Alexis Mourre, president of the International Chamber of Commerce International Court of Arbitration is striving to take arbitration to the next level
On July 1, Alexis Mourre became one of the most important lawyers in the world of arbitration. Upon taking up the presidency of the International Chamber of Commerce (ICC) International Court of Arbitration (ICA or Court), he took the helm of the world's first – and according to some, still the only – truly global arbitration forum.
With a legacy dating back more than 80 years, some organisations could be caught up in the past. The ICA, however, is more dynamic than ever. Speaking with IFLR, it's clear that Mourre is intent on not only proving, but also improving arbitration's value. He is committed to ethics, transparency, fairness and trust in arbitration proceedings. And realises that underlying unbalances, such as the demographics of arbitrators, can have a knock-on effect.
Mourre is not only a thought leader, but also a pragmatist who is attune to the realities of dispute resolution today. Here, he shares his insights with IFLR.
What are your top priorities during your presidency of the ICA?
We are more conscious than ever of our users' concerns concerning the time and costs of arbitration proceedings, and we will be ever more rigorous and demanding as to the expeditiousness of our arbitrations. Much progress has already been made in ensuring that our tribunals conduct proceedings in the most efficient manner. Save in exceptional cases, ICC awards are made between 18 to 24 months from the request for arbitration, and our teams closely monitor the progress of the case when extending the time-limit for rendering the award. We do not hesitate to press those tribunals who do not act with the desired efficiency, and this generally produces very good results. And we do not hesitate to financially sanction unacceptable delays, in the rare occurrences in which they happen. We will be very transparent with our arbitrators in making it clear that failures to produce a draft award in a reasonable time has consequences in terms of the determination of their fees. We will also seek to reduce, to the maximum extent possible, the time needed to constitute arbitral tribunals.
I will also seek to give more voice to our users by creating a platform allowing corporate counsel to interact directly with the Court's leadership on a permanent basis. It is of the utmost importance that the voice of corporate counsel be heard and fully taken into account in our decisional practice and future strategic plans. I am very happy, in this regard, that the Court's Governing Body is chaired by a corporate counsel.
"It is an important goal for the Court…to favour whenever possible the rise of a new generation of arbitrators"
There are many other questions on the table. A unique feature of the ICA is its global reach and transnational nature. In contrast to all other arbitral institutions, the Court is not rooted in any particular jurisdiction and is not the expression of any legal culture. We are not funded by any government and do not have links with any state. Our rules do not provide for any seat by default when the parties did not agree on the legal venue. We administer cases from three continents, thanks to the presence of our teams in Paris, New York and Hong Kong. Our secretariat is able to administer cases in more than 25 different languages, our Court is composed of 130 members from 80 different jurisdictions, and the Court avails itself of the support of its more than 90 national committees, giving it a unique global reach. We will in the months to come reinforce and expand that global reach, and to that effect we are working on the possibility of opening an office of the Court in Latin America. We will also hold our Court sessions not only in Paris, as was the case in the past, but also abroad. We will in 2016 hold plenary sessions in New York and Hong Kong. We want to make sure that the Court is at all times perceived as a truly international organisation, not as a civil law or common law institution or as a French or European organisation. From that perspective, I expect our Court members on all continents, as well of course as our 17 vice presidents, to act as ambassadors of the Court on a global basis and help us create even more proximity with our users worldwide.
We will also need to increase the diversity of the arbitration community. Arbitration is still too often seen as a club of old, male, western practitioners. It is an important goal for the Court, when appointing arbitrators, either directly or upon the proposal of a national committee, to favour whenever possible the rise of a new generation of arbitrators, including from emerging jurisdictions. Gender diversity also matters much to us, and I am proud that our bureau of vice presidents respects perfect gender equality.
Another important point is making sure that the integrity and fairness of the arbitration process is at all times beyond any doubt. We will be very demanding in making sure that conflict disclosures made by our arbitrators are transparent and provide the parties with all the relevant information needed to assess whether there is a reasonable doubt as to the arbitrator's independence and impartiality. Equally, the Court will be as robust in rejecting frivolous and tactical challenges as it will be rigorous in sanctioning failures to comply with the arbitrators' duty to disclose. The Court has always played a pioneering role in this respect and will continue to do so. I welcome, in this respect, that the International Bar Association's arbitration committee has adopted in the new Conflicts Guidelines our position as to the so-called advance waivers. Our strong view is that those waivers have no effect as to the arbitrators' ongoing duty to disclose.
