Isabelle Michou is a partner at Quinn Emanuel Urquhart & Sullivan LLP in Paris. Canadian and French, she is dual-qualified in France and England. Her practice focuses on commercial and investor-state arbitration, under all major arbitration rules, and covers a broad range of sectors including telecoms, energy, aeronautic, defence, large-infrastructure projects, hotel management. She acts as counsel for both corporations and states, and also regularly sits as arbitrator. She appears in courts in arbitration-related litigations in France. Isabelle has been deeply involved in publishing and speaking on international arbitration.
WHAT INSPIRED YOU TO PURSUE A CAREER IN THE LAW?
As is often the case for people with no family members already in the field, I discovered law somehow by chance. I immediately felt it was natural fit for me.
WHAT DO YOU ENJOY MOST ABOUT WORKING IN INTERNATIONAL ARBITRATION?
It is one of the most interesting practice areas. It requires a very good knowledge of international and comparative law. It allows in-depth thinking on complex and sometimes novel issues, but requires at the same time a high level of advocacy to present those issues in the most convincing way to persuade the tribunal in front of you. Equally importantly, it allows a lot of travelling and interactions with interesting clients and colleagues from all over the world with different backgrounds and experiences.
ONE OF THE MAIN FOCUSES OF YOUR PRACTICE IS DISPUTES RELATING TO AFRICA. WHAT ARE THE MAIN CHALLENGES YOU FACE PRACTISING IN THIS AREA?
Yes, I am acting as lead counsel and advocate in a number of international arbitrations relating to disputes in Africa, involving mere commercial disputes or investor-state disputes. One advantage of being a French-qualified lawyer and a French speaker (in addition to being an English-qualified solicitor) is that I have rights of audience before the national courts of those francophone African countries that have bilateral agreements with France. It allows me to assist international clients fully on all aspects of their disputes (international arbitration and parallel court litigation in the relevant country). Africa is a diverse continent. It requires huge experience and understanding of the continent’s local and regional business practices and legal systems, as well as an extensive network of lawyers, and contacts at academic and government levels, in the country itself. Each case is specific and may require different skills and needs. I would, therefore, typically draft the written pleadings and work with a select team of colleagues who are on the ground, and who have direct access to the local magistrates and the bar, as well as knowledge of the court practices. One of the challenges (which is not unique to Africa) is that court litigation is often used as a tactical tool by one of the parties to disrupt the arbitral process. There is rarely in Africa an established and consistent track record of decisions rendered by the national courts to protect the arbitral process. In some countries, there is simply no readily available case law at all, which makes any predictions as to how courts will decide very difficult. You therefore need to have strong arbitral tribunals, not easily influenced, to evaluate quickly the situation and decide as appropriate in order to avoid unnecessary disruption or delay.
WHAT IMPACT DO YOU THINK THE RECENT ACHMEA JUDGMENT WILL HAVE ON THE FUTURE OF INVESTOR-STATE ARBITRATION IN EUROPE?
The CJEU’s judgment on Achmea was rendered in March 2018. More than a year later, it is clear that it has created a turmoil in investor-state arbitration in Europe.
Some arbitrators have resigned from tribunals in pending arbitrations, or have faced challenges, because of the perception – true or false – that they might have anti-Achmea views. Others have simply refused to take on new appointments. The EU Commission, for its part, has embarked on an aggressive lobbying campaign to invite EU member states into denouncing all existing intra-EU BITs. In August 2018, the Commission applied to seek leave to intervene in support of the Achmea judgment in all intra-EU arbitration cases (and even in non-intra-EU BIT cases involving EU issues such as state aid). The arbitration community has debated at innumerable conferences and seminars what the impact of the Achmea judgment would be on existing and future intra-EU arbitrations, with no clear answer emerging. It has clearly strengthened the political position of the EU Commission, which has been a vocal opponent to investor-state arbitration in Europe for years without much success. Now the EU member states have responded to its call and will terminate all intra-EU BITs. In January 2019, the member states issued a joint declaration on the legal consequences of the Achmea judgment, stating that they would terminate their intra-EU BITs by the end of 2019 (it may be difficult to stay on schedule), while showing also divergent views on the ECT. They also announced that both home and host states would jointly “inform” arbitral tribunals in ongoing arbitrations and national courts in annulment/enforcement proceedings where, in their view, there is no valid arbitration agreement and arbitral tribunals therefore lack jurisdiction.
