Sign Colorado Arbitration Agreement Now

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[Music] hello and welcome to the arbitration conversation so in this conversation we're going to speak with a leading arbitrator a leading expert practitioner in the world of international dispute resolution today we have stephen anway he is a partner with squire patton boggs and he actually leads co-chairs the firm's international dispute resolution practice he's been listed in november 2020 law 360 recognized the group as international arbitration practice of the year which is huge um so stephen i know you're extremely busy um and you have offices in washington dc new york you're constantly traveling but of course the pandemic has put a bit of a a damper on that but i really appreciate you taking the time to talk with us today about international dispute resolution thank you amy i'm happy to be here so first of all i guess i always really love hearing um how how does a person become the co-chair of this mammoth um group um in international dispute resolution you know a lot of students might be listening and thinking how could i ever become a partner working in this area of international dispute resolution my path to international arbitration i think like most of my colleagues who are my generation or older came into international arbitration not as sort of a planned um end goal when i went to law school 20 years ago or so not many law schools were teaching international arbitration not many students were aware of the field the investment treaty practice globally really had yet to take off uh it didn't start until the early 2000s and so i got involved just as that practice was really starting to grow and i was a summer associate here at squire the firm was then called squire sanders and dempsey it's now called squire patent boggs after my first year of law school as a summer associate i came back as a second year summer associate after my second year of law school and did a two-year clerkship after i graduated from law school but had accepted a full-time offer with the firm and returned to the firm as i promised i would at the conclusion of the clerkship and i was put into a litigation practice and um after spending two or three months in that litigation practice the head of the newly minted international dispute resolution practice at the law firm a mentor and a friend named george von murren who now is my co-chair of the idr group here at the firm came walking down to my office we had a partner a wonderful partner named ricky gerst who used to come around to everyone's office to make sure they had enough work but not too much and i said something to ricky that i have never said in my life since which was ricky i could use a little more work and he then sent george down to my office george was already a famous lawyer his father arthur von murren was one of the deans of international arbitration he had taught international arbitration at harvard law school for 40 years uh george is his eldest son and was already a very well-known uh lawyer in this field at the time so when he came to my door it was uh somewhat intimidating and he said to me i understand you just finished a clerkship for a judge that george knew very well and respected and he said i hope you can put a few words together and i said i hope i could so he asked me down to his office and he was dealing with the very first natural gas price review arbitration in history and these cases as a collection of cases are perhaps the largest disputes in the world just in terms of the monetary value and he told me that there was a very significant wall street firm with an army of lawyers on the other side and he turned to me and said you're my army. so we had a partner from our madrid office down in his his office who had come over from spain and they needed a common law lawyer to understand the intricacies of the european natural gas markets and the liberalization of those markets and how it impacted a very complicated pricing formula and for the next i don't know five or six hours i sat in the sat in on the meeting it was the most complicated material i had ever heard i remember thinking to myself i'm gonna go back to my office shut the door and uh try to master this material over the course of the next week hope to come back and ask a few questions uh and i then looked at george who said to me i'm gonna need a draft by 5 pm tonight so i went back to the office shut the door called my wife and said i don't think i'm going to be working here much longer i uh i was convinced that my career at the firm was going to be somewhat short-lived as a result of this i ended up seeing george in the hallway shortly before 5 pm he said i he had just returned from europe he'd be getting up early because he was still on european time and it was okay if i sent that draft by 5 am and so i sent it at 4 59 a.m i got in the car drove home woke up 30 minutes later to an email that said this looks good come back into the office when you can and let's keep going and that started my career in international arbitration i moved to the idr group almost immediately after that and i've been working with george effectively ever since wow that's a great story well and i guess you know as you go along you think about as you're saying investment treaty arbitration of course is huge in international arbitration i'm sure you deal with a lot of those um issues are there any trends that you have been seeing in that area of investment treaty international arbitration yeah i think the clear trends we're seeing are in investment treaty arbitration the most significant of course is the reform of the system particularly the reform that's being sought by the european uh commission in the european union more generally and this was accelerated of course by the 2018 decision from the court of justice of the european union in the famous acmea versus slovakia decision slovakia has been a client of mine for the last nine years 10 years and one of the positions that slovakia continued