Mark McNeill is "an excellent strategist and great with clients" when handling commercial and investment arbitrations in the IP, energy and pharmaceutical sectors.
For over 21 years, Mark McNeill has represented companies, states and individuals in numerous commercial and investment treaty arbitrations, including in matters involving intellectual property, technology, nuclear construction, pharmaceuticals, business combinations, oil and gas, taxation, mining and insurance. He also serves as an arbitrator and lectures on international investment arbitration at Sciences Po Law School in Paris. He is admitted to practise in New York, Paris, and England and Wales. Mark previously served as an attorney-adviser in the Office of the Legal Adviser of the US Department of State, where he represented the USA in investor-state arbitrations.
What inspired you to pursue a legal career?
Before law school, I took coursework in international law at Johns Hopkins SAIS and was immediately drawn to international disputes, particularly inter-state disputes before the ICJ and a relatively undiscovered facility for resolving investment disputes called ICSID.
What do you enjoy most about practising international arbitration?
The relentless variety. Each case presents a fascinating new combination of parties, counsel, arbitrators, sectors, applicable law, substantive issues, legal issues and venue.
Your practice spans a range of sectors from energy to life sciences. To what extent is sector-specific knowledge on the part of the arbitrator important when handling commercial disputes?
It depends on the given dispute, but often sector-specific knowledge is key. Parties sometimes mistakenly believe, for example, that for an oil and gas arbitration seated in Stockholm, their priority should be appointing a local Swedish lawyer, whereas what they usually need first and foremost is market-leading sector expertise, with local knowledge of the rules being a secondary factor.
How has your previous experience as an attorney-adviser in the Office of the Legal Adviser in the US Department of State enhanced your work in private practice?
In 2003, when I joined the State Department, it was still early days for investor-state arbitration. I had the good fortune of working on some of the seminal NAFTA cases. I learned first-hand the challenges faced by states in organising themselves to successfully defend against investment treaty claims (the US government still boasts an unblemished record in that regard). I was also fortunate to observe the written and oral advocacy of some very talented colleagues – hopefully some small bit rubbed off!
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?
A key factor is to cultivate broad contacts and friendships among one’s own generation of arbitration practitioners, many of whom will evolve into the next generation of leaders in the field and will be in a position to make appointments.
Another common stepping stone is to take appointments as tribunal secretary, which gives invaluable insights from the “inside”.
At the same time, experienced lawyers have an obligation to look for opportunities to give young practitioners more opportunities to take a substantive role on cases, particularly at hearings, and to appoint young practitioners as arbitrators on smaller matters. Notably, in its recently revised non-administered arbitration rules, CPR pioneered a “Young Lawyer” rule that aims to increase opportunities for junior lawyers to take a more active role in arbitration hearings.
What factors would you say are driving the growing doubts surrounding the legitimacy of investment arbitration?
Much of the so-called “backlash” against investment arbitration stems from a perception, particularly among developing countries, and perhaps among states that have lost important cases, that the process is skewed against them. One oft-heard complaint is that arbitrators, who sometimes hail from the commercial arbitration world, are insufficiently sensitive to the public-law nature of the disputes before them and are prone to over-reaching. Whether these perceptions are valid or not, the effects are real. Among other things, some states have terminated their investment treaties, even at the cost of protecting their own investors abroad.
In your opinion, where does the future of investment treaty arbitration lie?
What is clear is that change is coming inevitably. Precisely when and how is less clear. But now we have serious reform proposals on the table which are gaining broad support, foremost of which is the proposed establishment of a standing court for investment disputes. A standing court promises investment arbitration institutionalised credibility similar to that of the WTO.
What is the best piece of career advice you have received?
Don’t underestimate the power of simplicity. Arbitrators are busy people. Tell them upfront in straightforward terms what you want and why you should get it.
Focus on what matters. Often only a small handful of legal or factual issues will really make the difference in the outcome of a case. Learning to identify them early and focus more attention on them will make you a better – not to mention more efficient – advocate and arbitrator.