Arbitral tribunals have up to this point resisted and consistently ruled that the Achmea judgment is not binding on them, and that it does not affect their jurisdiction to decide treaty-based claims before them, whether ECT or intra-EU BIT. It remains to be seen whether they will maintain that line, and how national reviewing courts in the EU will react. The Svea Court of Appeal’s judgment in an intra-EU BIT SCC arbitration case has recently rejected Achmea-based objections by the state and it is hoped that it will be upheld by the Supreme Court if there is an appeal.
Having said that, it is clear that the future of intra-EU investor-state disputes will be reshaped, once the intra-EU BITs are terminated and their sunset clauses no longer available. The Commission has yet to demonstrate that EU law can actually protect cross-border EU investments in the same way as BITs do. It is also difficult to see how the right to resort to national courts under national law, as proclaimed by the Commission and EU member states, can provide an effective judicial protection to EU investors and investments. The right to resort to a delocalised and neutral dispute settlement system should be at the heart of the EU investment protections. This should prevail over the principles of mutual cooperation and trust between EU member states.
HOW IS REGULATORY INTERFERENCE IN THE ARBITRAL PROCESS IMPACTING THE WAY IN WHICH PRACTITIONERS ADVISE CORPORATE CLIENTS?
The EU Commission’s lobbying described above is a good example of how regulatory authorities may interfere in, and even disrupt, the arbitral process. So far, arbitration practitioners’ focus has been to choose a set of arbitration rules, or a seat of arbitration, that ensures minimum interference from national courts and an arbitration-friendly legal environment – both are key to a neutral, efficient and successful arbitral process. Arbitration practitioners may now want to consider adding a new factor in their case assessment – that is, the potential (extra-territorial) interference of regulatory authorities that may impact directly or indirectly on the merits of their clients’ claims (whether on jurisdiction or on the substance) as well as the arbitral process itself if the regulatory authority seeks leave to intervene.
WHAT IS THE BIGGEST ISSUE THAT ARBITRATION NEEDS TO ADDRESS IF IT WISHES TO KEEP GROWING AND IMPROVING ITS EFFICIENCY AS A FORM OF DISPUTE RESOLUTION?
A lot of criticisms that have been made towards international arbitration in recent years (costs, length, lack of transparency, diversity, etc) have already been addressed or are being addressed. However, we should not lean too far in the opposite direction at the risk of creating more disputes or challenges – too much transparency will lead to more tactical challenges to arbitrators, and too much time and cost-efficiency will undermine the quality and accuracy of the decision-making process. The biggest issue for international arbitration to continue to grow and improve? Not to overstate the problems that are said to affect international arbitration. Today, as recent surveys show, international arbitration is and remains the most popular mechanism to resolve cross-border commercial disputes. We should acknowledge it and stop fixing what is not broken. For investor-state disputes, I don’t see how the national courts of a host state could be seen as a viable option for foreign investors to resolve their disputes with a state. The EU proposal after Achmea is not therefore viable. As a result, I expect to see an increase in state contracts providing for contractually-agreed international arbitration (ICSID or other).
WHAT IS THE BEST PIECE OF CAREER ADVICE YOU HAVE RECEIVED?
Work hard. Never take anything for granted.
Isabelle Michou is a "very knowledgeable and strong practitioner" who peers consider "an absolute first-rate opponent" who is "very creative in her arguments".
Isabelle Michou is a partner at Quinn Emanuel, based in the firm’s Paris office. She has extensive experience in international arbitration (both investor-state and commercial) in a range of industries, including large-scale infrastructure projects, oil and gas, telecoms and hotel management, often in cases involving Africa, the Middle East and Europe. She has appeared as counsel before numerous high-profile arbitral tribunals, under the auspices of the major institutional rules, including ICC, ICSID, LCIA and Stockholm Chamber of Commerce, as well as ad hoc arbitrations under the UNCITRAL Rules.
Isabelle also appears in arbitration-related proceedings before the French courts as well as before the courts of some Francophone Africa countries, in cases involving objections to jurisdiction based on arbitration clause, issues of interim or conservatory relief, enforcement and challenges of arbitral awards and sovereign immunities.
She is regularly appointed arbitrator in arbitrations under various sets of rules (ICC, LCIA, SCC, PCA’s Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment).
She is French and Canadian, and dual-qualified as a Paris avocat and a solicitor of England and Wales.
She has been involved deeply in publishing and speaking on international arbitration. She also teaches advocacy in international arbitration at the law school of Sciences Po in Paris and at the School of International Arbitration at Queen Mary University of London. She is on the executive committee of the Swiss-based Foundation for International Arbitration Advocacy (FIAA).