Alexis Mourre is "a star of the arbitration world". One peer says that "under his presidency, the ICC has pushed to a new level in international dispute resolution."
Alexis Mourre is an independent arbitrator. He has been the President of the ICC International Court of Arbitration since 2015. He was Vice President of the Court (2009–2015), Vice President of the ICC Institute of World Business Law (2011–2015), co-chair of the IBA Arbitration Committee (2012–2013), LCIA Court member (2012–2015), and council member of the Milan International Chamber of Arbitration (2006–2014). Alexis has served in more than 260 international arbitrations, both ad hoc and before most international arbitral institutions. He is fluent in French, English, Italian and Spanish, and has a working knowledge of Portuguese.
Your term as president of the ICC comes to an end next year. What do you think has been your greatest achievement in the role?
Leaving a more dynamic, innovative, global, efficient, diverse and transparent institution. I remember that one of the first events to which I was invited to as president of the Court was an interview organised by GAR in Hong Kong, in October 2015, followed by a survey among participants. My interview was conducted by Michael Moser and the survey was about whether the ICC had become a dinosaur. I would like to think that six years thereafter, no one would suggest that the ICC is a dinosaur.
What has the process for your succession to the presidency of the ICC been?
As it has been the case for the election of John Beechey in 2009 and mine in 2015, my successor has been selected by an independent selection committee composed of highly regarded arbitration practitioners. This practice, which is now embedded in Appendix 1 to the 2021 ICC Rules of Arbitration, is a fundamental guarantee of the independence and integrity of the Court. For the first time, this process has also been completely transparent, with the composition of the selection committee’s terms of reference being published on the Court’s website. This unique process has allowed us to select, with Claudia Salomon, a remarkable candidate who promises to be an outstanding president of the Court. I am also very proud that, for the first time in its almost 100 years history, the Court will have a female president.
The ICC has just revised the rules for international commercial arbitration. What are the most important features of this revision?
The new rules focus on efficiency, by mandating tribunals to adopt appropriate measures to ensure effective case management, introducing more flexibility in joinders and consolidations, and giving the power to tribunals to make additional awards on claims that they omitted to decide. They further expand the scope of the opt-out application of the expedited rules, which have since 2017 proved to be extremely successful. Following up on the Court’s covid-19 note, the rules make it clear that tribunals have the power to organise hearings remotely, even in absence of an agreement between the parties. The new rules also ensure a better protection of the parties’ right to be treated equally by granting power to the Court to disregard unconscionable arbitration agreements, and they foster more transparent disclosures by mandating parties to disclose the existence and identity of third-party funders. Still on the front of transparency, the new rules incorporate the Court’s practice on the publication of reasons for its decisions. The new rules also better protect the integrity of the arbitration by granting to tribunals the power to exclude a lately introduced counsel having a conflict of interest with one or more of the arbitrators. Finally, the new rules include some specific provisions applying to investor-state arbitration. Overall, these amendments will allow arbitrators and parties to more efficiently deal with the new challenges that arbitration is facing.
You have a standout career as an arbitrator and counsel. What cases do you enjoy most?
Rendering justice to the parties is an honour and it is the noblest possible role to which a lawyer can aspire. I always thought that sitting as an arbitrator is an immensely gratifying service to the society, however important the complexity of the case or the interests at stake may be. Appearing as an advocate before courts and arbitral tribunals is also something that I always greatly enjoyed in my 33 years-long career at the bar.
How has the digitisation of arbitration proceedings evolved during this time of global pandemic, and do you think the likes of online hearings are here to stay?
Paperless arbitrations are here to stay. Most institutions offer or will soon offer digital platforms for the submission of memorials and documents, and there is no way back to paper submissions. As to hearings, it is safe to say that remote means of communication will become the norm for procedural conferences as well as for hearings which do not involve long examination of witnesses and experts, for urgent hearings such as for provisional measures or emergency arbitration, as well as for expedited arbitrations and summary dispositions. As for longer and more complex hearings, whether to organise them remotely will become a systematic point for discussion in case management conferences. Physical hearings will no longer be the presumption in all cases.
What do you think has been the most successful outcome of the ICC’s drive for diversity in commercial arbitration, and are there areas of improvement going forward?
