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Thought Leaders

Thought Leaders

Loukas Mistelis

Loukas Mistelis

Queen Mary University of LondonSchool of International Arbitration67-69 Lincoln's Inn FieldsLondonEnglandWC2A 3JB

Thought Leader

Thought Leaders - Arbitration 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Loukas Mistelis has "a brilliant intellect" and is "superb as arbitrator, especially in investment disputes". One peer lauds his "amazing arbitration knowledge".

Questions & Answers

Loukas Mistelis is the Clive Schmitthoff professor of transnational law and arbitration; director of the Institute of Transnational Commercial Law, former director of the School of International Arbitration (2002–2019) at Queen Mary, University of London; and founding partner of Mistelis & Haddadin, an arbitration and commercial law consultancy. He is an acknowledged authority in dispute resolution and a high-profile arbitration academic and practitioner. He is listed in WWL: Arbitration (2006–) and The Legal 500 Arbitration Powerlist as a highly regarded individual.

You have extensive experience in both the academic and professional sides of arbitration. What are the key differences between the two, and the advantages offered by operating in both spheres? 

Arbitration is a highly sophisticated and cosmopolitan area of practice. A successful arbitration practitioner will possess strong analytical skills, comparative law sensibility, conflict-of-law expertise and an internationalist approach to understanding legal issues, paired with commercial common sense and ability to immerse themselves quickly in the minutiae of different industry sectors. In so many respects, an arbitration practitioner needs a sound academic approach, excellent written and oral skills, and the ability to make sound decisions. Academics tend to have the space to take a 365-degree view of issues, but may not always be good listeners. Academics who succeed in arbitration are good listeners, and are prepared to make up their mind and be efficient. Arbitrators who succeed in academia bring about a pragmatic approach, true legal realism and a problem-solving approach to academic thinking. 

To what extent is being involved in policy work and political reform consistent with your duty of independence and impartiality as an arbitrator and co-arbitrator? 

Arbitrators do not live in a vacuum; they are citizens of states and this world. Consequently, they have to be aware of policy work and political and legal reform work. However, it is important that arbitrators decide cases on the basis of law in force (de lege lata) rather than the basis of what law could or should be (de lege ferenda). In some cases, there may be scope for a dynamic interpretation of the law (and treaties) but only to the extent this is allowed by the law. I do not see a threat to independence or impartiality, unless of course arbitrators “campaign” and take an active role in designing and promoting policy, legal and political reform – in which case, they may lose their neutrality. In the end, it is often a balancing act, and on balance, it is better to refrain from being active in reform work. This is particularly critical for chairs and sole arbitrators.

What are the main challenges for co-arbitrators who have to manage cost asymmetry between arbitration parties, and what advice do you have for addressing it? 

I experienced this problem for the first time some 15–20 years ago, but it has become more common recently, especially where parties (including state parties and state-owned enterprises) are represented by in-house legal teams, and also in cases where parties are represented by smaller local firms. In this respect, it is critical for arbitrators to remind parties and their counsel that they can charge legal fees for in-house lawyers (very much as they would do for external counsel) applying nominal or other appropriate rates; and in the case of small local firms, it is important to remind them that they should record their time. It is perhaps even useful for a tribunal to warn parties that a cap may be applied to legal fee recovery. Tribunals enjoy great discretion as to how they can allocate costs and fees, but it is important for tribunals to have such discussion with the parties during the early case-management conferences, and it is also essential to adequately reason any decision they make in their awards. 

What do you enjoy most about your role as an arbitrator or co-arbitrator of proceedings? 

The sole arbitrator can be quite independent but also a bit isolated in his role, so being a co-arbitrator or a chair of a three-member tribunal affords arbitrators the “luxury” of discussing the case with their colleagues. There are of course circumstances where chairs can be very “lonely” as well, especially if one of the co-arbitrators appears to be partisan or where the co-arbitrators expect the chair to carry the main burden of the case and disengage before and after the hearing. A sole arbitrator can also be more efficient in terms of delivering awards and procedural decisions. As with everything in life, communication is key, and chair arbitrators and co-arbitrators alike work better if they have good social and communication skills.

Arbitration as a field continues to grow, and – some argue – is therefore becoming increasingly democratised. Do you think this is the case? If so, what impact will this have on arbitration as a practice area? 

The “democratisation” of arbitration is now a reality, and it is largely a positive development as it enables practitioners in smaller jurisdictions to work internationally and represent their clients wherever they may seat their arbitrations. Some 30–40 years ago there was a handful of international law firms working in arbitration and perhaps a dozen English barristers and few continental law professors. Now I see small firms from several jurisdictions appearing in arbitrations, and their ability to represent their clients is very impressive indeed. However, in certain cases they may lack the ability to adhere to certain generally accepted procedural soft law rules/customs and, as a result, they may bring into the arbitration domestic procedural law baggage. There may also be an issue with technically preparing voluminous written submissions or preparing bundles at the expected standard. In terms of democratisation, it is my experience that younger colleagues from small and medium-sized firms in smaller jurisdictions are very talented and well informed, especially if they have completed an LLM abroad or have taken part in one of the moot court competitions.   

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? 

