Charles Poncet is a Swiss lawyer based in Geneva, Switzerland, and specialises in international arbitration; commercial and contractual litigation; white-collar matters; and media law. In his arbitration practice, he is highly reputed as an international arbitrator, known for his thorough preparation and study of arbitration files when he sits as arbitrator, and for his precise, pertinent questions during hearings. He has been involved as arbitrator and/or counsel in more than 100 international arbitrations in investor-state and commercial disputes over 30 years.
What has been your greatest achievement to date?
I guess I was lucky to stay alive through these challenging times.
What is the future of investment arbitration given the hostile position of the European Commission?
The political pressure against investment arbitration has been considerable but it is unclear what will happen in the post-coronavirus world. Discredited as it is as an institution, the EU Commission bureaucracy is unlikely to stop spinning. They will seek to outlaw investment arbitration altogether and probably succeed in part. I would expect major investors needing state involvement one way or the other to start devising ad hoc arbitration clauses in lieu of the ones contained in the BITs, but this will take some time. Gary Bond is probably right to say, “The winter is coming.”
What is the greatest strength of the arbitration community at the moment?
The incomparable skill level it brings to dispute resolution strikes me as quite obvious if you make a comparison with the average lawyer’s abilities. So is the absence of corruption. In comparison with the state courts in many countries, the arbitration system is squeaky clean and that is most remarkable.
How suited are private claims for public wrongs? Will we see victims of human rights abuses and other crimes seek compensation through arbitration?
I hope not and it would be counterproductive. The answer is to have better international adjudication systems for human right violations or crimes against humanity, or major environmental disasters. Trying to “farm out” these issues to arbitration strikes me as a dangerous illusion.
Why did you decide to set up your own firm?
To avoid conflicts of interests. Nowadays a conflict check to know if I can accept a nomination as arbitrator takes me about five minutes, instead of a couple of days !
What are the real or perceived inefficiencies that can plague an arbitration, and how can stakeholders in the process tackle these issues?
Costs are an obvious concern but with age, scepticism blends in: my first arbitration programme (at the ICC, I believe) was about “containing costs”. It was in 1981 or 1982. Costs are a fact of life I am afraid, but sometimes reading the statement of costs at the end of a case and thinking of the arbitral tribunal’s fees, I am reminded of Professor Michael Reisman’s wise admonition that “virtue has its own rewards”.
It’s often assumed that common lawyers have an advantage over civil lawyers in any dispute that entails document production. Do you agree with this?
I do not. Common law-trained lawyers are better at cross-examination and we should not try to imitate them, because it takes a long time and lots of practice to develop that particular skill. With an experienced panel, having two styles and two approaches is not a problem in my experience.
What does delivering fairness mean in international arbitration today?
Reading every piece of paper in the file and understanding it; listening to witnesses and arguments; and striving to reach the right decision with no other consideration than getting it right, if possible.
Charles Poncet is a Swiss lawyer based in Geneva (Switzerland) and specialises in international arbitration, commercial and contractual litigation, white-collar matters and media law.
In his arbitration practice, he is highly reputed as an international arbitrator, known for his thorough preparation and study of arbitration files when he sits as arbitrator and for his precise and pertinent questions during hearings.
He has been involved as arbitrator and/or counsel in more than 100 international arbitrations in investor-state and commercial disputes over 30 years.
Charles Poncet is a member of the Geneva Bar. He has a PhD in law from the University of Geneva and is a Master of Comparative Law (Georgetown Law School, 1973).
He is fluent in French, English, Italian and German. His Spanish is in progress.
He was a member of the Swiss Parliament from 1989 to 1995
Having retired from CMS von Erlach Poncet at the end of 2016, he now practises as Poncet SARL. A list of his publications can be found at www.poncet.law.
He has also created the site www.swissarbitrationdecisions.com, containing his translations of, and short comments on, all decisions of the Swiss Supreme Court (Federal Tribunal) concerning international arbitration since 2008. Since 2017 the website has been operated in collaboration with Dr Despina Mavromati and a team of lawyers.