Questions & Answers
Michael Polkinghorne is a dual-qualified lawyer who heads the Paris office’s arbitration group. He is joint head of the firm’s energy practice and pro bono leader for the Paris office. He has covered disputes involving over 30 countries, and has significant expertise in foreign direct investment, acting for and against states. In recent years, he has been involved in a number of mediations and served in over two dozen cases as arbitrator, predominantly in the energy sector.
What is the most interesting case you have been a part of?
There is no one candidate, although I have a particular soft spot for issues arising under long-term contracts. The work we did in Stockholm arising out of the gas crises of the noughties were great fun.
How do you view your role as an arbitrator?
My role as arbitrator should not be exaggerated. It is in my mind to find out two things: what was agreed and what happened, with a third perhaps being what to do about it. That being said, I think it is absolutely critical for an arbitrator to ensure that whatever the result, both sides feel they have been listened to and understood, and that they can see how and why you came to the conclusions you did.
How does your experience acting as counsel, arbitrator and expert witness enhance your work in each role when handling energy disputes?
I do not think I am unique in terms of relevant experience, but I would like to think that this sector experience saves the parties from having to pay for my education in matters arising in the energy space.
How is the generational shift affecting arbitration proceedings? What do younger arbitrators do differently?
I understand the term generational shift to reflect the fact that practitioners of my (very young) age and generation now find themselves being called upon more frequently to act as arbitrators. I am not sure that there is any major difference in approach between younger and older arbitrators, although the current generation has been brought up in, what I would call, a less indulgent or more aggressive atmosphere concerning the role of an arbitrator; as seen for example in the increase in challenges to arbitral appointees. I certainly see more arbitral secretaries these days but wonder if they have just come out more into the open…
As a dual-qualified lawyer, what would you say are the key differences between civil and common law approaches?
In my experience, the differences are less fundamental than many assume. The inquiry remains, as I said above, one of finding what was agreed and what happened. It goes without saying that a civil law tribunal may undertake a broader inquiry as to what was agreed but the parties’ written agreement remains paramount.
That being said, I do often see what in many respects I view as cultural differences on issues such as document production and some aspects of evidence, although some soft law implements such as the IBA guidelines have in a number of respects levelled the playing field.
How has covid-19 affected your work and the energy sector in France more broadly?
For a start, I would say that 90 per cent of my work involves disputes situated outside of France so I will answer on a broader basis. On the point raised, covid-19 has certainly changed the way we do arbitration at least from a procedural perspective (given the need for virtual hearings), and lockdown in a small apartment has also permitted my dog Parker from participating in an unfortunately high number of those calls.
As for the energy sector as a whole, we are of course seeing a number of force majeure provisions being subjected to scrutiny (much like joint operating agreements during the last oil price crash). In addition, I am seeing a myriad of cases involving hardship or related equitable remedies in light of both covid-19 and state actions to deal with it.
What do you enjoy most about your role as head of pro bono at White & Case’s Paris office?
This is the only work I do that creates any enthusiasm whatsoever on the part of my adolescent children.
How would you like to develop your practice in the near future?
I literally have no idea. The aim I think is to stay in the law until the day, heaven forbid, it’s no longer fun. That may sound trite, but I would like to think I would have the presence of mind to call it a day when that time comes.