Stephen Jagusch QC is "a towering figure" in international arbitration who is highly respected for his deep expertise in commercial and investor-state proceedings.
Stephen Jagusch QC specialises in international commercial and investment treaty arbitration, having acted as strategic adviser and lead advocate in some of the leading and most high-profile ad hoc and institutional international arbitrations worldwide. Most of these cases have been for or against sovereign states or substantial multinational organisations, and high or ultra-high net worth individuals. Recognised as a leading expert in international arbitration and disputes arising under contracts and bilateral/multilateral investment treaties, Stephen routinely speaks at leading conferences and seminars, and is widely published on the subject of international arbitration.
Some argue that nation states’ efforts to regain sovereignty have put investor-state dispute settlement under threat. Do you agree with this thesis, and if so what do you think lies in the future for investor-state arbitrations?
I agree that many states have taken actions to limit or even to eliminate their exposure to investor-state arbitration. This has at times led to some arbitration practitioners being heard to cry that the sky is falling. Many conferences, chapters and indeed whole books have been devoted to the so-called backlash against investor-state arbitration.
The problem has not been helped by the masses of misinformed or outright mischievous NGOs and hack reporters who peddle the so-called evils of investor-state arbitration. It is an easy sell for any state that has been ordered by an arbitral tribunal to compensate foreign investors. And so the idea that investor-state arbitration is a bad thing is a message frequently delivered by opportunistic politicians to understandably ignorant voters.
The greatest problem here is that we, as a community of international arbitration specialists, have allowed the investor-state arbitration message to be so badly manipulated.
The reality is that the offer to arbitrate disputes with forgoing investors is the ultimate expression of sovereignty. The promise of fair and equal treatment to foreign investors promotes and protects foreign investment. In today’s truly global economy, a host state’s openness to disputes with foreign investors being resolved by independent, non-politicised arbitral bodies should not be the exception; it should be the norm. Indeed, there are thousands of treaties presently in force that provide as much. These states are taking their position at the high table of those economies embracing cross-border trade and investment by casting away concerns about secret, unjustified, lawful or inequitable treatment or nationalisation without prompt and effective compensation. These treaties are acts of empowerment. They are to be encouraged.
The perception has been allowed to develop that states fare poorly in the arbitrations that are commenced under these treaties. There is a great deal of empirical research demonstrating that states win more than they lose; and when they lose, they lose far less than is claimed against them.
More worrying is the state that terminates investor-state treaties, or otherwise denies access to existing investor-state dispute settlement. It is one thing for a cautious, developing economy to be weary and perhaps slow to embrace investor-state arbitration. (There was a time not so long ago when only very few states had made these confident expressions of sovereignty.) But it is another for a state to withdraw existing promises of fair treatment or access to neutral adjudication. That feels to me a different message. The absence of a promise is one thing. The withdrawal of one is a warning.
What do clients look for in effective arbitration counsel?
Effective arbitration counsel is counsel that wins the case (or, in certain circumstances, succeeds in damage limitation). It is difficult to generalise what clients in fact look for. Many clients make the grave error of using their deal counsel, or counsel who have handled their other disputes, or who present the cheapest cost estimate. (Smart clients know that the most expensive counsel is counsel that doesn’t win!) While such lazy decision-making still exists, it is becoming less common. Sophisticated clients engage in research and analysis. They will know that their deal counsel should be counsel of last resort, and that winning is more important than cutting corners. They know that their runabout lawyers handling their everyday court litigation are likely to fare less well when out of their comfort zone, as they would likely be in a field of experienced, specialist international arbitration counsel, experts and arbitrators.
Smart clients will also recognise that a CV detailing a few international arbitration cases is very common these days, and is no match for a team comprised of respected leaders in their field with many decades of experience behind them, who have built up intimate knowledge of the practices and preferences of other arbitration counsel, experts and, most importantly of all, arbitrators. Clients should seek out counsel with experience sitting as arbitrator, including with arbitrators whose profiles are most likely to be considered for the dispute in question. Such counsel make better advocates.
Equally important is subject matter expertise. Contemporary clients won’t tolerate counsel learning on the job. Such clients seek out counsel who know the industry, its history and development, its hot topics, its players and its customs.
These requirements of clients are by no means exhaustive. But they would certainly be incomplete without what is possibly the most important counsel quality of all: passion. Savvy clients want counsel with the capacity, the drive and the determination to succeed. Counsel who don’t see the case as just another file to bill time to; rather, counsel who are passionate about winning. This entails solving difficult problems, coming up with new ideas, being prepared to challenge the client’s existing perceptions of the dispute, and being prepared to find commercial solutions, including speedy settlement options. At the end of the day, clients must be prepared for their cases to become a fight – so they must seek counsel who are strong before arbitral tribunals, and respected and known for their strategic insight and persuasive advocacy.
