Thought Leaders: Arbitration 2017
Alexis is president of the ICC International Court of Arbitration and past chair of the IBA arbitration committee. He has participated as counsel or arbitrator in more than 230 arbitration proceedings under most international arbitration rules and since 1 May 2015 has established his independent arbitrator practice. He is the author of several books and many articles on international arbitration and private international law. He is fluent in French, English, Spanish and Italian and has good knowledge of Portuguese.
What motivated you to focus your practice on the resolution of disputes through international arbitration?
My practice has always been focused on international litigation and private international law. Arbitration was a natural development.
What has most inspired you as a practitioner?
The first treaty-based investor/state arbitration I chaired was a denial of justice case under the ICC rules. I was impressed by the enormous powers vested upon the tribunal, as we were called to decide upon allegations of bias and corruption at the highest level of the judiciary. While making these decisions I began to understand the amount of humility that is required from international arbitrators in discharging their mandate.
Why did you decide to leave your firm and continue as an independent arbitrator?
I decided to focus my practice on my arbitrator’s work and wanted to avoid possible conflicts of interests.
What do clients look for when appointing an arbitrator?
Someone who will be on top of the case, understands the issues, who will be respected by his colleagues and whose voice will be heard. And above all someone who must be able to exercise fair and independent judgement.
In your opinion, is arbitration still the preferred method of resolving international commercial disputes?
There is no alternative to arbitration in international commerce. As efficient as municipal courts may become, parties to international contracts will always look at a neutral forum and for a flexible procedural framework that can be adapted to the specificities of each case.
What are the biggest challenges facing practitioners in international arbitration at present?
Arbitration has recently been under public scrutiny as never before, and the backlash against investor/state arbitration is a cautionary tale for everyone. The causes of that backlash are not limited to investment arbitration and could well spill over to commercial arbitration if we do not implement policies aimed at fostering transparency and encouraging regional and gender diversity. It is incumbent upon the arbitral community to favour the emergence of a new generation of arbitrators. Institutions also need to ensure that arbitrators’ disclosures are forthcoming, based on the fundamental principle according to which the parties have a legitimate right to be informed of any circumstance that may be relevant in their eyes in order to decide whether to object to an arbitrator’s appointment. Finally, there need to be meaningful ethical rules for counsel in arbitration, in order to ensure a level playing field.
The centrality of transparency in modern societal consciousness has led to some criticising the apparent lack of transparency in arbitral proceedings. Are these criticisms having any effect on your practice in any way?
Transparency has become a fundamental tenet of good governance as well as a general expectation of the public in all sectors of public life and economy. There is no way back and it would be a fundamental mistake to believe that international commercial arbitration will be insulated from this trend. Ensuring more transparency while protecting the legitimate expectations to confidentiality that parties may have in commercial arbitration is therefore one of the important challenges faced by the arbitration community.
Arbitral centres in the east such as Singapore and Hong Kong are flourishing at the moment. Is this having any impact on the number of arbitrations in the more well established seats of international arbitration in the west?
Competition is healthy and it is only fair that venues having actively promoted arbitration see their efforts coming to fruition. The development of arbitral centres like Singapore and Hong Kong strengthens arbitration globally and is for the benefit of all. I hope to see the emergence of more new international arbitration seats in the years to come.