Certainly, the fact of having achieved gender parity for the Court in 2018, which we will do again for the next term of the Court. We still have a lot of progress to make in increasing the proportion of women in ICC tribunals, however, even if that proportion has doubled since 2015. We also have significant efforts to make in improving the regional diversity of our tribunals. More than 60 per cent of our arbitrators still originate from Western Europe or North America, which is not reflective of the reality of the global arbitration landscape.
Some practitioners note that the growth of regional arbitration centres has been curtailed due to covid-19. Do you agree with this assessment, and what do you think the future holds for regional arbitration centres?
I always said that the growth of robust and reliable regional centres is an asset for the global system of international arbitration, provided that they adopt sound and transparent governance and ethical rules. This evolution will continue.
You have had a highly distinguished term as president of the ICC. What do you hope to achieve in the next phase of your career?
Apart from continuing to serve in cases, having more time to write and teach.
Alexis Mourre is "a star of the arbitration world". One peer says that "under his presidency, the ICC has pushed to a new level in international dispute resolution."
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 260 arbitration proceedings under most international arbitration rules, and on 1 May 2015 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 did you find most challenging about entering the arbitration space?
The international dimension and the flexible nature of the process. Coming from a background of court litigation, I found it fascinating to see parties from different legal cultures, and often having opposed expectations, play by the same transnational rules. I was also attracted by the fact that, quite differently from what happens in court, parties are able to agree on the procedure and frame it according to the specificities of their case. Another aspect that I found fascinating is the fact that arbitrators from different legal backgrounds can apply national laws to which they are completely extraneous. Finally, the international nature of the arbitral community, with its permanent exchanges and cross-fertilisation between arbitrators and counsel from all around the world was of great attraction to me.
What qualities make for a successful arbitrator?
There are many. An arbitrator needs to be on top of the case, understand the issues, maintain the balance between the parties and conduct the proceedings fairly. An arbitrator needs to be authoritative and efficient in his or her case management. He or she also needs to be bold enough to make the right decisions without being intimidated by the parties. This being said, I would suggest that the greatest challenge faced by arbitrators is keeping an open mind to the parties’ arguments throughout, until the parties have fully presented their case. There is always a risk of forming a view on the case at a too-early stage, which affects your ability to hear the parties and fully understand their arguments.
As president of the ICC’s International Court of Arbitration for the past four years, how have you seen the court evolve during your presidency?
The Court has evolved significantly in the past four years. Four new offices have been opened, two of which are case management offices (in São Paulo and Singapore) and two are representation offices (in Shanghai and Abu Dhabi). We have increased our global reach, in particular by creating the ICC Court Belt and Road Commission and the ICC Court Africa Commission. The Rules have been revised, notably to introduce our already very successful expedited rules. Our practices have been modernised, with the introduction of measures aimed at increasing transparency, fostering efficiency and establishing the highest level of ethics. The Court has for the first time issued guidelines for the disclosure of conflicts, based on a fundamental principle, according to which the parties are entitled to be aware of any circumstance that may create doubt as to the arbitrators’ independence and impartiality. In this respect, the Court assesses with rigour the consequences that should be drawn from a failure to disclose, when assessing an objection to confirmation or a challenge. The introduction of a time limit to submit draft awards to the Court, and the financial consequences that go with an unjustified delay, have very significantly reduced the delays that we previously saw. The composition of all ICC tribunals constituted from 1 January 2016 is now made public on the Court’s website, and we will add to that information the name of counsel and the industry sector involved, without of course prejudicing the parties’ legitimate expectations for confidentiality. The latest important change introduced to our policies aims at the publication of all ICC awards made as from 1 January 2019, unless any party objects to publication; there is a confidentiality agreement; or the secretariat exercises discretion not to publish. Finally, we have considerably improved the gender, generational and regional diversity, both in the Court itself and in our arbitrator appointments, and I am in this respect very proud that the new Court now has equal participation of women and men. Yet, there is still much to do in the years to come. We will consider expanding the scope of application of our expedited rules on an opt-out basis, and we will propose amendments to the ICC Rules aiming, in particular, at increasing the suitability of the ICC in investment cases as well as in arbitrations involving states.