Increasing the transparency of the Court's procedures is also high on my agenda. Our rules provide that the Court shall not provide reasons for its decisions. That is an important rule, which is needed in order to avoid unnecessary delays and administrative costs. Nevertheless, we acknowledge that in certain circumstances there is a need to provide reasons to the parties if they request us to do so. In this respect, our practice has evolved in recent months. As far as arbitrations involving states or state entities are concerned, an ICC task force has recommended that reasons be provided for decisions made on challenges to arbitrators; this has been done on two occasions. We will expand this practice to all cases in which the parties request us to do so, irrespective of whether a state or state entity is a party. We are also considering extending this practice to certain categories of decisions, other than challenges. We will in the coming months seek to make our practice transparent to the parties by amending the note that is sent to them at the outset of a procedure.
For a party facing a dispute, what advantages does the ICA have over the many other arbitration centres springing up around the world?
As I said, the Court is the only truly global arbitral institution. This guarantees that it is an absolutely neutral forum for the resolution of disputes, irrespective of the origin of the parties or the nature of the dispute. This neutrality is also ensured by special rules that are applied when a state or a state entity is present. For example, in such a case, the award will always be scrutinised by a plenary session of the Court, as opposed to a three-members committee. Another rule that applies when a state or a state entity is present is that arbitrators' appointments are made directly by the Court rather than upon the proposal of a national committee.
Another advantage is of course the quality of our rules. Not only are they the best in the world, but we have more than 80 years of experience in administering cases. Experience matters, and it gives immense value to our users and the arbitral community at large. Our fees schedule also ensures that arbitration costs remain limited and predictable to the parties.
But the most important and unique feature of our arbitration is, of course, the high quality of our scrutiny process. No ICC award can be notified to the parties before it has been controlled and approved by the Court, either in a plenary session or in a three-members committee. All awards are carefully read and controlled by the secretariat, and when they come to the Court, they are subjected to an in-depth discussion. The Court provides the arbitral tribunal with observations as to the award's form (to which the tribunal has to comply), and it can call the tribunal's attention to questions of substance. These comments are in the overwhelming majority of cases adopted by our tribunals. This process is unique and has immense value to the parties. It does not take more than three or four weeks, and it increases the quality of our awards; not only as far as questions of form are concerned, but also the clarity and coherence of the reasoning or the calculation of damages. The award's scrutiny lowers considerably the risk that it will be annulled at the seat of the arbitration, and increases the likelihood that it will be enforced in other jurisdictions.
For which parties, and in what types of disputes, is arbitration likely to be of most benefit?
When a dispute involves parties from different jurisdictions, one of the main reasons parties choose arbitration is because they want a neutral forum. No institution can ensure, better than the ICC International Court of Arbitration, the perfect neutrality of the process. Arbitration is of course particularly suitable in large, complex disputes, in which arbitrators will need to resolve difficult technical and legal issues, as well as to deal with complicated questions of damage valuation. For all these issues, having an experienced arbitral tribunal able to devote the necessary time to cases that often involve thousands of pages of submissions as well as lengthy and complex expert reports and the hearing of numerous fact witnesses, is of course key. Finally, arbitration is more efficient in terms of time and costs than court litigation.
Is it difficult to promote arbitration in litigious societies, and in which of these countries is progress being made?
The acceptance of arbitration has now become universal, and progress is being made in many jurisdictions that used to be more sceptical or less favourable to the process. Case law around the world demonstrates that some of these jurisdictions – in particular India and parts of Latin America – are becoming more favourable to arbitration. Globally, there is more judicial restraint, less reviewing of the merits of awards, and there is now widespread deference to the New York Convention. So, even though there still are regrettable decisions, I think we are overall in a positive situation.
"Trust takes decades to be established, but it can be destroyed very quickly"
It is essentially a question of trust in the process, and trust is of course not a given. For example, I was recently in California, where corporate counsel from large hi-tech companies told me that they are used to court litigation, because they have judges that are highly specialised and knowledgeable of the technology industry. Legitimately, they want to know what arbitration offers that their courts don't. That is certainly a legitimate question. We are now in a world in which arbitration is not as much of a given as it was in the past, and we need to make the case that it is more efficient than court litigation. We also need to ensure that arbitration remains at all times a fair and legitimate process. Trust takes decades to be established, but it can be destroyed very quickly. What is happening at the moment in the context of investor-state arbitration is a cautionary tale.
Building on that last point, to what extent does international arbitration's effectiveness depend on the willingness of courts to recognise and enforce awards?
There is now wider acceptance of the international nature of arbitration, and the New York Convention is generally accepted and properly applied. There is also a broad consensus that an international arbitral award has a validity of its own. More and more jurisdictions are enforcing foreign awards in spite of their annulment at the seat. There are different approaches to this; France takes an entirely delocalised approach, while the US and the Netherlands look at whether the annulment decision should be accepted or disregarded. But in all cases, there is an acceptance that, when the award has been annulled at the seat, courts in the country of enforcement nonetheless have discretion to enforce it. There is also a growing body of investment awards holding that failure to enforce an award in compliance with the New York Convention is a violation of international law. These are important trends in favour of enforcement.
