Marnix Leijten
Office:
Claude Debussylaan 80
1082 MD
City:
Amsterdam
Country:
Netherlands
Tel:
+31 20 577 1609
Fax:
+31 20 577 1775

Questions and Answers:

Who's Who Legal Thought Leaders - Arbitration

Marnix Leijten is head of the arbitration practice at De Brauw in Amsterdam. He is vice president of the ICC’s International Court of Arbitration and co-chairs the ICC Commission’s task force on emergency arbitration. Marnix has acted on dozens of commercial and investment arbitrations, specifically in energy, construction, technology and M&A disputes. Marnix also advises clients on their global disputes, setting strategy and instructing counsel. Marnix sits as arbitrator and frequently speaks on cross-border litigation and arbitration. Marnix is co-author of Kluwer Law International’s Arbitration in the Netherlands (2018).

WHAT ATTRACTED YOU TO A CAREER IN INTERNATIONAL ARBITRATION?

Arbitration is about stories for me. The diversity of problems, cultures and people I find fascinating. With every case, a world opens up to dive into and to get familiar with. The interaction of law, economics, science and politics that is often found in arbitration is irresistible. In civil law countries, litigation is often more heavily focused on the law than on finding the facts of a case. Arbitration brings out the complex reality that the law is only a small piece of the puzzle.

YOU ARE WELL KNOWN FOR YOUR WORK IN ENERGY AND POST-M&A DISPUTES. TO WHAT EXTENT IS INDUSTRY SPECIALISATION ON THE PART OF THE ARBITRATOR IMPORTANT?

Like counsel, arbitrators must be truly interested in gaining an understanding of what the disputed contract or investment is about. That, first and foremost, takes a lot of time and curiosity even in areas where the arbitrator or counsel has handled many disputes. Specialisation helps to quickly gain understanding but is also deceptive, as nothing can replace the effort and curiosity required to get to know the details of a specific dispute. Disputes zoom in on a relatively detailed element of a contract or investment. Thus, disputes on similar contracts or investments end up being wildly different.

WHAT IS DRIVING THE INCREASED POPULARITY OF COMMERCIAL ARBITRATION AS A MEANS OF RESOLVING DISPUTES?

The growth of commercial arbitration has been driven by globalisation and the increased complexity of contracts. There is no viable alternative to arbitration for the vast majority of parties entering into large cross-border contracts. In that sense, commercial arbitration is in a luxury position and will continue to grow if global trade continues to grow. The key issue to be vigilant about is the true impartiality of arbitral tribunals. While the perceived lack of impartiality of the other party’s national courts causes arbitration to be the dispute resolution method of choice for international trade, arbitration’s growth will be threatened where commercial ambitions of arbitrators affect their impartiality or independence.

INVESTOR-STATE ARBITRATION HAS COME UNDER INCREASED SCRUTINY OVER ITS OPAQUENESS IN RECENT YEARS. AS VICE PRESIDENT OF THE ICC’S INTERNATIONAL COURT OF ARBITRATION, WHAT DO YOU CAN BE DONE TO RECTIFY THIS?

Transparency is the buzzword, and rightly so. Not only on the existence of cases, but also on their content, the arbitrators and the counsel involved and their earlier affiliations. In addition, my experience is that careful scrutiny of draft investment arbitration awards such as at the ICC Court is of significant importance to increase quality and trust. Finally, I do believe it is problematic that many arbitrators are known to be state- or investor-friendly and act as such. True independence and impartiality of arbitrators are a must for arbitration going forward.

AS INTERNATIONAL ARBITRATION HAS DEVELOPED, SOME SOURCES HAVE NOTED THE INCREASED COMPLEXITY THIS HAS BROUGHT TO PROCEEDINGS. SHOULD ARBITRATORS LOOK TO SIMPLIFY PROCEEDINGS WHERE POSSIBLE IN LIGHT OF THIS? IF SO, HOW?

Absolutely, due process paranoia is a problem. Proceedings get longer, more complex and costlier as a result. For lower-value disputes, arbitration is becoming too expensive and cumbersome. While developing pre-set procedures for expedited arbitration is an answer, arbitration’s core asset is its flexibility. Arbitrators and counsel have a responsibility towards the users to simplify and shorten the process where possible. Courts hardly ever set aside awards for due process violations. There is no one-size-fits-all arbitration. Standardisation of the procedure causes proceedings to gravitate towards the complex and lengthy and is, therefore, a threat.

WHAT, IN YOUR OPINION, ARE THE BENEFITS AND DRAWBACKS OF HAVING A WIDE VARIETY OF ARBITRAL INSTITUTIONS AVAILABLE TO PRACTITIONERS AND CLIENTS?

Choice is good. It causes the various institutions to continuously develop their offering in line with the needs of their users. The pace of change in rules and processes within the leading institutions has strongly accelerated over the last few years under the influence of the variety of institutions and the competition between them. At the same time, each arbitral institution has a great responsibility to be transparent and honest about what it can and cannot offer in terms of quality control of the arbitration and award, administration and management of the process, experience, geographical coverage and arbitrator selection. A lack of transparency in this respect will undermine the users’ trust in the longer term.

WHAT IS YOUR PROUDEST ACHIEVEMENT TO DATE?

I am proud to have helped build from scratch an international arbitration practice at De Brauw with a young and increasingly international team of highly talented people.

WHAT ADVICE WOULD YOU GIVE TO A YOUNG PRACTITIONER LOOKING TO START A CAREER IN INTERNATIONAL ARBITRATION?

Have fun and do not take yourself all too seriously!

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