How has the role of arbitrator changed since you first started practising?
There is more attention given to matters of case management than there was 25 or 30 years ago. I would say that the practice has evolved along several lines. First, there is an increasingly transnational approach to case management, and we see fewer and fewer arbitrators applying techniques drawn from their local judicial background. This evolution has been supported and encouraged by the work done by the IBA, as well as by ICCA and other international arbitration bodies. There is now a common playing field, and that is positive.
Second, there is now general awareness of the importance of the initial case management conference, and of early consultation with the parties on evidentiary matters.
Finally, as considerations of efficiency are becoming more significant, and as arbitrators are better prepared than in the past, tribunals show more readiness to address issues in stages when appropriate, including by bifurcating, by discussing relevant matters in interim procedural conferences or by entertaining motions for the early dismissal of manifestly unmeritorious claims or defences.
What responsibility do the courts have in promoting diversity, and how is the ICC making efforts to improve diversity in the field?
Increasing the generational, regional and gender diversity among our officers, court members and arbitrators is a fundamental line of policy for the ICC. We have already made significant efforts, but it is not enough. Less than 20 per cent of our arbitrators are women, and we need to very significantly increase that proportion. Our pool of arbitrators also continues to be largely dominated by practitioners from North America and Western Europe, which is not reflective of the realities of today’s world. We need to open our doors to arbitrators from Asia and Africa – regions that will shape our future. Finally, giving an opportunity to young practitioners to become arbitrators is a goal of great importance, and the ICC Institute of World Business Law, presided by Yves Derains, does a great job of helping us to achieve this.
What, in your opinion, are the benefits of new regional and local arbitration centres being opened around the world?
The opening of new centres is a consequence of increased diversity in the practice of arbitration, and it is in this regard a welcome phenomenon. Arbitral institutions, however, need to be sustainable and to endorse rules of governance that ensure compliance with basic rules of ethics and transparency, and that can sometimes be an issue. Finally, we see in some jurisdictions states attempting to impose the use of their locally sponsored arbitration centre, and that is of course a cause for concern – for that kind of protectionism can only lead to reduced competition, and therefore diminish the quality of the services offered to users.
How do you see your practice developing over the next five years?
I will aim at maintaining, in my practice as independent arbitrator, a balance between commercial cases (in particular in the energy sector) and investment cases.
What advice would you give to younger practitioners hoping to be in your position one day?
Follow the advice of Madame de Sévigné: “Quand je n’écoute que moi, je fais des merveilles” (“when I only listen to myself, I perform miracles”).
"He is an outstanding star in the field"
"A very high-profile and excellent arbitrator"
"Under his presidency the ICC has pushed to a new level in international dispute resolution"
"Committee meetings under his chairmanship are a model of efficiency"
Alexis Mourre has served as parties’ counsel, President of the Tribunal, Co-Arbitrator,
Sole Arbitrator or Expert in more than 260 international arbitrations, both ad hoc and before most international arbitral institutions (ICC, ICSID, LCIA, ICDR, SIAC, SCC, DIAC, VIAC, etc.). He established his own arbitration practice in May 2015, after having founded Castaldi Mourre & Partners in 1996, now a 35 lawyer firm specializing in arbitration and dispute resolution.
He is the author of numerous books and publications in the field of International Business Law, Private International Law and Arbitration Law. He is founder and former editor in chief of Les Cahiers de l’Arbitrage – The Paris Journal of International Arbitration, a leading French publication in the field of Arbitration.
Since July 1st 2015, Alexis Mourre has been the President of the ICC International Court of Arbitration, and was Vice-President of the Court from 2009 to 2015. He was Vice President of the ICC Institute of World Business Law from 2011 to 2015. Formerly, he had served as co-chair of the IBA Arbitration Committee (2012-2013), LCIA Court member (2012-2015) and Council member of the Milan International Chamber of Arbitration (2006-2014). He is a member of a large number of scientific and professional institutions dedicated to Arbitration and Private International Law. He is the founder and former president of Paris Place d’Arbitrage/Paris the Home of International Arbitration.
He is fluent in French, English, Italian and Spanish, and has a working knowledge of Portuguese.