Lars Markert is a foreign law partner in the international dispute resolution group of Nishimura & Asahi’s Tokyo office. Lars has been involved in 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.
DESCRIBE YOUR CAREER TO DATE.
I am a German lawyer by training and have also studied in France (maîtrise at Aix-en-Provence) and the US (LLM at Georgetown). After obtaining my LLM in 2006, I worked for one-and-a-half years in New York, where I had the great fortune of being part of a team advising on an investment arbitration. Upon returning to Germany, I completed my PhD on investment arbitration and joined Gleiss Lutz in Stuttgart in 2007. In 2008, we became involved in an ICSID case, which – together with many commercial arbitrations – kept me busy for almost a decade. In 2018, I joined Nishimura & Asahi, Japan’s leading and biggest law firm, as a foreign law partner in the international disputes team.
WHY DID YOU DECIDE TO RELOCATE TO TOKYO?
I always had an interest in Japan and from 2012 to 2014 Gleiss Lutz sent me on secondment to Nishimura & Asahi in Tokyo. I had the opportunity to work on extremely interesting arbitration cases and was very impressed by the firm’s team and the dynamic Asian arbitration market. Given that I continued co-counselling on arbitrations with Nishimura & Asahi in the three years after my return to Gleiss Lutz, it was perhaps unsurprising that I was eventually asked to return. It was not an easy decision after many years at a great firm like Gleiss Lutz, but Nishimura & Asahi’s team and caseload, combined with the vibrant arbitration community in Japan and other Asian jurisdictions, felt like just too good an opportunity to pass up. Now a year in, I have not once regretted my decision.
WHAT MAKES JAPAN AN ATTRACTIVE JURISDICTION FOR INTERNATIONAL ARBITRATION?
Japan basically has all the hallmarks of an attractive jurisdiction, ie, a fairly
modern arbitration law based on the UNCITRAL Model Law, and an arbitration- and enforcement-friendly judiciary. It also is undisputed that it has one of the best infrastructures in the world. Recent developments position Japan to finally narrow the gap with leading arbitral jurisdictions in Asia, such as Singapore and Hong Kong. The Japan International Dispute Resolution Centre set up modern hearing facilities in Osaka in 2018 and will replicate this in Tokyo in 2020. This offering will be complemented by a new International Mediation Centre in Kyoto. Also, the Japanese government has taken interest in the promotion of arbitration, and clarifications to the law allowing foreign lawyers’ extended representation rights in Japan-seated arbitrations are under way.
WHAT DO YOU MOST ENJOY ABOUT WORKING IN ARBITRATION?
The people and the cases. The arbitration community is smart, international, polyglot and generally collaborative. It is therefore fun to work or argue with such colleagues on a daily basis. The cases are enjoyable because each one presents new challenges in fact-finding, as well as complicated questions on multi-jurisdictional procedural and substantive legal issues, providing daily opportunities to grow professionally and personally.
HOW HAS THE FIELD OF INVESTMENT ARBITRATION EVOLVED SINCE YOU BECAME INVOLVED WITH IT?
When I started out in the early 2000s, practically nobody outside a small legal community knew what it was. Some 10 to 15 years later, cab drivers (and my mother!) explain to me why investor-state dispute settlement is bad. It has obviously become necessary to explain the benefits of investment arbitration as not only a legal but also a political and economic matter.
DO YOU SEE A PARTICULAR ROLE FOR CIVIL LAW LAWYERS IN ASIAN ARBITRATIONS?
Given that many Asian jurisdictions have a civil law foundation, it is remarkable that international arbitration in the region sometimes seems to be strongly influenced by common law practices. As regional practitioners become more familiar with the field, I see increased confidence in introducing civil law elements into the proceedings, such as proactive case management, shorter hearings or limited document production. Experience with approaches successfully employed in European arbitrations can certainly strengthen this trend – not least as it is supported by the recent publication of the Prague Rules. Ultimately, the issue should not be so much about the civil law/common law “divide”, but rather about the parties’ informed choice of procedural alternatives.
HOW DO YOU SEE YOUR PRACTICE DEVELOPING OVER THE NEXT FIVE YEARS?
I think Nishimura & Asahi, with its two senior disputes partners Hiroyuki Tezuka and Akihiro Hironaka, my younger partners Yutaro Kawabata and Chie Nakahara, and its international team of lawyers, is ideally placed to lead the Japanese arbitration market. I see my role in assisting the firm to achieve this goal, and for it to run more and more arbitration cases on its own. Also, I would not be surprised if we see more investment arbitration work in the near future – considering the Comprehensive and Progressive Agreement for Trans-Pacific Partnership’s entry into force for Japan, and given that the significant amount of Japanese foreign investments is quite disproportionate to the few cases filed so far. Thus, I am quite optimistic about the next five years.