Philippe Pinsolle is the head of Quinn Emanuel Urquhart & Sullivan LLP’s international arbitration in continental Europe, based in Geneva. Philippe has over 25 years of experience as counsel, expert and arbitrator in international arbitration including commercial arbitration, investment treaty arbitration, energy and major infrastructures disputes. He has been involved in arbitrations under the auspices of virtually all major arbitration institutions. Philippe is currently senior vice chair of the IBA arbitration committee and will become co-chair in 2020.
What attracted you to a career in the law?
I initially studied business and obtained an MBA from a top French business school, but I was not really interested in the academic aspect of business. Business is fascinating but, with very few exceptions, it is not really an academic topic. By contrast, I was intellectually interested by the law. I therefore naturally went to the law university and I have never regretted that choice. That said, my business training proved extremely helpful for international arbitration, especially quantum issues.
What do you enjoy most about your role as the firm’s head of arbitration for continental Europe?
Titles do not mean much in our firm. We are organised in a rather horizontal fashion. What I enjoy about my practice is interacting with sophisticated clients and other arbitration (and non-arbitration) practitioners. We have a uniquely deep bench at Quinn Emanuel, with top litigators on every conceivable topic. Creating ad hoc teams dedicated to a given case, defining strategy with the team and the client and implementing it in the most efficient way are very rewarding professional moments.
How do you envisage global arbitration will adapt and deal with the growing role of third-party funding?
When third-party funding was introduced, many viewed it as both a great opportunity and a potential danger. The great opportunity was the possibility for meritorious cases that would not otherwise proceed to be tried, often successfully. The potential danger came from the fear that, at some point, third-party funders would dominate the market and start squeezing lawyers’ fees, the way the social security did with doctors. That fear, of course, was exaggerated. Perhaps because of competition, or because third-party funding is often expensive, it does not dominate the market today. Nonetheless, it is an important factor to which arbitration had to adapt. As is often the case, paths are diverging between commercial arbitration and investment arbitration. Investment arbitration leaning towards full transparency, while commercial arbitration operates more on a case-by-case basis.
What factors would you say are driving the growing doubts surrounding the legitimacy of investment arbitration?
Investment arbitration is a by-product of investment protection – and investment protection is not exactly the flavour of the month these days. It is no longer acceptable to the general public that a facility of an industrial site belonging to foreign parties should enjoy greater protection than a comparable site belonging to local parties. Protectionism and nationalism are dominant today, at least in some jurisdictions. As a result, investment arbitration suffers from collateral damages. This situation will not be solved by tweaking the mechanism of investment arbitration because it is a fundamental concern. People distrust investment protection and they distrust investment arbitration as a result, not necessarily knowing what it is.
In what ways are you seeing this increasing concern impact the world of commercial arbitration?
The discussion on investment arbitration is not a technical discussion, it is a policy discussion. The risk, however, is a spill-over effect on commercial arbitration. Commercial arbitration is unaffected by the concerns surrounding investment arbitration. States are generally absent (except in their commercial capacity). Disputes rarely revolve around governmental policies or regulations, but focus on contract interpretation. Commercial arbitration has been for decades the most efficient mechanism for resolving disputes in international business matters and this should continue.
How does the need for transparency differ when looking at investment and commercial arbitration?
What is good for investment arbitration may not be good for commercial arbitration and vice versa. The debate over confidentiality and transparency is a good example of this. Transparency is generally necessary in investment arbitration (though some states would disagree, as was evidenced by the recent discussion at the UNCITRAL on this issue). By contrast, confidentiality is often needed in commercial arbitration to protect business secrets, such as intellectual property or to avoid sharing information in breach of antitrust laws. Put simply, confidentiality is not a dirty word in commercial arbitration.
How is the generational shift in arbitration practitioners impacting the landscape of the legal market?
Each generation of successful arbitration practitioners has a tendency to sterilise the immediate next one. As a result, you see a renewal every 15 years or so. The next one will occur within the next 10 years.
What is the greatest piece of career advice you have received?
“Keep learning.” Look at what others do around you and learn from them. There is always something to learn from an arbitration hearing.
Philippe Pinsolle is the head of Quinn Emanuel Urquhart & Sullivan LLP’s international arbitration in continental Europe, based in Geneva. Philippe has over 25 years of experience as counsel, expert and arbitrator in international arbitration including commercial arbitration, investment treaty arbitration, energy and major infrastructures disputes. He has been involved in arbitrations under the auspices of virtually all major arbitration institutions. Philippe is currently senior vice chair of the IBA arbitration committee.
WHAT MOTIVATED YOU TO PURSUE A CAREER IN ARBITRATION?
International arbitration requires a combination of top litigation skills, international sensitivity and deep knowledge of the relevant industry. That makes it a uniquely attractive proposition for any young lawyer wishing to engage in international contentious work – and that made it a very attractive proposition for me at a time at which international arbitration was relatively exotic.
