The founding partner of Clifford Chance’s international arbitration practice, John was one of the first solicitors to undertake the role of advocate before international arbitration tribunals. A two-term president of the ICC International Court of Arbitration, he introduced the 2012 ICC Arbitration and Mediation Rules and led the initiative to move the Court to new premises in Paris. He is active worldwide as an arbitrator in investor-state and commercial arbitrations, from bases in Hong Kong and London.
What attracted you to a career in arbitration?
The opportunity to work on international disputes before tribunals where no restricted rights of audience applied, and eventually to practise as an arbitrator in my own right.
What did you find challenging about entering the arbitration field? Are the challenges still the same today?
One challenge was the scepticism of some of my then partners who doubted that such a practice could ever be successful. Happily, encouragement came from elsewhere – not least from Martin Hunter and Alan Redfern.
I think things have changed since then. The challenge now is to make a mark in a crowded, competitive practice area, a concept almost inconceivable to many established arbitrators 35–40 years ago.
What is your opinion on third-party funding in arbitration cases?
I would not be a member of a TPF advisory panel if I thought it inherently bad for arbitration.
What are the implications of the recent Achmea decision on investment treaty arbitration in Europe?
The Achmea decision, in which scant regard was paid to the carefully reasoned opinion of the advocate-general, has been described as dogma, not law. It is a powerful manifestation of the antipathy in EU circles, notably in the Commission and European Parliament, towards the resolution of intra-EU investor-state disputes by “private” arbitration, rather than in the courts of the EU or before any proposed standing investment panel, drawn from the ranks of the EU member states’ judiciary. Investors will doubtless form their own views about the loss of a neutral forum for the resolution of such disputes, and the willingness of the Commission and other EU organs to treat international treaty obligations so lightly when they are quick to criticise other states for similar conduct – which, in those circumstances, they regard as cavalier. It remains to be seen whether an attempt will be made to have the ECJ confirm the Commission’s dictum that Achmea applies to the ECT, too. It is, in short, a very serious, negative development, which calls into question the viability of investment treaty arbitration in the EU.
What effect have UNCITRAL rules had on global arbitration procedures?
Profound and beneficial. They enjoy universal confidence and they have done much to promote the development of arbitration within a framework to which parties and their advisers can relate.
What challenges face arbitration as a practice area? What steps does the community need to take to overcome these challenges?
There are a number of such steps, of which I would single out four. First, it is important to be alive to the risk that political and media antipathy presently directed at investor-state arbitration in the EU and the United States might tar international commercial arbitration. Second, there is a need to demonstrate that arbitration is effective, efficient, fair and that arbitral decisions in the vast majority of cases are based firmly on the law; but, and this is the third step, it must be recognised that there are limited powers available to a tribunal to tackle procedural abuse by a party. This is an issue that the arbitral community must address. Intimidation of tribunals and other guerrilla tactics are on the rise. They are difficult to deal with in circumstances in which a party believes it may act with impunity, because any attempt by a tribunal to ensure procedural fairness in the face of such tactics may be seized upon as indicative of bias and ground for a challenge or court application. The final necessary step is to continue to encourage the development of arbitration in parts of the world where, traditionally, disputes have been heard by arbitrators and argued by counsel from “developed” arbitral jurisdictions. This is a long-term project, but one just as important as the elimination of the “gender gap”, which the arbitral community is doing a great deal to address.
What are your main priorities for your firm’s development over the next five years?
As a sole practitioner, I am subject to very different pressures from those faced by a partner in a large practice. Among my most important priorities is to ensure that I allow my colleagues, Joao Valerio and Niccolo Landi, every opportunity to develop their own career paths as arbitration practitioners in their own right. If, in the process, current arrangements might be formalised as a partnership which is a sustainable platform for their careers in the long term, well and good.
What advice would you give to someone looking to start their own firm?
Much depends upon what you have done already. Enjoy the sense of freedom that comes with being your own boss, but be clear what it is that you want to do and how you might realise that aim, and be mindful of the stage of your career at which you are setting up shop in your own right.