel in international commercial arbitration.

Professor van den Berg is on many panels of arbitrators, including: American Arbitration Association (AAA), New York; Arbitral Centre of the Federal Economic Chamber, Vienna; Arbitral Tribunal for Football, World Cup Division for the 2002 FIFA World Cup, Geneva; Centre for Arbitration and Mediation, Chamber of Commerce Brazil-Canada; China International Economic and Trade Arbitration Commission (CIETAC), Beijing; Hong Kong International Arbitration Centre (HKIAC); Hungarian Chamber of Commerce and Industry; Indonesian Board of National Arbitration (BANI), Jakarta; International Centre for the Settlement of Investment Disputes (ICSID), Washington; Kuala Lumpur Regional Centre for Arbitration (KLRCA); Netherlands Arbitration Institute (NAI); Singapore International Arbitration Centre (SIAC). He is an arbitrator on the Arbitral Tribunal concerning the Bank for International Settlements (Hague Treaty of 20 January 1930).

Professor van den Berg was president of the International Council for Commercial Arbitration (ICCA) and continues to be its honorary president. He is also former president and secretary-general of the NAI and former vice-president of the London Court of International Arbitration (LCIA). He is a member of the CIETAC international advisory board; Commission on International Arbitration and ADR, International Chamber of Commerce (ICC), Paris; LCIA; international advisory board, HKIAC; council, Australian Centre for International Commercial Arbitration; advisory board, University of Geneva’s Master of Laws in International Dispute Settlement (MIDS);  board of trustees, Institute of International Commercial Law, Pace University School of Law; and executive committee, Asian Academy of International Law. He is professor emeritus of law (arbitration chair) at Erasmus University, Rotterdam and is currently a visiting professor at Georgetown University Law Centre, Washington, DC, and Tsinghua University Law School, Beijing and member of the faculty of the MIDS, Geneva. He is acting general editor of the Yearbook: Commercial Arbitration. He has also extensively published and lectured on international arbitration. He founded and maintains the website www.newyorkconvention.org. His legal education includes law degrees from the University of Amsterdam (1973), University of Aix-en-Provence (1974) and New York University (1975), as well as PhD degrees from the University of Aix-en-Provence (1977) and Erasmus University (1981).

Professor van den Berg was named Arbitration Lawyer of the Year by Who's Who Legal in 2006, 2011, and 2017 and the Best Prepared and Most Responsive Arbitrator by Global Arbitration Review in 2013.

WWL says: Albert Jan van den Berg stands out as “a top arbitration specialist” and is highly respected for his brilliant work across a range of sectors, including IT, pharmaceuticals and mining.

This biography is an extract from Who's Who Legal: Arbitration which can be purchased from our Shop.

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