The ICA is flexible and fast-adapting, not a dinosaur: President Alexis Mourre

Alexis Mourre was appointed President of the ICC International Court of Arbitration on July 1, 2015. Mourre, who served as Vice-President of the ICC Court from 2009 to 2015, is a member of the Paris Bar and the founding Partner of Castaldi Mourre & Partners..In this interview with Bar & Bench’s Pallavi Saluja, Mourre talks about the challenges at the ICC, the increasing competition from regional institutions, the development of an India as an international arbitration centre, and more..Pallavi Saluja: What are the key challenges you face as President of the International Court of Arbitration?.Alexis Mourre: The arbitration community at large is facing a number of challenges. One of these is the backlash we see in arbitration, particularly in the context of Investor-State arbitration. There is a growing movement of distrust against arbitration, which we have seen in particular in Europe in the context of the negotiations on the Trans-Atlantic Treaty. However, this has been seen in other parts of the world. Our concern is that this could spill over to commercial arbitration..Another challenge relates to time and cost. Large companies are growing more concerned about the rising costs and duration of arbitral proceedings. Rightly so, because costs are of course important to users and it is incumbent on arbitral institutions to ensure that arbitration remains an effective way of resolving disputes..We do not have enough women, enough arbitrators from emerging jurisdictions, and we need to give a real chance to a new generation of arbitrators.Other challenges include the need for more transparency, not only in investment arbitration, but also in commercial arbitration, as well as diversity. We do not have enough women, enough arbitrators from emerging jurisdictions, and we need to give a real chance to a new generation of arbitrators..Pallavi Saluja: What are your plans for promoting arbitration in India?.Alexis Mourre: Asia is of course the region where arbitration has been growing the most, and it is also the region where the competition is the fiercest. We are taking a number of steps to enhance our presence in Asia..As far as India is concerned, we recently had the first meeting of the ICC-India Arbitration Commission. It is an excellent group of outstanding practitioners from all parts of the country, and we are grateful to Ciccu Mukhopadhaya for having accepted to take the lead of this effort. We will also open an office in Shanghai this year, which will help us develop our offer to Chinese users and boost our presence in the entire region. We also have plans for Japan, where an ICC Arbitration Week will take place soon..Pallavi Saluja: No plans to have an office here in India?.Alexis Mourre: This is something we will seriously consider in the near future..Pallavi Saluja: In the recent GAR Hong Kong debate, the motion was: “This house believes that the ICC has become a dinosaur: in a world where regional and specialised arbitration institutions provide more flexibility to users, who needs a ‘world court’ based in Paris?”.Alexis Mourre: That motion was rejected unanimously! Far from being a dinosaur, the Court is an extremely flexible and fast-adapting institution. Our rules allow each arbitral tribunal to frame the procedure to the particular needs of each case. At the same time, we maintain the high quality of our services, in particular our unique process of awards scrutiny. Our Court practices adapt to best meet at any time the needs of our users. The administration of cases is a serious matter, and we do not take it lightly. The nine-case management teams, along with the management of the Secretariat are exceptionally trained lawyers with a vast experience in International arbitration and they are dedicated on a full time basis to give personalized attention to each matter..We have recently adopted a series of measures to enhance the quality of our services, which convey a strong message of accountability to our users..First, we will now provide reasons, whenever requested to do so by the parties, for our decisions, not only as far as challenges are concerned, but also for a wide range of other decisions, such as jurisdictional decisions, joinders or consolidations..We have recently adopted a scale setting out reductions of fees of the arbitrators in case of delays in submitting the draft award to the courts. The rule is that the draft award should be submitted to the court within two or three months after the hearing or the last substantive submission, depending on whether it is a sole arbitrator or a three-members’ tribunal. After that, the Court may reduce the tribunal’s fees unless there is a valid reason for the delay..We have also decided to publish on our website, for all cases registered as from 2016, the names of arbitrators sitting in ICC cases. This will show the quality and diversity of our tribunals, and it is again a strong message of transparency and accountability..I would like to insist on the fact that the ICC International Court of Arbitration is the only truly global arbitral institution. We are not European or Asian, Civil law or Common law. We administer cases from offices in three continents, Paris, Hong Kong and New York..Our Secretariat works in more than 25 different languages and our Court members cover 90 different jurisdictions across the world. And at the difference of others, we are not funded by any Government. No institution can better the ICC’s international approach to arbitration and provide total neutrality to its users..Pallavi Saluja: You were also an LCIA Court member. Would you share some insights about the workings of LCIA? How would you compare LCIA with the Court? .Alexis Mourre: The LCIA and the ICC are very different institutions. The LCIA is rooted in the Common Law tradition, whereas the ICC is global. The LCIA rules are much more prescriptive to arbitral tribunals than the ICC rules are. Though we are more flexible, we tend to administer cases in a more intense manner than