WHAT QUALITIES MAKE FOR A GOOD ARBITRATOR?
Authority, hard work and availability. Most importantly, the ability to listen and change one’s mind when circumstances so warrant.
HOW HAS THE MARKET CHANGED SINCE YOU FIRST STARTED PRACTISING?
Certain things have not fundamentally changed. The market is still dominated by handful of top firms, but they are more numerous and more diverse. The same is true, to some degree, of leading individuals. Certain things remain and narcissism is still frequently encountered among arbitration practitioners. The real change came with the explosion of investment arbitration. Investment arbitration is a different species because it concerns sovereigns and attracts public attention. It has specificities. It is under constant scrutiny and concerns have been raised regarding its legitimacy. One cannot ignore this reality, but it would be a mistake to conflate investment arbitration and commercial arbitration and think that the same solutions apply to both. This is not true. What is good for investment arbitration may not be good for commercial arbitration and vice versa. The debate over confidentiality and transparency is a good example of this situation.
WHAT MAKES QUINN EMANUEL STAND OUT FROM ITS COMPETITORS?
Quinn Emanuel is the largest law firm in the world dedicated to commercial disputes and has one of the five largest litigation practices in the world. We try more major commercial cases than any other law firm. Each year, we have multiple cases pursuing or defending against a claim for over US$1 billion in damages. Our partners have tried over 2,500 cases and won 88 per cent of them. We are litigation-only and we have the deepest bench of dispute specialists available in the marketplace. Whatever the underlying issue in your arbitration, we are likely to have specific expertise on it.
FEES REMAIN A CENTRAL AREA OF DISCUSSION IN ARBITRATION. WHAT SHAPE IS THIS DEBATE TAKING IN YOUR REGION AND HOW IS IT AFFECTING LAWYERS IN THE SPACE?
Fees are an eternal debate and there is no easy answer to it. What matters is value for money – everybody agrees about that – but the question is, how do you measure it in a major dispute? I have seen more and more hybrid arrangements recently, with a significant fixed portion that gives predictability and a success-based additional portion meant to align interests.
SOURCES HAVE REPORTED AN INCREASING PUSH FROM THE ICC TO PUBLISH AWARDS ON COMMERCIAL MATTERS. WHAT ARE YOUR THOUGHTS ON THIS?
This push is a reality. The ICC has now put in place an opt-out system. Absent an objection, the ICC will publish awards two years after they are rendered. This is a potential time-bomb as many companies may not think about opting out and may nonetheless not want their award to be published. In addition, data aggregators will use the information found in the published awards and make money with that information, capturing value that arguably belongs to the ICC. This change seems dictated by considerations that apply predominantly to investment arbitration, but the ICC is not an institution that handles primarily investment arbitration. The ICC is the go-to institution for commercial arbitrations and confidentiality is a very legitimate concern in major commercial disputes. Let’s hope that the ICC does not lose sight of this reality and modifies its practice, for example, by introducing an opt-in system.
LOOKING BACK OVER YOUR CAREER, WHAT HAS BEEN YOUR PROUDEST ACHIEVEMENT?
Each case where the result exceeds the expectation is a proud moment, and of course, the reverse is true. If you are lucky, the former situation happens more often than the latter. The proudest moment is probably when you can achieve this result in several cases in a row.
WHAT IS THE BEST PIECE OF ADVICE YOU HAVE EVER RECEIVED?
To the extent that the question is directed at advice in relation to international arbitration, the best advice I received is “keep learning.” Look at what others do around you and learn from them. There is always something to learn from an arbitration hearing.
The "outstanding" Philippe Pinsolle is "a very well-known and experienced lawyer" with extensive experience in energy and construction disputes.
Philippe Pinsolle is the head of international arbitration for continental Europe. He has acted as counsel in more than 220 international arbitrations, with a particular focus on investor-state arbitrations and commercial disputes involving the energy, power, oil and gas, construction and defence industries. He has been involved in arbitrations under the auspices of virtually all major arbitration institutions, as well as in ad hoc cases under the UNCITRAL rules or otherwise. He has also served as arbitrator in more than 45 cases, as well as expert witness on arbitration and French law issues.
Chambers Global reports that clients have described him as an “outstanding strategist” with a “great tactical sense”. His “pragmatic approach, great intellect and technical prowess set him apart”. Philippe has also been praised as an “oil and gas specialist”. Global Arbitration Review wrote in its GAR 100 survey that “Philippe Pinsolle is by many accounts a leader in his generation in Paris – possibly the leader” and Who’s Who Legal said: “Philippe Pinsolle is “a big player in both commercial and investment-treaty arbitrations” according to sources who note, “He is one of the absolute masters in the field.” He is regarded as “a great oral advocate” who is “one of the most impressive names around at the moment.'"
Chambers Global has ranked Philippe Band 1 for international arbitration. He is also ranked in this publication for Africa-wide dispute resolution and global-wide public international law.