International arbitration is a very competitive market and jumping from 11th to fourth place overall in the GAR 100 Survey 2017 is quite a feat. How did you achieve this?
Allen & Overy’s international arbitration group improved across “almost every metric” that Global Arbitration Review uses to assess firms’ performance for its GAR 100 Survey.
While we are obviously pleased by this strong performance, it is the natural result of considerable investment in our global International Arbitration practice over a number of years. We focus on representing clients in the largest, most complex, cross-border disputes and pride ourselves on providing a seamless, ‘one-stop’ service, including carrying out the advocacy in our cases ourselves and using our in-house Project Management Office.
Our rankings – both in GAR and other publications – reflect a phenomenally busy year for our team: GAR records twice as many hearings in the "bet the company" and "large" categories for A&O compared with last year and a USD6bn increase in the value of this work. In addition to a healthy diet of commercial arbitrations, we have one of the most active investment treaty practices in the world, with eleven offices currently representing investors and/or States in high-profile treaty claims.
In addition to receiving repeat instructions from several multinational and State clients, we continue to gain instructions through strong relationships with the firm’s stellar practices in areas such as banking and finance, energy, infrastructure and projects, and corporate.
The quality of our lawyers is recognised in the market, and confirmed by the fact that A&O partners hold leadership positions in two leading arbitral institutions; Matthew Gearing QC, as Chairman of the HKIAC, and Judith Gill QC, as President of the LCIA, while Kate Davies and James Freeman are ranked among the Most Highly Regarded Individuals in Who’s Who Legal’s Future Leaders - Arbitration 2017 (a GAR sister publication).
Could you give us a brief synopsis of what’s been happening in international disputes in the past year or so?
Ongoing geo-political instability in many parts of the world has continued to drive international arbitration activity in the projects and infrastructure, and energy and natural resources sectors.
We have also seen an increase in large disputes arising out of major construction projects. These cases are invariably complex and high-stakes, with a number involving States. While the relevant contracts typically provide for commercial arbitration, several disputes have also gone to investor-State arbitration.
Regulatory changes negatively affecting foreign investors in the renewables sector continues to drive numerous disputes under the Energy Charter Treaty. Our work for over 30 clients in nearly a dozen renewable energy claims against Spain has seen a number of important hearings over the past year. These cases also led to a EUR128m Award in favour of one of our clients, which represents Spain’s first defeat in these claims.
Statistics published by institutions such as the LCIA match our own experience, showing the increased use of arbitration to resolve banking and financial services disputes. Historically more pronounced in the Asia Pacific region, in the aftermath of the global financial and Eurozone crises we have seen evidence of greater activity in this sector in Europe.
Arbitration-related litigation – a field in which Allen & Overy has longstanding expertise – has been particularly active for us, with representation of clients in several high-profile (but currently confidential) cases in the domestic courts in Europe.
The use of litigation and arbitration funding is becoming more mainstream, leading to an increase in claims. Mediation and adjudication continue to be sought after, to keep costs down and to resolve disputes quickly, in particular for smaller and less complex claims.
Following the UK’s vote to leave the EU, our public international law practice has been advising a number of major UK and international clients on managing risks relating to Brexit.
What are the recurring themes in these conflicts?
Arbitrations in the energy and natural resources market have been driven by the end of the commodities super-cycle and by price fluctuations in the market. These trends have had an adverse impact on the viability of energy infrastructure projects and have also led to disputes regarding amendments to long-term pricing contracts to cater for changed market conditions.
As noted above, political volatility, as well as a desire to exert greater control over foreign investors and increasing resource nationalism in emerging markets, have led to continued activity on the investment treaty side. Retrospective changes made by cash-strapped governments to regulatory regimes in certain sectors, in particular energy and banking, have seen an increase in disputes as investors seek to recover losses caused by these changes.
The fall-out from the financial crisis is still spawning a number of disputes that are subject to arbitration, including those arising out of measures taken by governments to rescue financial institutions adversely affected by the crisis.
Corporate activity such as M&A, JVs and distribution agreements, often associated with investments in developing markets, continues to throw up a regular stream of disputes, often due to investments failing to live up to expectations.
On the IP side, patent disputes involving SEP and FRAND issues are increasingly being referred to arbitration due to the need to preserve confidentiality of sensitive information.
Is arbitration on the rise compared to litigation? Where do you see it heading in the future?
Whilst both arbitration and litigation will continue to be the principal means of resolving disputes, we see arbitration having an increasingly important role.
In an uncertain world, where political and economic volatility are prevalent, and where clients look to resolve disputes quickly and cost effectively, arbitration has certain advantages over litigation.
Arbitration’s key benefits include flexibility (choice of law, rules and arbitrator), neutrality (particularly in markets where rule of law is less developed and there may be political interference in the court system), the confidentiality of proceedings, and widespread recognition and enforcement of awards under the New York Convention.
Whilst arbitration’s relative advantage in terms of cost and speed is seen to have diminished in some respects, moves by several arbitral bodies to increase efficiency, such as the introduction of summary and expedited procedures, should help maintain its competitive advantage.
Other trends suggest the potential expansion of arbitration as the preferred method of dispute resolution. These include the development of new arbitration centres around the world, potentially leading to increased activity in certain regions, and the growth of arbitration in sectors previously the preserve of litigation, such as TMT, life sciences, the financial sector and competition disputes.
In relation to the UK specifically, a degree of uncertainty remains over the future of litigation before the English courts in an international context after the Brexit vote. The UK Government’s position paper , which indicates an intention to sign up to both the Hague Convention on Choice of Court Agreements and the Lugano Convention, gives cause for optimism. London-seated international arbitration, however, does not suffer from such uncertainty, as it has always been largely insulated from EU law and is unaffected by the UK’s decision to leave the EU.
All this points to a healthy future for arbitration.
How did your corporate membership with CIArb come about and what attracted you to become a corporate member?
A number of lawyers in Allen & Overy’s international arbitration group have held CIArb membership over the years. The CIArb recently launched a corporate membership option, in addition to its individual memberships. Having had the opportunity to discuss this new type of membership with senior members of the CIArb team, when Allen & Overy recently hosted a Directors’ strategy day for the Institute, we opted to become the CIArb’s first corporate member. One of the key draws is that it provides access for our whole global team to the CIArb’s online materials, training and conferences, and the opportunity to further our involvement in shaping policy development in the dispute resolution sphere.
 Providing a crossborder civil judicial cooperation framework – A Future Partnership Paper, 22 August 2017, Department for Exiting the European Union.
If your organisation is interested in Corporate Membership, please email firstname.lastname@example.org or call Owen Brigden on +44 (0)20 7421 7469.