the LCIA. Unlike the LCIA, which have a seat by default in London, our arbitrations are seated in all continents, including of course India, and we have a much broader and diverse range of arbitrators. At the end of the day, I’m convinced that we provide a better and a more global service..The LCIA is rooted in the Common Law tradition, whereas the ICC is global..Contrary to what is often believed, our arbitrations are on average not longer than those of other institutions. Our arbitrations last 18-24 months on average from request for arbitration to the notification of the arbitral award. This includes the scrutiny of the award by the Court, which normally takes three weeks, and is a quality control system which makes sure that the award will not be annulled or denied recognition..In the context of scrutiny, the Court may impose modifications as to the form of the award, and it also draws the attention of the tribunal to questions of substance. For example, an inconsistency in reasoning, or something that is unclear in the award. Likewise, the Court may draw the Tribunal’s attention to issues or claims that may not have been addressed by the tribunal, or to issues that are addressed in the award but do not appear to have been raised or properly briefed by the parties..Pallavi Saluja: Now that regional institutions are gaining more importance, what sort of a challenge will it pose for the ICC?.Alexis Mourre: Fifteen or twenty years ago, there was certainly less competition on the market. But competition is healthy; it gives us the incentive to provide a better service to our users. I have no doubt that a more competitive environment will strengthen us..Pallavi Saluja: There is increasing competition from Singapore and Hong Kong..Alexis Mourre: There is competition globally – in Europe, in America and in Asia. Even in Asia, Hong Kong and Singapore are not the only players. There is also the KIAC in Korea, the Kuala Lumpur arbitration Center, Bani, and many others. It is not a situation where two or three institutions are competing one against the other..It is a much more diverse situation on the global market. And in this diverse landscape, the ICC remains unique because of its global nature and the high quality of its services, including of course our scrutiny of awards.Pallavi Saluja: Some say that the cost or arbitrating under the ICC Rules is too high? .Alexis Mourre: Too high as compared to what? As far as the costs of the institution are concerned, it is a very minor part of the overall costs of an arbitration, less than 2% on average. As to the fees of the tribunal, there are different systems of remuneration; in some institutions, they are fixed by the hour and in others, such as the ICC, they are based on an ad valorem schedule. The ICC is not more expensive than the others. Quite the contrary..You have to, in this respect, consider several factors. The first is that the schedule incentivizes arbitrators to be efficient, because their fees are limited by the schedule anyway. In this respect, the schedule provides certainty and foreseeability to the parties. The second is that the Court exercises control on the costs of the arbitration; we have a system that provides for an average, based on the value of the dispute, with a maximum and a minimum. Fees are not necessarily fixed at the average; they depend on the time spent by the arbitrators, their efficiency, or lack thereof, as well as the complexity of the dispute and all other surrounding circumstances..Another factor is that, compared to other institutions, it is not possible in ICC arbitrations for the tribunal to charge for the remuneration of an administrative secretary. This is often a very relevant item of cost that is not present in ICC cases..Recent studies that have been published as to the compared costs of different institutions do not take these factors in to account, and in that respect they can be misleading..Pallavi Saluja: Can India ever become a preferred arbitration destination like London, Paris, Singapore, and Hong Kong? .Alexis Mourre: India has made a good move by adopting the Model Law. However, there still are points of concern, particularly with respect to the introduction of a mandatory 12 months’ time-limit for the making of the award, which can be extended for 6 months with the parties’ consent and then only by the judge..This is ill-adapted to international arbitration, where cases are often complex and require flexibility, and it is at odds with institutional arbitration, where parties entrust the institution to extend such time limits and want to avoid having to resort to the intervention of municipal courts..Any jurisdiction wanting to become an attractive destination for international arbitrations needs to restrain judicial intervention in arbitral proceedings and respect to the maximum extent possible, the parties’ will. Anti-suit injunctions are also very disruptive and they discourage parties to locate an arbitration in a jurisdiction that admits them..Anti-suit injunctions are also very disruptive and they discourage parties to locate an arbitration in a jurisdiction that admits them..What is also needed is restraint in the control of arbitral awards. Annulments should essentially be limited to issues of due process and jurisdictional questions. There should not be review of awards on the merits..Finally, it is of fundamental importance to have a judiciary that is supportive of arbitration, and a strong arbitration community that is open to the international values of arbitration..Pallavi Saluja: You practice law at Castaldi Mourre & Partners, a firm of 35 lawyers founded by you in 1996. Do you see a consolidation of the legal market in France?.Alexis Mourre: As far as arbitration is concerned, over the recent past, we have seen the emergence of numerous arbitration boutiques. You see a more diversified market now with small and medium-sized firms, providing high quality services and competing effectively with large law firms. That is good, because it offers an alternative to larger, more expensive firms.