John V H Pierce is a partner and head of the international arbitration practice in WilmerHale’s New York office. He represents clients in international arbitration proceedings in venues around the world, under both civil and common law regimes, and sits as an arbitrator in international disputes. Described by Chambers as “a crucial figure in the firm’s global arbitration practice,” John is recognised by clients as “a very polished and accomplished advocate” with an “outstanding legal mind” and “a great ability to understand and execute complex business objectives”. He publishes and speaks widely on international dispute resolution.
How did you come to specialise your practice in international arbitration?
Having had the opportunity to live in Geneva as a child, and having worked and studied in France for several years during and after university, I was determined to have an international career. Because I was always more interested in a disputes practice than a transactional practice, when I left my clerkship on the US Court of Appeals I looked for a firm that would allow me to pursue a career in international arbitration. I chose WilmerHale in large part because I had heard about Gary Born’s practice, and wanted to start my career in international arbitration at the very top of the field.
What is the greatest challenge currently facing arbitration lawyers in the USA?
One of the important challenges confronting international arbitration lawyers in the USA is the misperception in some parts of the world that an international arbitration seated in the USA under an internationally accepted set of institutional rules (such as the ICC, LCIA or ICDR Rules) is nevertheless likely to approximate aspects of a US litigation – at least with respect to disclosure. The challenge is that this misperception may cause international parties to resist seating their international arbitrations in the USA for fear of encountering US-style procedures in any proceeding that may arise. US-based arbitration lawyers have more work to do to make it clear to the global business community that this perception is misplaced. There is a deep bench of arbitration practitioners – particularly in New York, Miami and Washington, DC – who would ensure as procedurally neutral a process as one would see in any other major international arbitration centre, including with respect to disclosure.
As head of the firm’s international arbitration practice in New York, how do you ensure it stands out among competitors in the market?
The international arbitration market in New York continues to develop and become more competitive. Among the ways my firm has continued to stand out on the US side of our practice is by focusing on truly global arbitration matters, and not merely on matters with a strong US nexus. Although we naturally attract a substantial number of arbitrations seated in the USA or governed by US laws, an unusually large part of our US-based arbitration portfolio includes arbitrations seated around the globe and involving non-US laws. This global approach gives us the flexibility to handle whatever international disputes our clients become involved in, and is consistent with our group’s philosophy of maintaining a single, unified arbitration practice, spread out over several global offices, rather than the Balkanised model one sometimes sees in competing practices.
What are your priorities in its development over the next five years?
Over the next five years, we will continue to focus on growing our US-based practice, with a focus on leveraging our expertise in other market-leading practices at the firm such as our IP litigation practice. IP-related arbitrations are on the rise globally and we are well positioned to ride that surge by merging our expertise in international arbitration with our expertise and experience litigating highly complex and high-profile IP-related disputes. We will also continue to exploit similar synergies with other leading practices at the firm.
Are there any advantages in having expertise in both common and civil law jurisdictions as either counsellor or arbitrator?
There are significant advantages in having both common and civil law expertise as a counsellor and arbitrator. The international arbitration cases I handle as counsel almost always involve aspects of both common and civil law regimes – for example, the arbitral seat may be a civil law jurisdiction while the underlying substantive law is New York or English law (or vice versa). I have handled many cases like this, working closely with my civil law colleagues at the firm, to achieve the best results for our clients. Similarly, I have sat in many cases as arbitrator in which a knowledge of both civil and common law principles and practice has been enormously helpful in deciding procedural and substantive issues in the arbitration. Indeed, I believe that some fluency in both common and civil law traditions is essential for any practitioner or arbitrator who wants to operate effectively at the top of this field.
How has the arbitration process developed since you first began your career?
One important development I have noticed since I first began my career in international arbitration almost 20 years ago is the increasing tendency of international arbitration practitioners to rely on a standard set of practices and procedures in each case rather than embrace the inherent flexibility of arbitration and determine the most appropriate procedures for a particular matter. It is natural, on some level, for practitioners to revert to a standard set of rules and procedures; but it is important to resist the trend toward homogenisation and work towards ensuring that each arbitration is conducted on a bespoke basis, and in accordance with the procedures that make the most sense for that particular case.
What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for more experienced lawyers in the field?
Getting those first appointments is always difficult because of an inherent catch-22: you need experience to get arbitral appointments; but you need arbitral appointments to gain experience. My first appointments came from arbitral institutions, which I think is quite common. Most institutions are open to giving a younger arbitration practitioner, without experience as an arbitrator, a chance to sit in a relatively low-value case. It is important for young practitioners to get involved in the major arbitral institutions and to ensure that they interact with the people in those institutions responsible for making arbitral appointments. In addition, it is important for young arbitration practitioners to know other practitioners of about the same vintage practising at other firms. Very often, it is those colleagues and contacts who will reach out down the road when parties are looking to make appointments.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
One of the wonderful aspects of practising in this area is that every new case – whether as counsel or as arbitrator – brings a new set of issues or involves issues that one has seen before in a different context and that must be revisited under the particular circumstances of matter. Because of that, this is an area of constant evolution: I am always learning, thinking through new sets of problems and coming up with new ways to make the arbitral process work better for my clients or for the parties before me. I hope to continue that process, as counsel and as arbitrator, for years to come. In addition to that, one concrete goal is to identify more opportunities for pro bono representations in international arbitration. As a young lawyer working on litigation matters in court, both at WilmerHale and at Simpson Thacher, where I began my career, there were many opportunities to gain advocacy experience and to do good through pro bono representations. I would love to find more ways for both partners and associates to make similar, pro bono contributions in this field.