Louis B Kimmelman
Office:
787 Seventh Avenue
10019
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New York
State:
New York
Country:
USA
Tel:
+1 212 839 7322
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+1 212 839 5599

Questions and Answers:

Who's Who Legal Thought Leaders - Arbitration

Benno Kimmelman is co-leader of the Sidley’s global international arbitration practice. He focuses on arbitration of complex commercial, construction and investment treaty disputes, acting as both counsel and arbitrator. He also appears in US federal courts in award enforcement proceedings and in aid of the arbitration process. Benno represents US and foreign clients, including sovereign entities, in resolving international disputes. He teaches international commercial arbitration at Brooklyn Law School and Georgetown University Law Center.

WHY DID YOU CHOOSE TO PURSUE A CAREER IN INTERNATIONAL ARBITRATION?

I grew up in a family where foreign languages were spoken more than English and where extended family members lived outside the United States. My foreign roots inspired me to seek a profession that would connect me with other cultures and countries. After law school, I had the opportunity to clerk for a US federal court judge who had been an outstanding trial lawyer. He encouraged me to become a litigator. As a young litigator based in New York, I had the opportunity to represent foreign parties in lawsuits filed in US courts, which allowed me to combine my interest in international work and advocacy. One of those foreign parties had a dispute subject to arbitration, and that became my first arbitration. That case led me down the path to a career in international arbitration.

WHAT MAKES SIDLEY AUSTIN’S INTERNATIONAL ARBITRATION PRACTICE STAND OUT FROM ITS COMPETITORS?

Sidley’s international arbitration practice stands out from its competitors because of a unique combination

of talent and experience. Sidley has a diverse and talented team of advocates and arbitrators. They are fluent in multiple languages and are experienced in common law and civil law systems. Sidley has one of the oldest and leading treaty arbitration practices in the world. We represent both investors and states in treaty disputes and have achieved successful results for both. Sidley also has a broad commercial arbitration practice that has won high-stakes disputes in the Americas, Europe and Asia for commercial parties and sovereign entities. Finally, when our clients obtain successful arbitral awards, we have used our litigation skills to turn those awards into judicial judgments and to pursue assets to obtain payment.

WHAT IS THE GREATEST CHALLENGE YOU HAVE FACED WHILE ACTING AS LEAD COUNSEL IN AN ARBITRATION?

My greatest challenge as lead counsel in an award enforcement proceeding occurred when a foreign state enacted criminal legislation to threaten us with criminal sanctions and thereby deter us from pursuing the proceeding on behalf of our client. I needed to balance the personal safety and potential exposure of our team members and our firm with our professional responsibility to our client.

TO WHAT EXTENT IS IT PREFERABLE TO CONDUCT AN ARBITRATION UNDER INSTITUTIONAL RULES AS OPPOSED TO AD HOC?

When parties have a limited prior relationship, it is usually better to select institutional arbitration for resolving their disputes. The institution can ensure that the arbitration process moves forward and is not derailed. In contrast, when parties have a long-standing relationship and have used the arbitration process before, ad hoc arbitration can be efficient and effective. Parties who have a history of working together and of arbitrating disputes should know how to conduct a case and have less need for institutional support.

WHAT MAKES THE US A COMPETITIVE JURISDICTION WHEN IT COMES TO CHOOSING WHERE TO CONDUCT AN INTERNATIONAL ARBITRATION?

Our courts have a well-developed case law with respect to international arbitration that makes the US a strongly pro-arbitration jurisdiction. There are limited circumstances under which a court can play a role prior to the commencement of arbitration. Once an arbitration is pending, a court cannot interfere in the arbitration process. Finally, after an award is rendered, US courts have narrowly interpreted the defences to enforcement of an award under the New York Convention. International arbitration awards are routinely enforced in US courts in what is usually an expedited proceeding.

TO WHAT EXTENT IS IT HELPFUL FOR AN ARBITRATOR TO HAVE SOME LEVEL OF SPECIALIST INDUSTRY KNOWLEDGE WHEN IT COMES TO CONDUCTING SECTOR-SPECIFIC ARBITRATIONS?

In some cases, industry knowledge can make the initial steps in an arbitration easier. However, industry knowledge can be quickly learned by an arbitrator. There is great value in having an arbitrator approach a dispute with fresh eyes and an inquisitive mind and great respect for the parties’ agreement.

WHAT ADVICE DO YOU GIVE TO ASPIRING ARBITRATORS IN YOUR CLASSES AT BROOKLYN LAW SCHOOL AND GEORGETOWN UNIVERSITY?

I urge students who want to be arbitrators to begin by learning a domestic legal system and how to litigate disputes in that system. With this foundation, a lawyer can then learn the law and procedure of arbitration and can gain practical experience in actually representing parties in the arbitration process. I believe an arbitrator gains invaluable experience and perspective from having had the opportunity to act as counsel in representing parties in arbitration.    

YOU HAVE ESTABLISHED A STRONG AND HIGHLY RESPECTED PRACTICE IN INTERNATIONAL ARBITRATION. HOW DO YOU PLAN TO CONTINUE TO DEVELOP IT IN THE FUTURE?

I would like to continue with a plan that I have followed over the years. The first component is to focus on client service – providing the best possible advice and guidance to clients and obtaining the best possible results in their cases. The second is teaching international arbitration to students – teaching keeps me current on legal developments and requires me to question the assumptions that we make about arbitration. The third element is writing and speaking, which is important in being an active part of the thought leadership process in the field. Finally, I plan to continue expanding my work
as an arbitrator under all the major international arbitration rules.

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Nominees have been selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide. Only specialists who have met independent international research criteria are listed.

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