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Thought Leaders

Thought Leaders

Thought Leader

WWL Ranking: Global Elite Thought Leader

WWL says

Bernard Hanotiau is “a top Belgian arbitrator” who is “extremely experienced and has a no-nonsense approach”. He has spent over 40 years acting as arbitrator, chairman and counsel in commercial disputes.

Questions & Answers

Bernard Hanotiau is a member of the Brussels and Paris Bars. Since 1978, he has been actively involved in more than 500 international arbitration cases in all parts of the world, in all sectors of industry. Mr Hanotiau is professor emeritus of the law school of Louvain University (Belgium). He is an advisory member of the ICCA governing board and member of the Council of the ICC Institute. He is a member of the Court of Arbitration of SIAC. He is the author of Complex Arbitrations - Multiparty, Multicontract, Multi-Issue (Kluwer, 2006, second edition 2020). In March 2011, Mr Hanotiau received the GAR Award for Arbitrator of the Year. In April 2016, he also received the Who’s Who Legal Award for Lawyer of the Year in Arbitration.

To what extent can virtual hearings be relied on to decide high-stakes multibillion-dollar cases between parties? 

From an arbitrator’s point of view, virtual hearings can definitely be relied on to decide high-stakes multibillion-dollar cases between parties. I had the opportunity to chair a long virtual hearing in such a case. I can confirm that my overall impression was not different from what it would probably have been in a physical hearing. My opinion is that from the point of view of an arbitral tribunal - the fact that the hearing is virtual does not have any influence on one’s understanding of the case and does not affect one’s judgement. You see counsel, witnesses and experts close up, the documents are displayed on the screen, you can ask questions to counsel as if there was a physical hearing and you can discuss with your co-arbitrators during the breaks in a virtual break-out room. But on the other hand, I can easily understand that for such high-value disputes, the parties could insist on a physical hearing. 

Which challenges are unique to investment arbitration disputes?  

Investment disputes are a totally different kind of disputes. They are based on treaties, they involve public international law, their resolution is much more dependent on the law than commercial disputes which are more fact-focused. They require a deep command of public international law. But the biggest challenge they raise is the growing concern expressed by some states and the public at large concerning the legitimacy of the dispute resolution system put in place to solve these disputes.

What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for experienced lawyers?

There are nowadays a lot of very talented young lawyers specialising in international arbitration. Getting appointments is much more difficult for them than it was a decade ago. If they want to improve their chances, they should try to be active and visible at all levels: taking responsibilities in arbitration committees of international and local organisations, publishing creative articles on hot substantive topics, participating as speaker in conferences and seminars. In this respect, the lockdowns imposed by the pandemic makes things extremely difficult for young lawyers and this is probably where our generation has more than ever an active role to play to promote by all possible means the talented young lawyers who work in our firms. 

If you could implement one reform in international arbitration, what would it be? 

I do not think that one reform would be enough, and it is also difficult to consider what reforms could be easily introduced to make the arbitration more time and cost efficient. Could it be envisaged to limit the number of requests for document production that a party can introduce, or limit the number of pages of each submission, or authorise the tribunal to fix a maximum budget to be spent by counsel in a case, depending upon the nature and characteristic of each dispute?    

In what ways does Hanotiau & van den Berg distinguish itself from competition in the market?

Hanotiau & van den Berg is a boutique law firm highly specialised in international arbitration and providing all the services which may be needed in that area. We have litigators, arbitrators and even one of the 20 Supreme Court lawyers authorised to practice before our highest jurisdiction. Our team of arbitrators is one of the strongest in Europe. In particular Mr. van den Berg and myself have more than 40 years of experience as international arbitrators in commercial and investment disputes in all parts of the world, in all sectors of industry. 

How has covid-19 had an impact on commercial arbitration? Are parties willing to be flexible in procedure and approach to get it over the line? 