There is a significant (albeit slow) shift to younger practitioners. At the same time, there is quite a bit of congestion as arbitration is often a career one assumes after retirement from a law firm practice or at the bench. I had my first appointment in my early 30s, and that was quite unusual at the time. Nowadays, it is not uncommon for arbitrators to have their first appointment in their 30s. I think that arbitral institutions have a greater role to play in promoting younger arbitration practitioners than experienced lawyers. What experienced lawyers can do is mentor younger colleagues. I pride myself for having taught and mentored many colleagues (as tribunal secretaries and tribunal assistants, as well as in the more traditional sense of mentoring) who do very well now and have developed an excellent reputation for themselves. Opening doors and supporting younger colleagues is a rewarding and fulfilling task.  

How do you think international arbitration proceedings can be improved from the perspective of a co-arbitrator in arbitration proceedings?

Very often, three-member tribunals rely heavily on the chair, especially when the chair is experienced and has the support of a tribunal secretary. If one were to accept this fact, then the operational model should be that the chair has 60 per cent of the fee and the two co-arbitrators receive 20 per cent of the fee each, rather than the often-applied pattern of 40-30-30. One way to move forward would be to assign specific tasks to co-arbitrators in both the drafting of the award and the conduct of aspects of the proceedings. For such a collaborative approach to the conduct of the arbitration, it is essential that the chair is confident that the co-arbitrators are independent and impartial. In a recent case, the very busy chair was not prepared to adopt a collaborative approach, and the fully drafted and largely approved (by the co-arbitrators) award was at the chair’s desk for some eight months. There was even a discussion among the co-arbitrators to issue a majority award without the chair’s participation! As already mentioned, effective communication is critical in arbitration.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?

It is not for me to judge whether my career has been distinguished or not. I consider myself fulfilled and fortunate to have been involved in so many important cases and to have worked with a stellar array of colleagues. Moreover, I have been involved in cases in most important seats and under the auspices of most distinguished arbitral institutions. I was approached a few years ago to act in a state-to-state arbitration but was at the time conflicted. This is something I would very much like to do. 

Global Leader

Arbitration 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Loukas Mistelis has "a brilliant intellect" and is "superb as arbitrator, especially in investment disputes". One peer lauds his "amazing arbitration knowledge".  ​

Biography

Loukas Mistelis is a former director of the School of International Arbitration and the Clive Schmitthoff professor of transnational commercial law and arbitration at Queen Mary University of London. He teaches international commercial arbitration, international investment dispute settlement, energy disputes and ADR on the LLM programme. He is also a senior fellow of the dispute resolution institute at MitchellHamline University School of Law. He practises as an arbitrator and expert in arbitration proceedings from his own boutique consultancy firm, Mistelis and Haddadin.

Professor Mistelis was educated in Greece (LLB, Athens 1991); France (certificate in international and comparative human rights, IIHR, Strasbourg, 1990); Germany (MLE, 1992, Hanover Law School, Germany); and Japan (certificate in Japanese international trade law, Keio University Law School, Tokyo, 1998). He is also a fellow of the Chartered Institute of Arbitrators. He has been a member of the Athens Bar since 1993, and has guest-lectured at many universities, including Columbia, Hamburg, Hamline, Keio, Lisbon, Maastricht, Roma III, LUISS, NYU, NUS, Pepperdine, PUC São Paolo, Sciences Po and Warsaw. He is fluent in English, German and Greek, has a good knowledge of French and a basic knowledge of Polish, Russian and Spanish.

He is chairman of the court at the Cyprus Eurasia Dispute Resolution and Arbitration Centre (CEDRAC) and a Member of the International Board of the Tehran Regional Arbitration Centre. He has been on the ICSID panel of arbitrators since January 2014, as well as on the panels of many other arbitral institutions, including JCAA, KLRCA and CAM-CCBC. His extensive arbitration experience covers ad hoc and ICC, ICSID, LCIA, LMAA, Swiss Chambers, SCC, GCC Arbitration Centre and Moscow cases. Parties in these cases have been from Afghanistan, Argentina, Bangladesh, BVI, Canada, Cyprus, Czech Republic, Egypt, France, Georgia, Germany, Greece, India, Ireland, Korea, Kuwait, Libya, Lithuania, Malaysia, Moldova, Nigeria, Russia, Switzerland, Tajikistan, Turkey, UAE, Ukraine, the United Kingdom and the United States. Subject matters have included foreign investment, sales contracts, share purchase agreements, distribution agreements, defence contracts, infrastructure and construction agreements, finance and project finance, counter-trade, mining, media, aeronautical engineering, joint ventures, natural resources and oil and gas transactions. He acts mainly as an arbitrator but also as a counsel and expert witness in arbitration proceedings.

His publications (in English, German, Greek and Russian) include eight innovative empirical surveys on corporate attitudes towards dispute resolution (2006, 2008, 2010, 2013, 2016 and 2019), more than 60 refereed articles and 14 books, including Mandatory Rules of Law in International Arbitration (2010);

Concise International Arbitration (second edition, 2015); The Role of Arbitration in Shipping (2016); CISG Commentary (second edition, 2018) Arbitrability in International Arbitration (2008); Pervasive Problems in International Arbitration (2006); Commercial Law: Perspectives and Practice (2006); Comparative International Commercial Arbitration (2003); and Foundations and Perspectives of International Trade Law (2001). He is also the editor of the World Arbitration Reporter - The International Encyclopedia of Arbitration Law and Practice (2010). He is a member of the editorial boards of Arbitration International, the International Journal of Arab Arbitration, the Journal of International Dispute Settlement and Global Arbitration Review; and is general editor of the Oxford International Arbitration series and European Investment Law and Arbitration Review.

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