to take even when all the arbitral tribunals were rejecting the argument was that intra-eu bilateral investment treaties these are bilateral investment treaties between two eu member states were invalid and contradicted uh some of the founding treaties of the european union and notwithstanding the fact that virtually all the tribunals had rejected this argument indeed there wasn't even a descending arbitrator that had ever agreed with it the slovak republic continued to press the issue as did some other countries including the czech republic and later spain and croatia and others romania most recently um and what what the slovak republic did that was unique in this case um this is the achmea one case where i did not represent them i ended up representing them in the yakima ii case where we won on a different jurisdictional ground but in the occamy in one case back in 2008 2009 this at the beginning of the case the slovak republic researched which seats of arbitration in the european union were most likely to have their national courts refer questions of eu law to the european court of justice and the idea was that if the arbitral tribunals would not agree with the slovak republic on this jurisdictional objection perhaps a european court might but of course the arbitral tribunals don't have the ability to refer questions of eu law to the court of justice only the national courts in the european union do and as a result of that research at the very beginning of the case they planted a seed that years later would bear fruit and it was the identification of germany as the country in which its national courts most often referred questions of eu law to the court of justice and so the slovak republic convinced the arbitral tribunal in that case to seat the case in frankfurt and when the slovak republic lost on the merits in the arbitral award they sought to set it aside at the seat which is the only place you can seek to set aside an award and not the first instance german court but the second instance german court in fact agreed to refer this question of eu law to the court of justice of the european union and on a fateful day in 2018 much to the surprise of everyone because even the advocate general uh had advised the court to reject this argument a 15-member grand chamber session of the uh european court of justice unanimously accepted the slovak republic's argument and held that these arbitration clauses in intra eubits are invalid and it therefore raised questions whether all of these arbitral tribunals had jurisdiction to decide any of these claims it was a fateful day for me because i was sitting in washington dc preparing for an ixid proceeding that started the next day in which i represented a different european union country and we had raised the acne of jurisdiction now there are many lawyers at the time that had not raised that issue because it had been so roundly rejected by all the tribunals but in that case we had raised it and as you might imagine my opening statement was significantly changed just the day before i was about to give it um now what has happened since then is that the arbitral community has found ways to distinguish the court of justice's decision and so notwithstanding the court of justice's decision all the arbitral tribunals that have taken up the issue of whether the acme a one decision means they have no jurisdiction have rejected that argument and nonetheless exercise jurisdiction so the arbitrations are still going on but a separate issue is enforcement because even though the arbitral tribunals may not feel themselves bound by the occamya decision it's a separate question of whether the national courts of the countries that are being sued will recognize that decision since they are members of eu states uh of the european union the states are our members and therefore that issue is one that i think is causing some reduction in the number of claims that are being filed in the european union and it's also to come to your question uh i think accelerated the european union's desire to effectively revamp the system and create some type of investment treaty court within the european union that's probably the most significant trend we're seeing now there are other trends for example following the mauritius convention and it's signing and ratification by so many countries several years ago i think you're seeing more and more transparency in investment treaty arbitration i handled the case for the slovak republic several years ago called eurogas and it was a a case involving two bits one slovak canadian the other slovak the united states and the canadian one had a transparency protocol on it which was a new legal instrument that had recently been attached to that treaty which required that the proceedings be conducted entirely open to the public and to ensure that there when the witness sequestration rules were still respected uh what this has meant in practice is that the hearings are videotaped and that there's some delay before they're put online so that way witnesses that are sequestered can't view what's going on in real time but what you see is the entire video of the proceedings being posted online and of course all of the briefs and in some cases even expert reports witness statements and exhibits also being made available so i think we're seeing more and more um transparency in investment treaty arbitration as well wow yeah no those aren't big trends um i'm wondering sort of going back to this reform when do you think so we'll see this creation of this investment tree court if you will in the eu um has there been sort of the latest developments there and when you think maybe reform will happen yeah i think i think it's still a little bit of a ways off i would i would not expect anything in the next six months or so but i think in the coming years we probably will see something more formal um but there have been so much there's been so much debate over the years about what it will look like and how for example judges to this court will be appointed