What should parties consider when drafting an arbitration clause to include in their contract?
I will say only two things. They should adopt institutional arbitration, for it is in my view preferable to ad hoc arbitration. And if parties opt for institutional arbitration, they should adopt the clause recommended by the particular institution. Do not try to reinvent the wheel or redraft what experienced institutions have done, save in the measure of the strict necessary. In the vast majority of cases, it is advisable to include the clause recommended and proposed by the institution.
Some believe that party-appointed arbitrators' may lack the impartiality of one who is appointed by a third party. What are your thoughts on this point?
I do not think that this is the case. In the vast majority of cases, we see party-appointed arbitrators acting properly and in an impartial manner. There is now a growing consensus in the international arbitration community that party-appointed arbitrators need to be independent and impartial, and there is a growing awareness that unethical behaviour does not advance the case of the party having appointed a biased arbitrator. In addition, arbitral institutions are more robust in replacing arbitrators who do not behave properly. In my view, the system of party appointments offers immense advantages, by giving the parties more participation in the process, and also by ensuring the diversity of the arbitral community, which would be jeopardised if appointments would exclusively depend on institutions. I also think that the parties are in the first place better placed to select the most suitable arbitrator for their case. Party appointments is the most broadly adopted method and it works well. I do not see more problems in tribunals where arbitrators have been appointed by parties as opposed to when appointed by an institution.
What are the most common misconceptions about arbitration?
The main misconception that you still see too often is that arbitration is a proxy for court litigation. Some counsel still try to import procedures that belong in litigation, but have no place in arbitration. An obvious example is document production. Some parties think there should be broad discovery, or to the contrary object as a matter of principle to any form of document production. They fail to see that arbitration has its own procedures with respect to the disclosure of documents. That said, there is now a broad awareness that arbitration is distinct from court litigation, but some parties still act in arbitration as if they were before a court.
You've been practising law for more than 25 years. How have you seen attitudes towards arbitration change over that time?
There are two important trends. First, there is fiercer competition between institutions than ever before, and that is in part due to the fact that new institutions have emerged, in particular in Asia. There is also an emerging competition between arbitration and court litigation. Some jurisdictions, such as Singapore and Dubai, have sought to create international courts with the aim of competing with arbitration. So it is a more open and competitive landscape.
The second trend is a growing suspicion against arbitration in the context of investor-state arbitration. This has developed recently, particularly in the context of the negotiation of the TTIP [Transatlantic Trade and Investment Partnership]. There has been a pushback by some states, and the European Commission has taken a stand that is not precisely favourable to arbitration. There has been an anti-arbitration campaign led by some NGOs [non-governmental organisations], based on arguments that are often based on misconceptions, and at times politically biased. My concern is that this negative climate spills over to commercial arbitration. This has not happened so far, but it is even more necessary to make the case for arbitration and the trust that it deserves. We need to make the case, over and over, that arbitration is a fair and proper means of resolving disputes.
First published by our sister publication IFLR magazine. Take your free trial today.
President, ICC International Court of Arbitration
About the contributor
In 1996 Alexis Mourre founded Castaldi Mourre & Partners, which is now a firm of 35 lawyers specialising in arbitration and dispute resolution. In May 2015, he established his own arbitration practice. Alexis has served as counsel to a party, president of the tribunal, co-arbitrator, sole arbitrator or expert in more than 200 international arbitrations, both ad hoc and before most international arbitral institutions (including ICC, ICSID, LCIA, ICDR, SIAC, SCC, DIAC and VIAC).
He is the author of numerous books and publications in the field of international business law, private international law and arbitration law. He is founder and past editor in chief of Les Cahiers de l'Arbitrage – The Paris Journal of International Arbitration. Starting July 1 2015, Alexis is the president of the ICC International Court of Arbitration; he was vice-president of the Court from 2009 to 2015. He was vice-president of the ICC Institute of World Business Law from 2011 to 2015, co-chair of the IBA Arbitration Committee from 2012 to 2013, LCIA Court member from 2012 to 2015, and council member of the Milan International Chamber of Arbitration from 2006 to 2014. He is a member of a large number of scientific and professional institutions dedicated to arbitration and private international law. He is the founder and past president of Paris Place d'Arbitrage/Paris the Home of International Arbitration.
Alexis is fluent in French, English, Italian and Spanish, and has a working knowledge of Portuguese.