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 the 1 January of 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 the 1 January of 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, eg, 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”).
Alexis Mourre is an independent arbitrator. He has been the president of the ICC International Court of Arbitration since 2015. Previous roles include 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.
WHAT DID YOU FIND MOST CHALLENGING ABOUT ENTERING ARBITRATION PRACTICE?
Looking back 25 years ago, when I decided to focus my career on arbitration, it was surely the transnational nature of our practice as well as the flexible nature of the proceedings. The need to adapt in each case to the specificities of the dispute and the expectations of parties from different cultural backgrounds appeared to me as an extraordinary challenge, but also a fantastic opportunity. My background at the time was court litigation, a practice where form often prevails on substance with a complex net of mandatory rules frequently sanctioned by nullity or inadmissibility, resulting in unnecessary complexity and added costs, to no benefit of fairness in the process or of the correctness of the decisions. Consider that, in countries such as France or Italy, a Code of Civil proceeding can span several thousand pages! Being able to frame in each given arbitration a procedure adapted to the specific needs and expectations of the parties seemed as an incredible progress to me.
HOW HAS THE ARBITRATION MARKET CHANGED SINCE YOU FIRST STARTED PRACTISING?
It is, of course, a much more diverse, open and competitive environment, with more arbitrators, more counsel and more institutions, but also a wider range of reliable arbitration seats around the globe. That is very good. There is also, in certain parts of the world, a resurgence of what I would call a certain form of arbitral nationalism, with governments trying to impose the use of their local arbitral institutions, which is not so good. We also are entering in a more uncertain environment, in which trust in arbitration is no longer a given. We see that in investor/state arbitration, but commercial arbitration is not insulated from a backlash, as some recent cases have shown. Finally, transparency is already changing the face of arbitration, both in investment and commercial arbitration.
WHY DID YOU ESTABLISH YOUR OWN ARBITRATION PRACTICE AFTER FOUNDING CASTALDI MOURRE & PARTNERS?
The need to avoid conflicts of interest as my practice focused mainly on arbitrator work.
WHAT ADVANTAGES DOES THE ICC OFFER OVER OTHER ARBITRATION INSTITUTIONS?
There are many. Its unique knowledge of the population of potential arbitrators in almost every jurisdiction in the world. Its truly global culture. The flexibility of its arbitration rules, accompanied by detailed guidance provided to the parties in its practice note. Its unique experience in administering large, complex, multiparty and multi-contracts cases. The availability of tools such as emergency arbitration and expedited rules. The measures recently taken to ensure the greatest efficiency of our arbitrations, such as the time limit for the submission of draft awards and the financial sanctions whenever there are unjustified delays. Its case management, ensuring at each stage that the arbitration is efficiently conducted, and the immediate availability of the secretariat in case of difficulties or questions. The innovative measures to increase the transparency of its procedures, such as the publication of reasons for the Court’s decisions and the publication of the composition of ICC tribunals. And of course, its unique service of scrutiny of awards, which is greatly appreciated by arbitrators and contributes to avoid errors and to increasing the quality of awards. Finally, I think that the ad valorem fees scale contributes to better costs predictability and control.
IN 2018 THE QUEEN MARY SURVEY FOUND THAT THE ICC WAS THE PREFERRED ARBITRATION INSTITUTION OF 77 PER CENT OF RESPONDENTS. HOW ARE YOU LOOKING TO SUSTAIN AND BUILD ON THIS SUCCESS?
By continuing to provide global excellence and to constantly innovate in order to improve the quality of our services. One very important driver of our actions is our constant exchange and dialogue with our users, allowing us to hear their concerns and constantly adapt our practices to the needs of the business community.
WHICH QUALITIES DOES THE ICC LOOK FOR WHEN APPOINTING ARBITRATORS?
The paramount duty of any arbitral institution is to select the best available arbitrator in each given case. We look at the parties’ requirements or preferences, if any have been expressed, as well, of course, at potential conflicts of interests, the nationality of the parties and the balance of the tribunal. The candidate’s qualifications in the sector of industry at stake and the applicable law are, of course, of great importance. We then look at the quality of the work performed by the candidate in other cases, as well as his or her availability, which needs to match that of the other arbitrators in the case. Gender and regional diversity are also very important considerations, to which great attention is given by the Court. Finally, the Court aims at promoting young practitioners whenever possible. The Court would always require that a candidate has sufficient experience when appointing a young practitioner as chairperson or sole arbitrator, but many of them tick that box easily and I am surprised of the quality of the work that they produce. This is a process to which we devote a lot of attention. In many instances, the Court is assisted in making the selection by proposals made by a neutral national committee of the ICC selected by the Court, and this greatly increases our outreach. We have also included in the last version of our practice note new provisions allowing the parties to consult and interact with the secretariat, directly or through a list procedure, in the appointment process.
YOU HAVE HAD A VERY DISTINGUISHED CAREER SO FAR. IS THERE ANYTHING ELSE YOU WOULD LIKE TO ACHIEVE?
I hope to have a lot more to achieve, both in my arbitrator career and as president of the Court.
WHAT ADVICE WOULD YOU GIVE TO PRACTITIONERS WHO WANT TO FOUND THEIR OWN FIRM?
Go for it!
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 has served as parties’ counsel, president of the tribunal, co-arbitrator, sole arbitrator and 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 specialising 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 1 July 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. Former roles include 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, The Home of International Arbitration / Paris Place d'Arbitrage.
He is fluent in French, English, Italian and Spanish, and has a working knowledge of Portuguese.