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 Urquhart & Sullivan in Paris. She is Canadian and French, and dual-qualified in France and in 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 and hotel management. She has extensive experience as counsel acting for both corporations and states, and regularly sits as arbitrator. She also appears in courts in arbitration-related litigations in France (challenges, enforcement of awards, etc). Isabelle has been deeply involved in publishing and speaking on international arbitration.
What motivated you to specialise in arbitration?
The unique combination between civil law and common law, and private and public international law; the cross-border aspects of the work; the privilege of being part of what may be called the “international arbitration bar”; and the extraordinary opportunity to interact and work with colleagues coming from different legal and cultural backgrounds, and join forces with clients to achieve the best possible results.
What is your favourite aspect of investor-state arbitration?
What I like most about investor-state arbitration is that it is clearly a faster-moving area of law. Also, there is a wider general interest that comes into play that makes it different. In commercial arbitration, the parties to an arbitration generally know each other. They have done – and may still do – business together, and they have both agreed to refer their commercial dispute to arbitration. The outcome will have an immediate effect on their own business relationship. In investor-state arbitration, the parties have also agreed to refer their dispute to arbitration, but because there is an asymmetry between the parties, ie, a private investor and a state acting before an international investment tribunal, additional considerations come into play. The outcome also may have wider consequences on the host country and sometimes on the country’s people. That requires some specific awareness that a balance is needed on issues of procedure and substance; for instance, the recent recommendations of the Institute of International Law (IDI) show that equality between the parties must be ensured in the constitution of tribunals, document production and transparency. It is also visible in the most recent investment treaties that are seeking to protect foreign investors/investments while ensuring that the states’ right to regulate is better preserved.
How have investors been impacted by the Achmea judgment?
It is clear that EU investors have been – and will continue to be – impacted by the March 2018 Achmea judgment when investing in the EU and possibly even outside. This is true in particular for those investors who have not yet obtained a final award or a payment in compliance with a successful arbitral award. These EU investors have directly suffered from what was intended to be a policy/political change by the European Court. As a result, they are facing difficulties and delays to fully exercise their rights.
For new investors, the situation is slightly different. They know there are new rules that are being put in place and they can therefore assess risks. There is still, however, a great deal of uncertainty. EU investors still don’t know what level of substantive and financial protections EU law will offer, once all intra-EU BITs are terminated. Also, it is unlikely that EU investors will be satisfied with the EU agreement signed in May 2020 which provides no guidance as to where investors can go for new arbitrations. Uncertainty is the enemy to any effective dispute settlement mechanism. Again, we can never stress enough that the investors’ right to resort to a delocalised and neutral dispute settlement mechanism, whether ad hoc or permanent, is key. It must remain at the heart of EU investment protections.
How do you see the role of arbitrators evolving in the next five years?
I see two main areas where the role of arbitrators may evolve in the next few years. First, arbitrators will wonder more and more what circumstances they need to disclose to the parties when they are appointed. With the ever-increasing scope of the arbitrators’ duty to disclose (which in turn is a result of a growing transparency trend), there is a correspondingly increasing number of challenges to the impartiality and independence of arbitrators. This is true even if a disclosure is not in itself determinative of reasonable doubts as to impartiality and independence, let alone of a conflict of interest. It is important that any such challenges be resolved by a third-party neutral in order to give the arbitration process its fullest legitimacy and avoid abuses.
Second, arbitrators will need to adapt to a more and more paperless process and will most likely use more virtual reality technology. The recent coronavirus outbreak has provided a life-size test. By contrast, it is most unlikely that we will see artificial intelligence (AI) applications replace humans any time soon in decision-making, which is at the heart of the arbitrators’ role. AI will only continue to be used to process large data and analyse, learn and optimise that data.
What advice would you give to aspiring arbitration practitioners?
Take nothing for granted. Always look for the best in whatever you do.