Richard Happ is a member of the Hamburg Bar and a partner of Luther Rechtsanwaltsgesellschaft. In addition to 10 offices in Germany, the firm has offices in Brussels, London, Luxembourg, Singapore, Shanghai and Yangoon. He has represented clients in highly controversial cases, such as the two ICSID cases against Germany, and has extensively published in the field of investment arbitration. This includes a commentary on the ICSID arbitration rules and two volumes of the ICSID jurisprudence digest.
What inspired you to pursue a career in the law?
My father. He had a small building company and I learned early on the value of good legal representation – and the harm that bad lawyers can cause.
What did you find most challenging about starting out in arbitration?
Understanding that the practice of arbitration begins where the textbooks and rule commentaries end. And coping with the different understandings of certain concepts not only by common lawyers and civil lawyers, but also among civil lawyers of different jurisdictions.
How does Luther Rechtsanwaltsgesellschaft distinguish itself from the competition?
There are several aspects. One of them is the large number of Asian offices. Luther now has 20 offices in 10 countries, including Singapore, China and Myanmar. Another aspect is the focus on five key industries: energy; healthcare and life sciences; mobility and logistics; real estate and infrastructure; and IT and telecoms.
How has the nature of arbitration proceedings changed since you started practising?
The – laudable – effort by the IBA to codify best practices and standards in international arbitration on the one hand makes life easier, but on the other hand seems to make arbitration much more technical and formalised. Since this was what senior partners told me when I started practising, I wonder whether I am just getting old.
What are the most common sources of disputes currently and how do you think clients can minimise this?
The most common sources of disputes I am faced with arise out of overly complex contracts that are concluded under time pressure after insufficient due diligence. Clients should spend more time questioning their own assumptions before concluding a contract. The old saying “an ounce of prevention is worth a pound of cure” still holds true.
What is your view of the application of mandatory law in international arbitrations?
It’s important but overhyped. In 20 years in practice I have not seen one successful objection, either during the arbitration or in enforcement, based on mandatory law. That applies at least in jurisdictions with a properly functioning legal system.
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?
Gaining practical experience and establishing contacts via networking is of course essential. But an important factor is to be recognised as someone the parties can trust. Experienced lawyers can help by appointing younger arbitrators for small cases, and recommending them to others for appointments, if asked.
What advice would you give to younger practitioners hoping to one day be in your position?
Some old-fashioned guidance: work hard and prepare for Murphy’s law, which says what can go wrong will go wrong. Partners and clients will appreciate it if you have a plan B from the beginning. Be curious: if you don’t understand an argument or a factual contention, there might be a reason for it. Be humble: the reason might be you. And, lastly, never forget that you will meet most people in arbitration at least twice. So be tough on the issue and courteous in conduct.
Dr Richard Happ is partner of the law firm Luther in Hamburg and co-heads the firm's complex dispute resolution group. He has acted as counsel or arbitrator in cases under DIS, ICC, SCC,UNCITRAL, UK, Swiss and German ad hoc and ICSID rules. Among those cases were disputes arising out of M&A transactions, energy joint ventures, service and marketing contracts, commercial production agreements, power plant construction and foreign investments. Since 2008, Dr Happ has represented claimants in five ICSID arbitrations, including the first two cases against Germany. Dr Happ speaks German and English and has conducted arbitral proceedings in each of these languages.
Dr Happ is listed for arbitration and dispute resolution in Chambers Global, Chambers Europe, Euromoney, Best Lawyers, The Legal 500 and JUVE. He is the author of numerous publications with respect to international arbitration proceedings between investors and foreign states. He co-authored the Digest of ICSID Awards and Decisions 2003-2007 (2009, OUP) and the Digest of ICSID Awards and Decisions 1974-2002 (2013, OUP), and he also published a commentary on the ICSID arbitration rules (second edition 2018, CH Beck). He has taught international arbitration and investment arbitration at the Universities of Kiel (Germany) and Hamburg.
He graduated in 1996 from University of Kiel. After three years as a research assistant in the field of arbitration, he undertook his legal clerkship in Hamburg and Brussels (Energy Charter secretariat). He joined Luther in 2001 and became a partner in 2009. Luther is an independent German legal partnership with approximately 380 lawyers and tax advisers in 10 German and six foreign offices.