Stephen is recognised as a leading strategist and advocate in the field of international arbitration and disputes arising under contracts, bilateral or multilateral investment treaties, and foreign investment laws. Stephen routinely receives awards and other recognition for his international disputes work. Formally global head of international arbitration at Allen & Overy, Stephen has since 2012 been global head of international arbitration at Quinn Emanuel Urquhart & Sullivan, the world’s largest business disputes law firm. In addition to appearing as counsel, Stephen sits as arbitrator in both commercial and investor-state disputes. Stephen was awarded Queen’s Counsel in 2016.
WHAT ATTRACTED YOU TO A CAREER IN DISPUTE RESOLUTION?
A career in international arbitration was attractive to me for a host of reasons. Key among these, when I made the choice in the late 1990s, was that it was relatively new and unexplored territory. It is really only in this century that disputes lawyers have begun to specialise in international arbitration. Also key was the opportunity to work with, and for, lawyers and clients from a diverse range of legal, social, economic and geographic backgrounds and cultures. Almost all of my clients reside, and most of my meetings and hearings take place, abroad. As such, there are no groundhog days – each day brings new people, new subjects, new laws and new places. As if they were not sufficiently compelling reasons for a career in international arbitration, such a career also allows you to specialise in a process, as opposed to an industry sector. This has enabled me to gain deep experience across a diverse range of sectors, from energy and natural resources to telecoms to general joint venture issues and construction disputes. There are very few industry sectors in which I do not now have a surprisingly good grasp of its important features.
WHAT DID YOU FIND MOST CHALLENGING ABOUT STARTING OUT IN ARBITRATION?
The greatest challenge starting out in arbitration was, for me, also one of its greatest appeals, namely freedom from the overly fussy, technical and at times cumbersome rules of civil practice and procedure that dictate almost all aspects of dispute resolution before national courts. The lack of structure provides great freedom for the advocate in terms of how her or his case is to be presented and supported. The challenge, absent detailed procedural dictat, is how to do this persuasively and cost-effectively.
The other great challenge to starting out in international arbitration is to find a suitable mentor. Ideally, a mentor who is already part of the arbitration establishment and able to make introductions to important people, and opportunities. Profile-raising is key, and this requires dedication to developing a deep knowledge and appreciation of the law and practice of arbitration that is difficult to develop from textbooks alone. One needs guidance. I cannot think of any notable figure in our profession who has not benefited from one or more great mentors, and I cannot conceive of new entrants to this industry succeeding without them.
HOW DO YOU PREPARE FOR A TYPICAL ARBITRATION?
As counsel, preparation for any arbitration requires, first and foremost, a complete mastery of the universe of potentially relevant facts. The facts (and supporting evidence) must then be analysed in the context of the governing law (as well as any laws of mandatory application and any relevant international conventions and customs). Special care must always be taken not to make assumptions about the substance or operation of foreign laws. From that starting point – facts and law – everything that follows is strategy and advocacy. In that regard, it is critical to understand the known expectations and likes and dislikes of the arbitrators, who may come from different and unfamiliar legal backgrounds and cultures. Knowing and being sensitive to one’s audience is a vital but often overlooked part of counsel’s preparation.
As arbitrator, it is vital to understand that your work starts when you are appointed – not when a hearing is due to commence. Contemporary international arbitration demands that arbitrators study their files early and often, that they engage with the issues and with counsel and that they seek proactively to shepherd the parties to a correct yet swift and efficient conclusion.
HOW DO YOU THINK INVESTOR-STATE ARBITRATIONS WILL DEVELOP IN THE NEAR FUTURE?
I am confident that investor-state arbitration will continue to flourish. The industry is responding well to legitimate concerns. That said, most of the stated concerns are based on misinformation or a misguided understanding of the process and the benefits of investor-state arbitration. As practitioners we are starting to get better at responding to the unjustified bad press.
Looking to the horizon, I see a continuing increase in the third-party funding of claims, a continued drive towards transparency, a more diverse pool of talented investor-state counsel (the latter hopefully sooner rather than later), and a broader pool of neutral, open-minded and competent investor-state arbitrators.
I would also like to see an end to the practice, by some arbitrators, of building their careers around an overt state bias, seemingly irrespective of the merits of the cases before them. Such practitioners bring our profession into disrepute, to say nothing of denying claimant investors the open minds they are entitled to expect from all members of their tribunals.
HOW DO YOU SEE THIRD-PARTY FUNDING INFLUENCING THE ARBITRATION MARKET?
