Described by The Legal 500 as “a brilliant strategist who always has absolute command of the subject matter and is always prepared”, Astigarraga is an experienced advocate whose “‘performance at arbitration hearings is simply extraordinary.” Head of Reed Smith’s global arbitration practice, he has served as LCIA vice president and chaired the IBA’s task force on arbitrator conflicts of interest guidelines. He also co-chairs the ICC’s task force on the value of witness evidence.
WHAT MOTIVATED YOU TO SPECIALISE IN ARBITRATION?
I started my career in Miami as a commercial litigation lawyer in US courts. Over time, as Miami began to evolve as a hub for Latin American business, I came to realise two things: first, because of the mixing of legal systems and cultures, international business disputes generally brought more complex and interesting legal issues and challenges; and second, because Spanish was my first language, I was well positioned to assist clients who faced business disputes in the region.
At the time, international arbitration was not widely used in Latin America, but I foresaw the wave and managed to position our firm at the fore of that practice before a lot of other firms realised the potential.
HOW HAS THE ARBITRATION MARKET DEVELOPED SINCE YOU STARTED YOUR CAREER?
It has evolved dramatically. Bilateral investment treaties were not common in Latin America before the 1990s so investment arbitration was nonexistent. International commercial arbitrations were not common either. The arbitration laws in the Latin American countries had not, generally speaking, been modernised. As a result, when disputes started sprouting from the increase in investments in the region, it was the US and European firms that by and large had the skillset required to handle the cases. In the early days of the wave, a few other lawyers and I were very well placed to serve the needs of clients, both the multinationals and the Latin American companies, needing arbitration representation.
Over time, Latin American lawyers, and other US and European lawyers, developed their own experience, and today compete very effectively in that space. However, the volume of business deals, and therefore the number of disputes, has also grown exponentially since then, so we continue to have a thriving practice of interesting cases.
The effect of that growth is that the practice of arbitration has become segmented with more specialisation, be that by region or country, by industry, or by discipline, such as investor-state.
This is a good thing for clients needing representation as it has elevated the level of service and advocacy in Latin American arbitrations.
WHAT DO CLIENTS LOOK FOR WHEN SELECTING AN ARBITRATOR?
It depends on the sophistication of the client. On an instinctive plane, the desire is “for an arbitrator who will rule in their favour”. But sophisticated clients – and with good advice, most clients – realise that is not a good approach. We counsel our clients that what they want is an arbitrator who is smart; will listen carefully; and is diligent, open-minded and fair. I think most good advocates are willing to rely on their ability to communicate and persuade, and will gladly take that mix of key traits anytime.
Depending on the specifics of the case, you can look for industry-specific knowledge, and other elements, but the key factors are usually more important than any others, because a good advocate can explain even complex industry-specific issues to an open-minded, smart arbitrator who listens. Overcoming the lack of the key traits is much more problematic.
HOW DOES REED SMITH DISTINGUISH ITSELF FROM COMPETITORS?
This ties into my answer to the first question about how arbitration has evolved. Early on in the development of international arbitration, certainly in Latin America, an arbitration advocate could rely on knowing the arbitration rules and the institutions, and having good advocacy skills.
But the market has become far more sophisticated and competitive. There will always be a need for lawyers with superior advocacy skills, but as more and more lawyers practise international arbitration, the competition becomes more intense. I am seeing clients become far more sophisticated in their selection of counsel. For example, they are looking for specialisation, be that by industry as I mentioned, or by “specialism”, as they say in the UK, such as investor-state.
For some disputes, especially high-stakes and high-profile matters, clients often look to the exceptional advocate whose gifts are true brilliance and persuasiveness. But more and more, even for major disputes, clients are looking for good advocacy with expertise in the field.
This plays to Reed Smith’s strengths. Reed Smith serves clients in many industries, but has a concentration in five, all of which rely on international arbitration: energy and natural resources; life sciences; transportation (shipping); entertainment; and financial services. The first four use arbitration extensively, with financial services starting to use arbitration more. This enables the firm to offer its clients skilled advocates who bring industry knowledge. That’s a powerful combination.