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 did you find most challenging about entering the world of arbitration?
When I entered the world of arbitration, even more so than today, it was a world populated almost exclusively by wise old men. It was a struggle to be constantly the youngest among these distinguished gentlemen.
What did you enjoy most about establishing your own firm?
I most enjoyed putting together my mini-United Nations team of lawyers. We work hard but we also have fun in the process.
How does your approach differ when acting as sole, presiding and party-appointed arbitrator?
My approach to a case is the same regardless of who appointed me. The difference is merely one of style and professional courtesy, in terms of the dynamics with my colleagues on the tribunal. Regardless of where you sit on the tribunal, you have to dive in and get a grip on the procedural and substantive aspects.
You have considerable experience handling disputes across a range of sectors. To what extent is sector-specific knowledge on the part of the arbitrator important?
Sector-specific knowledge is an important background to the legal and factual issues in dispute. In certain sectors, and for certain types of disputes (for example, gas pricing), it is crucial to have that understanding. However, this very much depends on the case. Other disputes may be focused on the interpretation of a contractual provision, and the parties are perfectly able to brief you on the relevant considerations for that specific sector. I have had the privilege of handling disputes across a range of sectors and each time it is a joy to discover a new set of terminology, market forces and expertise. I don’t think you necessarily have to be an expert in the sector going into every case.
What impact is the generational shift in arbitration practitioners having on the landscape of the legal market?
The landscape of the legal market is more diverse, innovative and competitive than ever. Since there is such a strong interest in international arbitration from younger practitioners, competition is fierce and candidates must be extremely well prepared in today’s market.
We are also seeing the arbitration sphere open into new markets, and the new generation is bringing greater diversity of all kinds to existing ones. This brings new opportunities for the development of arbitration as a living method of dispute resolution.
How does your work as a writer and professor enhance your work in private practice?
Writing and teaching is extremely valuable from a practitioner’s perspective, because it both sharpens and broadens your vision. Writing forces me to take a step back and reflect with a critical eye on developments that I may not otherwise have cause to do as a practitioner. As a professor, I also learn so much from my students from across the globe, who bring me new ideas and ways of thinking, and compel me to keep my views relevant. Both of these feed into my work as a practitioner because good legal practice requires me to be creative, stay up to date, keep a broader perspective, and be able to communicate persuasively.
As founding partner of the firm, what are your priorities regarding its development over the next few years?
Over the next years I have no doubt that Hanotiau & van den Berg will continue to flourish. My priority is to maintain the excellence that we demand of ourselves in order to continue providing outstanding services to clients and parties in arbitration proceedings.
What is the best piece of career advice you have received?
My father always said, first earn it, then spend it. This, and also: focus on your languages!
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.
DESCRIBE YOUR CAREER TO DATE.
It all started when I became the private assistant to Professor Pieter Sanders, who sparked my passion for the New York Convention, which became the topic of my second doctoral thesis. I worked in the Netherlands and in Riyadh, Saudi Arabia (1982), as counsel and arbitrator, before founding Hanotiau & van den Berg in Brussels in 2001. At that time a boutique practice was still an unusual setup in the arbitration field, and to establish ourselves outside the arbitration hubs of London and Paris was somewhat daring. However, the firm has been a great success and I have never looked back. My current practice consists of my various appointments as arbitrator in both investment treaty cases and commercial matters, as well as acting as counsel in court proceedings regarding the setting aside and enforcement of arbitral awards. In this respect, successfully obtaining the set-aside of the Yukos Awards as lead counsel for the Russian Federation before the Hague District Court in 2016 was certainly one of the highlights. I also actively continue teaching, including regular courses at MIDS in Geneva; Georgetown University in Washington, DC; and Tsinghua University in Beijing.
WHAT DO YOU ENJOY MOST ABOUT WORKING IN ARBITRATION?
The unique intellectual challenge of each new case is a real thrill. There’s nothing more satisfying than immersing myself in the facts of a matter, in order to get a handle on what really happened.
Arbitration also allows me to become intimately acquainted with different industries, nationalities, laws and customs in the context of a particular dispute. Another joy is working with, teaching and learning from wonderful practitioners and students from all over the world.
HOW HAS THE MARKET CHANGED SINCE YOU STARTED YOUR CAREER?
In the course of my career, arbitration has become far more widespread as a method of dispute resolution. As a result, the market is more competitive, diverse and truly international. In these fast-moving times, it is more important than ever to keep abreast of new developments and technology.
Graduates now come equipped with specialised master’s degrees and set out in their careers with a strong background in the field. I find the new generation of practitioners to be highly engaged, with curious minds and a lot of creativity.
I also find that there is more focus on the procedural aspects of an arbitration, and corresponding regulation of those aspects by arbitral institutions. The emphasis on procedure also has an impact on the selection of arbitrators, since arbitrators should have strong case management skills.