What do you enjoy most about your role as global chair of the firm’s international arbitration practice?
Quinn Emanuel has been a global force in dispute resolution for decades, but prior to my joining it was not well known in international arbitration circles. I have had the pleasure of building and leading our team to become one of the leading international arbitration practices anywhere. That is reward in itself; however, what I have enjoyed most is the breadth and depth of our international arbitration bench, the inspiring generation of our younger arbitration specialists, and the camaraderie and energy of our practice as a whole. When we put this before clients we get instructed on many of the world’s most interesting and high-profile cases. It doesn’t get much better than that.
What would be the advantages and challenges of developing international accreditation procedures for arbitral institutions based on common standards?
The current crop of leading international arbitrators and counsel were mostly trained by what might be regarded as the first true generation of international arbitration specialists. That first generation, while large in stature and prominence, were small in number, and mostly of European origin and male. What they achieved, however, was momentous – with great skill they shepherded court litigators and clients into the new world of international commercial arbitration. This was achieved not only in their handling of most of the “gold rush” in international arbitration, but through their shared experiences; teachings and thought leadership; and leadership roles in the best-known arbitral institutions. One thing to emerge from this, which has been widely heralded as a success, is a harmonisation of arbitral practices and procedures. This has aided the demystification of international arbitration and greater certainty as to process and procedure.
One unfortunate consequence has been the emergence of default procedures, and default approaches to problems, which are not created to suit the needs of the case in question, but rather to meet what has become the expectation of the participants. This in turn strips international arbitration of one of it’s greatest advantages: flexibility.
I consider it very important to the continued success of international arbitration that it should draw more from its roots: simplicity, adaptability, speed and efficiency. International arbitration protagonists are tasked with resolving correctly, but also quickly and efficiently, the dispute before them. They are not tasked with making international arbitration better. Or conformist. Or predictable. Measures that may be useful in some cases should not be deployed if they are not useful in the present case. Yet that is the risk we take as we seek ever more to train young lawyers in how an international arbitration should be conducted, or when arbitrators deploy practices and procedures to demonstrate their knowledge of what happens in other cases, as opposed to what is best for the case before them.
So the great challenge I see in any accreditation process is to ensure, on the one hand, that candidates demonstrate a deep understanding of the multifaceted and at times complex interplay of international and domestic laws and customs, delicately overlaying the intricacies of the facts of a particular dispute, set against often conflicting business cultures; and on the other hand, that accreditation does not produce one-size-fits-all practices and procedures.
What makes Quinn Emanuel Urquhart & Sullivan stand out from its competitors in the arbitration market?
Many reasons; however, key among them is our reputation for winning difficult cases – especially the high-value, complex or “bet-the-business” disputes for which we are renowned. Clients also know that we are less likely to be conflicted because we are a disputes-only law firm. And that we are willing to take on the banks, financial institutions, insurance companies and other global giants, and do so with complete conviction and in a way that most other firms are unwilling – or unable – to do due to the commercial interests of their transactional partners and clients.
We are a hard-working firm, for sure, but we have our own open and somewhat relaxed culture. Jeans are the norm and suits are only for client meetings. Associates are given real responsibility. There is no strict hierarchy and hence they find their own levels, not those imposed by seniority or structure. Most like and – more importantly – respond well to that. Associates like the way we encourage them to do as much of their own advocacy as possible. We are, after all, a firm of trial lawyers, but this does not mean that only partners get to have all the fun! Associates are also expected to have a full role in marketing and business development which most of them enjoy. Add to that events such as the annual firm hike, and our “work from a beach” policy, and I think we have created a unique and enjoyable culture.
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?
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 (in person or virtually) 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.
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.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
While I have always considered the personal attention unwarranted, I have always felt flattered by client and peer feedback, including from directories. While I am able to reflect on numerous and at times thrilling successes, in terms of both team building and winning difficult cases, the reality is that my contribution has only ever been to lead, encourage and inspire the many and much brighter lawyers that I have had the privilege to work with. I love the excitement of the new case, especially the difficult ones, and working as one team with clients and witnesses and experts to create winning strategies. I especially enjoy seeing younger talents emerge from these environments, including the challenge and stimulation of leading them and staying ahead of the game. The toughest cases are won by the most dedicated and passionate teams. The wins are savoured but I am quick to want to work with the next team and win the next case, and to impress new clients. That sustained sense of passion for international arbitration, and delivering for clients, is perhaps my greatest achievement. It would be an even greater achievement for that to continue.