Much ado is made over third-party funding when very little is warranted. All claims ever made have been funded somehow, usually by equity or debt. It has not previously bothered us that shareholders or banks might be funding a claim. Why should it bother us that third-party funding fulfils the same role? Yes, some technical points of potential conflict may arise in some circumstances, but this problem is solved by appropriately limited disclosure.
Third-party funding is here to stay. It facilitates access to justice. It provides a useful economic and financial tool for parties to disputes and their counsel. It should be celebrated. I am confident that in years to come we will look back at the early controversy around third-party funding and wonder what all the fuss was about.
WHAT ARE SOME TECHNIQUES THAT COULD BE USED TO IMPROVE THE EFFICIENCY OF ARBITRATION PROCEEDINGS?
There are many techniques to help reduce time and cost. This subject is one of the most written about in contemporary international arbitration. Rather than mention them all, I shall mention only one: greater control and discipline by arbitrators. It is my firm belief that arbitrators should be fixing shorter periods for preparation of submissions, they should be engaging early with counsel to ensure that their work is focused on the issues that matter, and they should be issuing their awards more promptly.
By forcing upon parties a smaller window during which expense is incurred, less expense is incurred.
In literally dozens of arbitrations I have seen counsel complain about shortened time limits, yet I have never known a challenge to an award to be upheld on that basis. Arbitrators who feel liberated from due process paranoia are undoubtedly the key to unlocking greater efficiency in international arbitration.
HOW HAS THE MARKET CHANGED SINCE YOU FIRST STARTED PRACTISING?
The market has changed dramatically. International arbitration was once the domain of gentlemanly conduct, trust, goodwill, and voluntary enforcement of orders and awards. Contemporary international arbitration has become a hard-fought and at times bitter battleground.
Sophisticated clients and their sophisticated counsel work the system for every conservable adversarial benefit. Bad faith performance, strategic challenges, unethical practices and corruption have become routine. It may escape the attention of the novice that these crimes and misdemeanours, to varying degrees, are present in almost every case.
WHAT ADVICE WOULD YOU GIVE TO SOMEONE STARTING OUT IN ARBITRATION?
I would start by directing them to read the published note of my address on the subject of some 15 years ago to the Chartered Institute of Arbitrators, published in Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (volume 71, pp 329-338, Sweet & Maxwell, 2005).
Beyond that, I would encourage that they read extensively into the subject of international arbitration law and practice. I would recommend that they become associated with as many arbitral bodies and institutions as possible, and attend their regular events. This is most easily achieved (and funded!) at large international arbitration practices, where one will also be exposed to a broad variety of work, which is essential to becoming a well-rounded practitioner. This is no place for pure academics, or pure street-fighters. The most successful practitioners exhibit the skills derived from both. Profile-raising includes identifying new angles and issues, and writing and speaking about them. Do not be afraid to be provocative or controversial: call things as you see them and build a support network around you of like-minded arbitration enthusiasts.
Stephen Jagusch QC “is a leading advocate” at the arbitration bar and is highlighted as “outstanding counsel” in high-value investment treaty and commercial arbitrations. Sources add, “He demonstrates high professionalism, conducts an in-depth study of the client’s needs and applies all possible skills and tools to achieve their goal.”
The global chair of international arbitration at Quinn Emanuel Urquhart & Sullivan, Stephen specialises in commercial and investment treaty arbitration. He has been counsel in more than 200 arbitrations and has sat as arbitrator in more than 50 cases of all types, commercial and investor-state.
A great many of Stephen's cases have been for or against sovereign states or substantial multinational organisations, and he has been lead counsel in many of the world's leading commercial and investment treaty cases.
Stephen is recognised as a leader in his field and has recently been described as “one of the most impressive advocates around”, “a masterful cross-examiner”, a “tenacious fighter”, the “maestro of strategy”, “one of the gurus in the field” and “one of the pre-eminent ICSID arbitration experts in the world”. Colleagues and clients praise Stephen’s “finely honed instincts for strategy in advocacy”. Stephen has earned numerous client and peer-review awards in recognition of his handling of highly complex and high-value cross-border disputes.
Although a recognised expert in all types of arbitration, Stephen’s emphasis has been on disputes in energy, mining and natural resources, telecoms, converging technologies, mergers and acquisitions and construction projects.
Stephen routinely speaks at leading conferences and seminars, and is widely published on the subject of international arbitration.
Stephen was awarded Queen’s Counsel in 2016.