Nicolas Wiegand is managing partner of CMS Hong Kong. He acts as counsel and arbitrator throughout Asia-Pacific, Europe and the Middle East. Nicolas has handled over 100 international commercial arbitrations under all major arbitration rules as well as numerous investment treaty claims (ICSID, UNCITRAL). He is an author and frequent speaker on international arbitration matters, and on the panels of arbitrators of the most important arbitral institutions.
WHAT QUALITIES MAKE FOR A SUCCESSFUL COUNSEL AND ARBITRATOR?
In one day, a practitioner may need to speak with an expert in construction, discuss complex issues in a foreign law and research the means of enforcing an award in multiple jurisdictions.
Certain attributes would therefore favour a successful career in international arbitration, such as being curious and unbiased, internationally minded and open to opportunities.
There are some obvious factors to look for in an arbitrator. Availability, integrity, intelligence, collegiality, past arbitration experience and specialist knowledge relevant to the subject matter of the dispute are all vital. Likewise, arbitrators and counsel need to be able to communicate well, command respect and be courteous and tactful.
Other factors are equally important for all arbitration practitioners, such as cultural sensitivity; an ability to understand technical evidence; efﬁcient attitudes to procedural matters including document production; diplomacy; and business acumen.
Above all, international arbitration is a people’s business. In order to be successful as counsel or arbitrator, you need to be able to manoeuvre among the members of the international arbitration community and deal with clients that are wary of high costs and lengthy proceedings.
THERE HAS BEEN AN INCREASING NUMBER OF INVESTMENT TREATY DISPUTES IN RECENT YEARS, ESPECIALLY IN ASIA. HOW IS THIS AFFECTING YOUR PRACTICE?
Despite lingering discontent in certain regions of Asia with investor-state dispute settlement (ISDS), Asian countries are playing an increasingly significant role in the development of ISDS law and policy.
China’s Belt and Road Initiative (BRI), the signing of landmark trade deals such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the legalisation of third-party funding in Hong Kong and Singapore all make it likely that the demand for ISDS advice in the Asia-Pacific region will only grow.
We have maintained a reputation for investor-state arbitration representations, having advised investors and governments in high-profile, complex and sensitive investment treaty matters. With the rise of ISDS in Asia, our practice has certainly seen a strong shift towards more work in this area, and as such more specialists being hired and joining our team.
WHAT ADVANTAGES DOES HONG KONG OFFER AS A HUB FOR ARBITRATION IN THE REGION?
Hong Kong is a cosmopolitan cultural delight with ready access to mainland China.
Under the Hong Kong Arbitration Ordinance, both local and international arbitrations follow the same set of rules, hence providing a unified regime based on the UNCITRAL Model Law, along with a number of modifications adapted for Hong Kong. This aligns Hong Kong’s arbitration regime with international practice and reduces confusion over regime differences.
Hong Kong has its own home-grown arbitration body: the HKIAC, which has been designated the appointing body under the Arbitration Ordinance to appoint and determine the number of arbitrators where the parties to a dispute are unable to agree.
Some argue mainland courts are more likely to enforce arbitral awards coming from Hong Kong than from foreign jurisdictions. In any case, the Arrangement Concerning Mutual Enforcement of Arbitral Awards (the Arrangement), made between Hong Kong and China, has proven very effective in enforcing awards, and mainland China has taken steps to ensure international arbitration proceedings are given protections.
In April 2019, the Hong Kong government and the Supreme People’s Court in China have signed an Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region.
This arrangement is a milestone as it provides, for the first time, for the enforcement of interim measures in foreign arbitral proceedings in Mainland China. This makes Hong Kong an even more attractive seat for arbitrations involving business contracts with Chinese parties.
Finally, the Hong Kong government is backing the Electronic Business-Related Arbitration and Mediation Centre; this will cut arbitration costs by removing face-to-face meetings and long-distance travel. Pending approval, it could launch in late 2019 or early 2020. Hong Kong will be the first jurisdiction in the world providing dispute resolution services online.
HOW WILL THE ONGOING DEVELOPMENT OF THE BELT AND ROAD INITIATIVE (BRI) SHAPE THE LEGAL MARKET?
The Chinese and Hong Kong governments have indicated their support for Hong Kong to play a leading role in international ADR, and specifically for the BRI. Specific measures have been taken by the authorities and legal sector in this regard. As such, interest in and impact through the BRI are already high.
Moreover, with the above-mentioned new arrangement for enforcement of interim measures, Hong Kong will certainly see even stronger demand for dispute resolution services relating to the BRI and Chinese companies. There can be no doubt that the BRI will feed the market and legal industry with a steady workflow for years to come.
AS HEAD OF THE FIRM’S HONG KONG OFFICE, WHAT DO YOU BELIEVE TO BE THE KEY CHALLENGES AND OPPORTUNITIES MOVING FORWARD?
We live in economically and politically turbulent times – usually times when disputes arise more frequently than in boom periods. These effects will boost the arbitration market in Hong Kong – obviously a major opportunity for our firm, which combines knowledge of civil law and culture, attracting Chinese and other civil law clients, with in-depth local and regional qualification and experience at the common law arbitration venues of Hong Kong and Singapore, among others.
The key challenge will be to keep arbitration attractive for the users, who continue to criticise the time and cost of arbitration proceedings. Arbitrators and counsel alike need to start taking this issue seriously, instead of only talking about it at conferences. For our Hong Kong office specifically, we need to reassure the overseas users of the quality and suitability of Hong Kong as an arbitral venue for any kind of international dispute.
WHAT ADVICE WOULD YOU GIVE TO YOUNGER PRACTITIONERS HOPING TO ONE DAY BE IN YOUR POSITION?
Creativity, self-confidence and being ready to step up when an opportunity comes along will be key. Seeing the amazing group of enthusiastic young arbitration practitioners out there, I don’t think there will be a lack of talent anytime soon.
Nicolas Wiegand wins acclaims from peers across the globe, who say he is "an extremely clever practitioner with strong experience in the field".
Nicolas Wiegand acts as counsel and arbitrator throughout Asia Pacific, Europe, the United States and the Middle East. He has handled well over 100 international commercial arbitrations under all major arbitration rules (mainly ICC, HKIAC, UNCITRAL, SIAC, KCAB and DIS, but also AAA, LCIA, DIAC, ASA,
VIAC, SCC and others) as well as numerous investment treaty claims (ICSID, UNCITRAL).
His most recent practice has centred on disputes relating to joint venture agreements, construction/major projects, IP and IT, M&A transactions, sales, distribution and service agreements, and gas/energy supply agreements. He additionally specialises in investor-state disputes. The focus of his work is on Asia and Asia-related disputes; he has advised on numerous high-profile cases at the main arbitration hubs for companies from Asia Pacific, Europe, the United States and beyond.
At CMS, Nicolas leads a team of disputes lawyers specialised in international arbitration, with a strong team focus on corporate, trade and infrastructure disputes as well as investor-state arbitration.
Nicolas has previously worked in Australia, Switzerland and the US. He heads up the CMS office in Hong Kong but also spends significant time in the CMS Singapore and European offices.
Nicolas regularly sits as arbitrator at the main international arbitration hubs. He is on the panel of arbitrators of the most important arbitral institutions worldwide. He regularly gives talks on arbitration-related matters at international conferences and conducts training courses for the HKIAC and other institutions.
Nicolas has to date sat as arbitrator in 27 commercial arbitrations (21 institutional, six ad hoc); he was appointed chairman on four occasions, sole arbitrator in 14 arbitrations and co-arbitrator in nine proceedings.