if they're only to be appointed for example by the states themselves many foreign investor representatives have wondered whether the foreign investors will have the same type of fairness that they have perceived to have in the past where they've been able to appoint an arbitrator of their own so so much of this is going to come down to the detail in terms of how the decision makers are ultimately going to be appointed in the pool of judges or arbitrators whether they'll be rotating whether they'll be permanent um i think all of these things are what is going to make this such a delicate issue and one that's going to take some time to iron out oh yeah i would imagine well and of course there's also the question of how does this apply if for example one of the parties is within the eu but then you have the other party is not um in terms of disputes i mean do you have the same issue in terms of enforceability or have you not seen that um if it were if it were if it follows from the ocmea decision there there is no prohibition to enforcement even within the european union because the occamy decision was only applying between intra-eubits so for example in the case i just gave where you have a canadian investor that's suing an eu member state the acme decision and principle wouldn't apply um and so the question then will be when this reform happens is the reform going to be limited to just the entry eu uh context or whether it would be uh also applicable to cases that involve foreign investors from outside the european union and again something i think we'll have to see as they continue to try to iron this out yeah no that's interesting and definitely development to be following um also on the transparency that's really interesting um i imagine that there's a lot of questions though as to for example in some cases where they might have a reason why they do not want to disclose particular information to the public for different business secrets or other issues of those kind have you seen issues with protecting and protection orders yeah we have and the way that the tribunals have been dealing with those issues is generally to allow some period of time before any of the information goes public i noted for example the delay in the release of the videotape online but there the same principle would apply to any written documents as well and the idea is that whatever document that is submitted or video that is taken you then provide the party some period of time and it can often be as much as a month uh to go through both the documents or the video tape to ensure that if there are matters that are particularly sensitive whether they're business secrets whether they are whether it's personal data that should not be released to the public that the parties have an opportunity to redact them yeah that's important yeah well and i guess you know one final question um have you seen i because a lot of times you know we're talking about cases with millions of dollars at stake they're very important cases um individuals may parties might really want them to be in person have you seen um proceedings go ahead with in-person hearings even during the pandemic or have you see seen more virtual hearings being used far more virtual hearings being used i will tell you that in 2020 um and not just my own practice but my the entire idr group um here at the firm had 20 or 30 different hearings that were rescheduled and postponed until 2021 with the hopes that we would the pandemic would subside and it would be safe enough to be able to do them in person i think all of us prefer the in-person hearings my own sense was when the pandemic first hit and so much more not just in terms of hearings but also client meetings started to be done by video there was a sense that this really was going to be the wave of the future even after the pandemic subsided my own view of it and i think many have come to this view is as we've continued to do this by video for almost a year now people are pretty anxious to get back in into a room where they can be in person i think presentations to tribunals are very different when you're in person certainly cross-examinations are much different when you're in person and even sitting down with your cl ent to work through the evidence to work through the memorials to work through the witness statements all of those things are far easier in person but we're still seeing that the vast majority of hearings are done virtually i am aware of many that are being done in person but they tend to be ones where um for example we have partners who are based in europe and um opposing councils in europe and the arbitrators are in europe and you don't have sort of the the challenges with coming over to the united states or going over to asia or the middle east and um the entry problems you would have because of the pandemic i so we are we are having some in-person hearings but far more virtual and i would say far more virtual even if one of the parties is demanding that the hearing be held in person tribunals i think were willing initially to postpone the hearing to 2021 um but at this point my sense is is that tribunals are getting um a little impatient in terms of allowing the case to just linger for long long periods of time where there's no activity in the case simply so that we can ensure there is a is a physical hearing they're effectively ordering the virtual hearings even if one of the parties is is um showing a strong preference to do it in person yeah no it's interesting i'm hearing the same um thing from other arbitrators so um but i think it's interesting to sort of watch how this develops and and it's and your view you know that you miss the in-person aspect um which of course is something that um hopefully will come back in due time right exactly well listen i really appreciate your taking the time i promise not to take up too much um i think really great developments things for us to watch that was really informative and helpful so i appreciate it great thank you amy it was a pleasure