Richard Happ
Office:
Gänsemarkt 45
20354
City:
Hamburg
Country:
Germany
Tel:
+49 40 18067 12766
Fax:
+49 40 18067 110

Questions and Answers:

Who's Who Legal Thought Leaders - Arbitration

Richard is a partner in Luther’s complex disputes group. He has acted as counsel and arbitrator in numerous disputes under national and international rules, covering a wide variety of issues. He is particularly well known for his expertise in investment disputes as well as energy-related work. He has authored or co-authored more than 40 publications, including two volumes of the Digest of ICSID Awards (OUP) as well as a commentary on the ICSID Arbitration Rules.

DESCRIBE YOUR CAREER TO DATE.

It has been a mixture of 95 per cent hard work and 5 per cent (necessary) luck. I have the enormous privilege to work in an area of law (investment protection law), which I wrote my doctoral thesis about and which I have found fascinating since participating as a young student in the 1992 Jessup Moot Court.

WHY DID YOU DECIDE TO SPECIALISE IN DISPUTE RESOLUTION?

I always preferred writing briefs and arguing cases over drafting contracts. And I might have watched too many episodes of LA Law while in law school.

HOW HAS THE ROLE OF ARBITRAL INSTITUTIONS EVOLVED OVER THE COURSE OF YOUR CAREER?

Over the past 15 years, institutional arbitration rules have become more and more complex, and institutions have been given more and more powers. There are good reasons for those changes and powers granted. In combination, however, they slowly transformed the role of the arbitral institution from being an assistant to the arbitral tribunal to being a supervisor of the arbitral tribunal. This limits the freedom of parties and arbitrators. In the long run, it bears the risk of undermining the very foundations of arbitration.

HOW DOES THE USE AND ABUSE OF DUE PROCESS RIGHTS AFFECT PROCEEDINGS?

Whether there is an abuse of due process rights, of course, lies in the eye of the beholder. However, tribunals sometimes seem to lack the will to issue robust case management orders to avoid due process complaints by a party. This prolongs the proceedings, makes them more expensive and might frustrate at least one of the parties.

TO WHAT EXTENT HAS EUROPEAN UNION INTERVENTION INFLUENCED THE PRACTICE OF INVESTMENT TREATY ARBITRATION?

The European Union’s activities, in particular, the EU Commission’s attack on intra-EU investment arbitration, has put the practice of investment arbitration in general under intense political pressure. This is an unfortunate development, as the EU failed to offer investors a suitable alternative legal remedy. As a separate matter, the EU’s plans to establish a multilateral investment court so far suffers from the fact that it rather appears to be tailored to appease critics of arbitration than to provide a solid dispute settlement mechanism. I hope this will be balanced out during the upcoming debates.

WHAT IMPACT HAS THE INCREASING USE OF DOCUMENT PRODUCTION REQUESTS HAD ON YOUR PRACTICE, BOTH AS COUNSEL AND AS ARBITRATOR?

Document production is an essential part of the due process rights of parties in international disputes. However, document production requests are sometimes very extensive, fail to comply with the IBA requirements and very seldom produce a “smoking gun”. Abusive requests increase the costs of arbitration proceedings without good reason, generally cause a delay and make life difficult for the parties and tribunal. Tribunals should sanction such misuse when deciding about costs.

ARE THERE ANY PARTICULAR CHALLENGES PRESENTED BY ENERGY SECTOR DISPUTES?

Energy sector disputes are usually very complex, often involving multiple parties in different countries, including sovereign parties, and difficult technical issues. This is beyond what state courts can offer. Modern arbitration rules, however, enable tribunals to deal with these challenges.

HOW DO YOU SEE THE FIELD OF INTERNATIONAL ARBITRATION DEVELOPING OVER THE NEXT FIVE YEARS?

It will remain strong, as there is no alternative, yet. While more and more countries start to offer “international courts” (using English as their procedural language), there is little experience with them and the Hague Convention on Choice of Courts has not yet the international scope to allow courts to compete with arbitration. Arbitral institutions have modernised their rules to ensure cost-efficient and timely proceedings. If parties and tribunals manage to apply these rules as intended, there seems little that can impair further growth.

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