Lars Markert is a foreign law partner in the international dispute resolution group of Nishimura & Asahi’s Tokyo office. Lars has been involved in numerous international commercial and investment arbitrations as counsel and arbitrator under the arbitration rules of the world’s leading institutions as well as in ad hoc arbitrations under the UNCITRAL Rules. He is on the panel of arbitrators of various arbitral institutions and is a regular speaker and author covering arbitration issues.
What is the current status of investor-state arbitration in the Asia-Pacific market, and how do you think it will change over the next five years?
The current status remains in flux. After the US left the TPP, the CPTPP has become an Asian-led multilateral success story. Its reformed substantive and procedural investment protections could become trend-setting for future agreements globally. Also, some of the largest Asian economies like Japan, China and South Korea remain proponents of the ISDS system, albeit in a modernised fashion. While other significant economies like India and Indonesia have become much more critical of the system, the Asia-Pacific market generally remains thriving, particularly as there is still untapped potential for investor-state arbitration in the region, not least in Japan.
What are your future goals as co-chair of the newly-formed Investment Arbitration Sub-Committee of the Inter-Pacific Bar Association?
The IPBA IASC’s goal is to raise awareness and acceptance of investor-state arbitration in the Asia-Pacific region, within the IPBA membership and beyond. It is designed as a platform for education, networking, research and events. We plan to make a difference by engaging with stakeholders and producing tangible suggestions and solutions. Our inaugural webinar was held jointly with ICSID and UNCITRAL, and a working group is currently drafting suggested improvements to ICSID’s and UNCITRAL’s Draft Code of Conduct for Adjudicators in Investment Arbitration. I encourage everyone to join our efforts.
What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for experienced lawyers?
One step is to alert arbitral institutions about a practitioner’s skills and interest to serve, as institutions are often the ones giving appointments to “first-timers”. The “new normal” era may provide an opportunity for younger practitioners possessing IT skills on top of arbitration experience. Particularly in smaller cases, virtual hearings could become a viable alternative to physical hearings and will provide a selling point for tech-savvy newcomers. Experienced lawyers can train their junior colleagues in the role of tribunal secretaries and should consider younger practitioners when selecting suitable candidates for appointment – as part of a larger diversity drive, including gender and origin.
What do you make of the planned proposals for a multilateral investment court?
I am somewhat sceptical. I accept that it is the states’ sovereign prerogative to shape the investment dispute settlement system as they see fit. However, I am concerned that a very vocal minority of states is driving the debate on the basis of their political agenda, which might not equally apply to others. Significant legal and organisational uncertainty would have to be overcome before the proposal equals or surpasses the current system in a reformed shape. It should be carefully considered whether the solution really lies in dismantling a tried and tested system, the undeniable flaws of which can be adequately addressed by the incremental reforms pursued in parallel to the debate about the MIC.
As an arbitration specialist, what has been your experience of virtual hearings?
My experience of virtual hearings, participating both as counsel and arbitrator, has generally been positive. In many aspects, virtual hearings are not too far apart from physical hearings. The often voiced concern that witnesses can be more easily tampered with did not materialise in practice. However, since this is still somewhat unchartered territory, virtual hearings require substantial time for preparation, in particular with regard to the legal and technical framework to be set up in coordination between the parties and arbitrators. A significant challenge is that virtual hearings can, and often have to be, conducted across several time zones. On top of that, it gets very exhausting staring at a screen for a long time. It is thus essential to have shorter hearing days and additional breaks.
Do you expect measures taken by states to prevent the spread of coronavirus to result in investment treaty claims, and would any such claims be likely to succeed?
Experience shows that significant crises trigger investment treaty claims, and I would be surprised if the coronavirus pandemic were different. There already seem to be instances in which investors have issued notices to states in this regard. As to the chances of success of such claims, the usual lawyers’ answer applies: it depends. States need to be able to protect the public at large in a healthcare emergency, and have to be able take appropriate, necessary and non-discriminatory measures. This right to regulate is now enshrined in many modern investment agreements. However, the issue will become more complicated where states use the pandemic as a convenient pretext to unduly infringe on foreign investors’ rights.
In what ways does Nishimura & Asahi distinguish itself in the arbitration space?
With over 30 years of experience, we are the leading Japanese law firm for international arbitration. The group and many of our partners have won accolades and recognition for handling large and complex international arbitrations. We have the largest and most diverse arbitration team of any Japanese law firm, and arguably, any firm in Japan. Our arbitration group works seamlessly between Tokyo, Singapore and New York in teams composed of Japanese and foreign lawyers from various jurisdictions. I count myself lucky to be part of it and am determined to make it even more the market leader.
"One of the best arbitration lawyers in the world with a deep knowledge of investment treaty arbitration"
"One of the stars in the field"
"Lars is a great lawyer with a tremendous legal and academic background - he excels in bridging Japanese culture with foreign clients"
"So impressed by his successes in Japan"
"Sharp mind, very intelligent, with a hands-on approach"
Lars Markert is a foreign law partner in the international dispute resolution group of leading Japanese firm Nishimura & Asahi based in Tokyo. In 2018, Nishimura & Asahi became the first and to date only Japanese law firm to be included in Global Arbitration Review’s GAR 100.
Lars’ practice focuses on international commercial and investment arbitration. He represents Japanese and other Asian clients in German and European law matters, and advises German and other European clients on their business activities in Asia. Lars’ experience comprises contentious proceedings involving post-M&A, commercial, manufacturing, construction and distribution matters, in industries such as life sciences, automotive and energy. Lars has special expertise in matters involving governments, representing both foreign investors and sovereign states in the area of foreign direct investment and public international law, including related negotiations and investor-state disputes. He has acted as counsel in numerous proceedings under arbitration rules of institutions such as the DIS, ICC, Swiss Chambers, NAI, ICDR, KCAB, JCAA, SIAC and ICSID, as well as under the UNCITRAL Arbitration Rules. Lars also sits as an arbitrator.
Lars co-chairs the Investment Arbitration Sub-Committee of the Inter-Pacific Bar Association and frequently publishes, speaks and lectures on commercial and investment arbitration. He is commended in leading directories for his expertise. Lars received the 2020 Lexology Client Choice award for “Arbitration and ADR” in Japan and is a Who’s Who Legal Global Elite Thought Leader for international arbitration in the Asia-Pacific region, having been described as “‘an excellent and courageous arbitration practitioner’ with vast experience in investor state disputes.”