HOW ARE DIFFERING INTERPRETATIONS AND APPLICATIONS OF THE NEW YORK CONVENTION AFFECTING THE ARBITRATION FIELD?
I find inconsistent interpretations of the New York Convention troubling. This lack of harmonisation renders arbitration more unpredictable and damages its usefulness as a mode of dispute resolution. All the more reason, in my view, for a revised convention.
HOW DOES HANOTIAU & VAN DEN BERG DISTINGUISH ITSELF FROM THE COMPETITION?
At HVDB we are a mini United Nations. We are one of the most diverse firms, with
at least 14 different nationalities among around 23 lawyers. This diversity is our core strength, as it brings perspectives from many different legal backgrounds. We encourage independent thinking, and we are not satisfied with anything short of excellence and accuracy.
HOW DO YOU SEE YOUR PRACTICE DEVELOPING OVER THE NEXT FIVE YEARS?
The next five years will bring many interesting developments in Europe and internationally, which makes it difficult to predict. That said, I envisage an increasing focus on commercial arbitration.
WHAT ADVICE WOULD YOU GIVE TO SOMEONE LOOKING TO START THEIR OWN FIRM?
Develop a strong base in commercial arbitration. Be bold, and don’t be afraid to show up with a small team. Arbitrators are not impressed by the number of partners that turn up at the hearing.
LOOKING BACK OVER YOUR CAREER, WHAT IS THE MOST INTERESTING MATTER YOU HAVE BEEN A PART OF?
While every matter is interesting in one way or another, I would have to say that the most stimulating of all is my current representation of the Russian Federation before the Dutch courts related to the set-aside of the Yukos awards. Aside from being all-encompassing in terms of legal complexity and factual nuance, this case emphasises the need for courts at the seat to take their supervisory responsibilities seriously, and not to be afraid to undo bad awards.
Albert Jan van den Berg is identified as “a very big name in international arbitration” who is “very clever and experienced” acting as sole and party-appointed arbitrator in scores of disputes.
Albert Jan van den Berg (1949, Amsterdam, The Netherlands) is a founding partner of Hanotiau & van den Berg (Brussels, Belgium). He is and has been sole, presiding and party-appointed arbitrator in numerous international commercial and investment arbitrations (ad hoc, AAA/ICDR, CRCICA, DIAC, DRCAFTA, ECT, ICC, ICSID, LCIA, NAFTA, NAI, OHADA, PCA, SCAI, 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 energy, oil and gas, pharmaceuticals, post-M&A, post-privatisation, professional associations, real estate, sales, satellites, shale gas, solar energy, sports, telecoms, tunnelling, and turnkey projects. He also acts as counsel in international commercial arbitration.
Professor van den Berg is on many panels of arbitrators, including the American Arbitration Association (AAA); the Arbitral Centre of the Federal Economic Chamber; the Arbitral Tribunal for Football, World Cup Division for the 2002 FIFA World Cup, Geneva; the Asian International Arbitration Centre; the Centre for Arbitration and Mediation, Chamber of Commerce Brazil-Canada; the Centre for Arbitration and Conciliation, Bogotá Chamber of Commerce; the China International Economic and Trade Arbitration Commission (CIETAC); the CPR International Institute for Conflict Prevention and Resolution; the Hong Kong International Arbitration Centre (HKIAC); the Hungarian Chamber of Commerce and Industry; the Indonesian Board of National Arbitration (BANI); the International Centre for the Settlement of Investment Disputes (ICSID); the Netherlands Arbitration Institute (NAI); and the 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 is honorary president of the International Council for Commercial Arbitration (ICCA), having served as its president in 2014–2016. He is also honorary president of the NAI, having served as its president (2003–2010) and secretary general (1980–1988). He is former vice president of the London Court of International Arbitration (LCIA). He is a member of the international commercial expert committee of the China International Commercial Court of the Supreme People’s Court; CIETAC’s international advisory board; the Commission on International Arbitration and ADR at the International Chamber of Commerce (ICC); LCIA; the HKIAC international advisory board and nominations committee; the Australian Centre for International Commercial Arbitration council; the advisory board for the University of Geneva’s Master of Laws in international dispute settlement (MIDS); the board of trustees of the Institute of International Commercial Law at Pace University School of Law; and the executive committee of the Asian Academy of International Law.
He is professor emeritus of law (arbitration chair) at Erasmus University, Rotterdam. He is currently a visiting professor at Georgetown University Law Centre, Washington, DC; Tsinghua University Law School, Beijing; and University of Miami School of Law. He is a member of the faculty of the MIDS. He was general editor of ICCA publications including the Yearbook: Commercial Arbitration (1986-2018). 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.