In the latest edition of our spotlight series International Arbitration Partner, Alexander Slade, reflects on the differences between litigation and arbitration, and why he opted to become an arbitration lawyer.
Alexander represents clients in complex international commercial arbitrations and investment treaty arbitrations across a number of sectors, with significant expertise in the energy sector. He has represented clients in disputes and advisory matters across the value chain in both the oil and gas and renewable energy industries. He also has wide experience in large-scale disputes in the construction, infrastructure, telecommunications, and financial services sectors.
From philosophy to arbitration
When I decided to become a lawyer, I knew I wanted to be a disputes lawyer. I did a degree in French and philosophy. I think philosophy gives a good grounding for disputes work – you have to review and quickly understand large amounts of information and argument, and construct good counter arguments. I also liked debate. I didn't see myself as a corporate lawyer, and that was confirmed during my training contract.
I didn't know anything about arbitration before I started working in a law firm. During my training contract, though, I worked on an international arbitration and I discovered that, while I enjoyed domestic litigation, I enjoyed international arbitration even more. So, after I qualified, I continued to build up that side of my practice until it became pretty much my whole practice.
I joined Mishcon de Reya about a year ago. I've known Louis Flannery KC (Head of the International Arbitration Group) for a long time and when the opportunity to work with him presented itself, I was very keen. It was a great opportunity to contribute to the growth of the international arbitration practice at a firm with a top-drawer reputation for contentious work.
Why arbitration?
There are any number of reasons why a party might choose to arbitrate rather than litigate. One of the key ones is enforcement. Ultimately, most commercial dispute resolution is not about winning – if a client can't monetise it then a decision in its favour is worthless. Enforcing an arbitration award outside the jurisdiction it was rendered in is generally a lot easier than enforcing a court judgment. Enforcement is, and should be, a big consideration when considering dispute resolution clauses. For some clients, privacy and confidentiality are also very important features of arbitration, as compared to court litigation.
For a lot of my work, it is the international nature of the transaction or contract that (along with enforcement) really encourages the parties towards arbitration. Where you are dealing with large scale infrastructure or energy projects, joint venture agreements, trading agreements or M&A deals, where the parties are international and the transaction has a cross-border element, arbitration is the natural choice. It gives the parties a neutral forum in which to resolve their dispute, with the possibility of crafting their own process, rather than being subject to the straightjacket of a national court system with which at least one of the parties will have little familiarity or comfort.
That means that in arbitration you have to be much more comfortable with flexibility. There's a lot that you can't look up in a code or in rules of procedure. You also have to bear in mind the effect of many combinations of factors like different applicable laws for different issues, and conflicts between those laws.
The skill of advocacy
A particular career highlight for me has been conducting advocacy at the Peace Palace in the Hague on cases administered by the Permanent Court of Arbitration. I think every lawyer who appears there has a photo of themselves taken outside the building – I know I do!
Conducting your own advocacy is one of the things that often differentiates an arbitration lawyer from a traditional English litigator, but arbitration advocacy isn't like the advocacy you see on TV courtroom dramas. As an advocate before an arbitral tribunal you aren't robed, you don't have a jury and generally it is much less performative than can be the case on TV. What's more, in arbitration you are often dealing with a tribunal made of three members who come from different legal backgrounds and different countries, with different expectations of how the hearing should be conducted and what is persuasive argument. A French avocat, for example, might view the case completely differently to a Swiss law professor, a lawyer from the Middle East, or a US industry expert. That means you have to craft your arguments to suit more than one mode of judicial thinking and you have to be comfortable operating flexibly and with different juridical influences on the process. That challenge was one of the things that drew me to arbitration from early on!
The difference between commercial arbitration and investment treaty arbitration
There are some similarities between the processes for commercial arbitration and investment treaty arbitration, but in important ways the two are also quite different. Commercial arbitration is much more directly linked to and bound up with a client's day-to-day business. You often feel, as the external lawyer, that you are really helping the client to achieve outcomes that have a direct effect on their business. Investment treaty arbitration is often a longer process, with political influences and ramifications that mean it is harder to be sure of the outcome and are therefore often less relevant to day-to-day business. Often there's just no alternative option and the client has no meaningful business left because of the state actions you are fighting about. Investment treaty arbitration is also often much more academic and requires an understanding and application of a completely different law (public international law). The political and theoretical issues make it very interesting for the practitioner, though perhaps less so for the clients!
Both processes have different challenges and both are rewarding in different ways. My practice has always been split between the two, to varying extents. I've had a steady stream of investment treaty cases since qualification and the nature of those cases is that there are fewer of them, but they last longer. Overall, that means I've probably done more commercial arbitration, but investment treaty work is nonetheless an important part of my practice.
Predictions
Many of my clients operate in the energy industry, which relies on large scale, cross-border contracts and joint venture agreements, so arbitration is the natural choice of dispute resolution forum. The energy transition is not changing that. If anything, arbitration is increasing as different forms of energy production, projects and ownership structures emerge, in both the renewables space and in the oil and gas industry.
Despite recent trends in national political discourse to retreat from globalisation, the reality is that global trade and commerce are still crucial and increasing and arbitration is a fitting choice to resolve disputes in those areas. Indeed, the proliferation of better arbitration laws in more countries, supportive court systems and new arbitral institutions means there is greater choice of reliable seats than there has ever been. This means the ability of businesses to have their disputes resolved in arbitration also increases.
Courts in some countries are doing a good job of trying to reclaim some of that work. A number of specialist courts have been set up to deal with commercial disputes, offering specialist judges and the ability to conduct proceedings in English. But I don't think those courts should be seen as competitors to arbitration. Both have the same goal: the effective and efficient resolution of international commercial disputes. They go about that in different ways, though, and the attractions of arbitration still remain. I don't see the growth in arbitration stopping any time soon.