At the beginning of the pandemic, we sometimes perceived a reluctance of parties to accept to switch to a virtual hearing for a multiplicity of reasons. Six months later, it has become very rare that parties are insisting on a physical hearing and therefore, a postponement of the case. The technology has developed very quickly, with the consequence that a virtual hearing resembles more and more a physical hearing. In each case, the parties and the arbitral tribunal have a discussion on how the virtual hearing is going to take place taking into consideration the availability of the witnesses and experts located in various parts of the world, measures to guarantee the integrity of the proceedings, etc., and are always able to agree on a protocol which includes all these arrangements. The mindset of the parties has changed very quickly.

What role do you see third-party funding playing in arbitration moving forward?

I think there will be more and more work for third-party funders given the financial difficulties that many companies are facing following the lockdowns in numerous countries and other covid-19-related restrictions. 

WWL Ranking: Thought Leader

WWL says

Bernard Hanotiau is “a top Belgian arbitrator” who is “extremely experienced and has a no-nonsense approach”. He has spent over 40 years acting as arbitrator, chairman and counsel in commercial disputes.

Questions & Answers

Bernard Hanotiau is a member of the Brussels and Paris Bars. He is also professor emeritus of international law from the University of Louvain. Since 1978, he has been involved in hundreds of arbitration cases as party-appointed arbitrator, chairman, sole arbitrator, counsel and expert in all parts of the world, according to the rules of most arbitral institutions and the UNCITRAL Rules. In March 2011, Mr Hanotiau received the GAR Arbitrator of the Year award. In April 2016, he also received the WWL Lawyer of the Year: Arbitration award.

Is there a difference between your preparation as an arbitrator/chairman and your preparation as counsel? 

Arbitrator and counsel have in common that they must have a deep knowledge of the case when they come to the hearing, but they approach the case from a different perspective. Counsel’s objective is to win the case. To this end, they have to develop a strategy; make sure that their witnesses and experts are well prepared; and anticipate all possible questions that can be raised by the adversary and the tribunal. The tribunal’s duty is to render a just decision on the basis of the memorials and evidence submitted by the parties. Their task is to read and understand the whole record and determine what areas need to be clarified or further investigated at the hearing. Therefore, they both prepare the case under a different angle.

In what ways has your role as vice president of DIAC and member of the Court of SIAC enhanced your arbitration practice? 

Being a member of an institutional board or court gives you a better idea of the issues with which these institutions are confronted, and a better feeling for the regional differences and cultural sensitivities in terms of arbitration practice. You also see the other side. It is a very rewarding experience. 

What are your thoughts on diversity within the arbitration practice and why is it important? 

For decades, the arbitration practice has been dominated by Western white males. Following various initiatives like the Pledge, the arbitration world realised that this had to change. And it has changed and continues changing. There is more diversity among arbitrators in terms of gender and geographical origin. But one must realise that what the parties are looking for in the first place when they have to appoint an arbitrator, is an individual who has the required experience and expertise, whatever his or her gender or origin.

How do you see your practice developing over the next five years?

I do not anticipate any major change in my practice. There are more and more international arbitrations, whether commercial or investment. I will continue to act as arbitrator in major disputes under the rules of various institutions. I only anticipate a greater diversity of seats or venues. Arbitration has truly become a worldwide phenomenon. Thirty years ago, it was mainly limited to Europe. Nowadays, arbitration is practised in nearly every country of the world. 

How do you anticipate international arbitration will change in the next five years?

Year after year, arbitration is becoming more and more complex in terms of procedure and I do not anticipate that it will fundamentally change in the future. One thing is sure: the development of technology will have a more and more profound impact on our practice.

You have published extensively on international arbitration and contractual matters. What are the opportunities and challenges of publishing so extensively? 

Having started my career as an academic, I have always found it natural to publish on challenging issues in international arbitration. I also find great pleasure in publishing. And I think that by publishing extensively on multi-contract multiparty arbitrations, I have greatly contributed to the understanding and knowledge of this topic. 

What has been the most rewarding part of practising in such an international discipline? 

International arbitration is comparative law in action. You have the opportunity to decide disputes of paramount importance involving fascinating issues of fact and law, each case is different, you meet fascinating personalities, you learn about various industries and technologies. It also gives you the opportunity to discover the world and its multiple legal cultures.

What advice would you give to someone looking to start their own boutique arbitration law firm?

I would say first: do it. And in the second place: do it with somebody else, with another experienced arbitrator. Being two gives a stronger message to the outside world and generates more dynamism in the new venture. Our firm will celebrate its 20th anniversary next year. It has been, and remains, a fascinating experience. I would definitely do it again.

Global Leader

Arbitration 2021

Professional Biography

WWL Ranking: Global Elite Thought Leader

Peers and clients say

"He is the top Belgian arbitrator!"
"A global elite arbitrator with a well-deserved reputation"
"He is a superstar"
"He is extremely experienced and takes a no-nonsense approach"

Biography

Bernard Hanotiau is a member of the Brussels and Paris Bars. In 2001, he established a boutique law firm in Brussels concentrating on international arbitration and litigation. The firm has offices in Brussels and Singapore.

Since 1978, Bernard Hanotiau has been actively involved in international commercial arbitration as party-appointed arbitrator, chairman, sole arbitrator, counsel and expert in various parts of the world. Among the parties engaged in these arbitrations have been states (including on the basis of bilateral investment treaties) and state entities; high-tech and telecommunications corporations; construction and real estate companies; airport designers and developers; owners and lessees of shopping centres, retail parks, department stores and hypermarkets; oil, gas and mining companies; pipeline manufacturers (and related industries); dredging companies; water and electricity suppliers; pharmaceutical and chemical companies; providers of medical services; automobile manufacturers and manufacturers of parts for the automobile industry; distributors and manufacturers of various kinds of goods and equipments; fashion merchants and retailers; owners and retailers of luxury brands; food suppliers; breweries; manufacturers of military supplies and satellites; airlines and railways; GDS operators; banks and investment companies; hotel management corporations and casinos; and insurance and reinsurance companies.

Mr Hanotiau is a member of the panel of arbitrators of, or receives appointments as arbitrator by, the International Chamber of Commerce (ICC, Paris), the London Court of International Arbitration (LCIA), ICSID, the American Arbitration Association (AAA), the Stockholm Chamber of Commerce, the Russian Arbitration Association, SIAC (Singapore), TRAC (Teheran), HKIAC (Hong Kong), DIAC (Dubai), CIETAC (Beijing), BAC (Beijing), the Japan Commercial Arbitration Association, KLRCA (Kuala Lumpur), KCAB (Seoul), the BVI International Arbitration Center, the Permanent Court of International Arbitration (PCA, The Hague; also on the PCA-specialised panel of arbitrators for disputes relating to outer space activities), WIPO (Geneva), CEPANI (Belgium), the Netherlands Arbitration Institution (NAI), the Swiss Chambers of Commerce, the Pacific International Arbitration Centre (PIAC), VCCA (Vilnius), the Lima Centro de Arbitraje, the Danish Institute of Arbitration, the Cairo Center of Arbitration, the French Arbitration Association and the French-German Chamber of Commerce (Paris), IATA (Geneva) and the Court of Arbitration for Sport (CAS, Lausanne).

Mr Hanotiau has a PhD from Louvain University and an LLM from Columbia University (1973). He is a member of the ICCA advisory board, the council of the ICC Institute, the ICC International Arbitration Commission, the SIAC Court of Arbitration, the international advisory board of the Seoul IDRC, the International Court of Arbitration of the Istanbul Arbitration Center and the Hong Kong International Arbitration Centre international advisory board.

Mr Hanotiau is the author of Complex Arbitrations, Multi-party,  multi-contract  and  multi-issue “(Kluwer , second edition , 2020) and of more than 120 articles, most of them relating to international commercial law and arbitration.

In March 2011, Mr Hanotiau received the GAR Arbitrator of the Year award. In April 2016, he also received the Who’s Who Legal Lawyer of the Year: Arbitration award.

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