Professor Pierre Tercier’s Keynote Speech at the Young ICCA Mentoring Programme Reunion in Vienna on 24 March 2018

Introduction

1. It is a great pleasure for me to welcome you here in Vienna, to this informal gathering, organised by Young ICCA on the occasion of the Annual Willem C. Vis International Commercial Arbitration Moot Competition.

2. First, I would like to say a few words about the institutions that are responsible for bringing us here today:

I will begin with ICCA, the International Council for Commercial Arbitration, which was at the beginning an informal group of arbitrators who gathered for the first time in Chambésy, close to Geneva, in 1961, during the negotiations and drafting of the European Convention on International Commercial Arbitration. There, the group decided to organise congresses dedicated to promoting and improving international commercial arbitration. This group was not tied to any government; it did not have any commercial ambition; it was not an arbitral institution, but a high level think tank. The group evolved to become a real association, while still keeping its original goals. It currently has more than 1,000 members and is today one of the main associations in the field. It is overseen by a Governing Board, still presided by Don Donovan, who will be replaced by Professor Gabrielle Kaufmann-Kohler in April, during the biannual congress that will take place in Sidney on 15-18 April 2018;

Young ICCA is the young branch of ICCA and functions under its auspices. It was established in 2010 and now has around 4,200 members. It aims to provide a forum for young students and professionals to exchange ideas about international arbitration and to provide them with skills training workshops, other educational activities and, in general, access to the international arbitration community;

The Young ICCA Mentoring Programme is a product of these goals. It was created in 2011 by a few members of Young ICCA who were eager to develop the ties between generations, in order to allow tomorrow’s arbitrators to benefit from the experience of prominent arbitrators – the pioneers. The principle is straightforward: Mentors (who, at the beginning, were all members of ICCA’s Governing Board) agreed to take groups of five young lawyers interested in arbitration under their wings for two years. From these five lawyers, four became the Mentees and one became the Buddy, who had a bit more experience. The programme has been highly successful and it has been expanded in order to accommodate more candidates. I imagine that the majority of you today represent this wonderful programme;

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The Annual Willem C. Vis International Commercial Arbitration Moot Competition is an original competition, which has been hugely successful. It needs no introduction. We thought it would be appropriate to take advantage of this event, which brings together hundreds and hundreds of young arbitration students and practitioners, and to gather the former and current Young ICCA Mentoring Programme participants who are currently in Vienna. It is an opportunity to meet, to get to know each other and to bond. I would like to thank Young ICCA, the Co-Chairs and the Events Coordinator for the effort they put into organising this gathering, as well as Konrad & Partners for its generous hospitality.

3. So here we are. And to make this event a little festive, I was asked to say a few words. The only reason that I think justified my invitation to speak to you today (an invitation for which I am extremely grateful) is the fact that, together with Dr. Juan Fernández-Armesto and Ms. Teresa Cheng, I am in charge of fostering contacts with Young ICCA on behalf of the Governing Board of ICCA.

4. Please, do not be anxious: I do not intend to make a long or revolutionary speech. I will only express some personal ideas on a topic, which unites us all: you, who are getting ready to take a jump into the arbitration world and I, who have been there for so many years and will still be, God willing, for another few. What I thought would be interesting is to share some of my thoughts on arbitrators with you; more specifically, on the arbitrators of the future: the new arbitrators. I will only address the topic within the context of international commercial arbitration (not investment treaty arbitration), which is perhaps more accessible to you, for the time being anyway!

5. Let’s start by noting that arbitration is currently under a lot of serious criticism: some consider that it is too slow, too costly, too burdensome, too unpredictable. Some say it is in the hands of a limited group of arbitrators who are too busy, not well-prepared and not as independent as they ought to be. I would not suggest that arbitration, in the way that it is practised today, is perfect and does not deserve any criticism. But the criticisms that have been expressed are often exaggerated and sometimes partial. Based on my experience of over 50 years in the field of law, I can confirm that the arbitral process is generally satisfactory, even though it obviously has its weaknesses, just as any human creation does.

6. Now, the fact that the legitimacy of arbitration is being called into question is all the more serious because the institution is becoming the standard mechanism for dispute settlement, on the international level at least. It is not just a professional activity that is at stake, but the exercise of justice itself. And with regard to the exercise of justice, the arbitration idea has some undeniable advantages: it is a solution that was derived from practice, developed in a flexible way in order to take into account the needs of such practice. It is adapted to diverse legal cultures; it is free of any territorial ties; it was put in the hands of experienced lawyers that the parties can choose; it is practiced with

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no excessive judicial review, and, thanks to the New York Convention, it offers the possibility of obtaining the recognition and enforcement of awards in almost every country in the world.

7. There is no doubt that national jurisdictions remain relevant and that is a good thing; but, in our field of practice, resorting to national court systems means abandoning a more neutral regime. Courts are necessarily bound to a State and, therefore, often also to one of the parties to the dispute. National judges do not always fully grasp the nature of the problems they have to address in complex cross-border disputes. And they are often overloaded with cases.

8. It follows that arbitration is vital for international commercial disputes and it therefore enjoys a quasi-monopoly as the alternative to court litigation. It is hard to imagine what it could be replaced with, that would have the same features, at least in the near future.

9. So, what can be done to answer the criticisms against it? Many measures have been proposed: we should improve the way it works, particularly by amending the laws and regulations that govern it; give arbitral institutions broader powers; reinforce state courts’ review, not only in the appointment of arbitrators phase, but also throughout the proceedings and perhaps also of the content of the awards; encourage the users’ trust by making it a subject of study and spreading knowledge on it, particularly through the major professional associations (IBA, UIA, ICCA). I will not go into the details of those measures.

10. I will, however, go into what I believe would be the most simple, efficient and obvious measure to improve the skills of those who practice it. We have all heard the phrase “an arbitration is only as good as the arbitrator”. If one wants to ensure the proper functioning of the institution, one must start with the quality of the arbitrators.1 An institution lives not so much through the setting in which it operates, as through the people who keep it alive. And yet, arbitrators constitute a vague category of people that is not clearly defined.2 Everyone knows what a judge is, how they get appointed and what they do. Everyone knows what a counsel is, how they are selected and what they do. But what about the arbitrators? That is the difficult question I will try to address.

1 Lord Hacking, Arbitration is only as good as its arbitrators in International Arbitration and International Commercial Law: Synergy Convergence and Evolution (Edited by Stefan Kröll, Loukas A. Mistelis, P. Perales Viscasillas, V. Rogers) 2011.2 Selon Yves Dezalay, il existerait un corps d’arbitres professionnels composé d’une « élite » de juristes. Ainsi écrivait-il : « Un arbitre, c’est quelqu’un qui fait carrière d’arbitre et le marché de ses clients et des intermédiaires de ses clients est fort restreint ». Et Yves Dezalay conclut, dans la pure tradition bourdieusienne, que l’arbitrage commercial international est un marché pour la conquête duquel opèrent des acteurs munis de trois types d’armes: « des armes culturelles (la détention d’un savoir), des armes sociales (les relations d’affaires) et des armes symboliques (la reconnaissance entre pairs). » (Qui sont les arbitres internationaux? Approche sociologique by Thomas Clay in Les arbitres internationaux Colloque du 4 février 2005 pp. 19-20).

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11. To make things simple, as any professor would, I will state a few things on the subject. I will start by trying to offer a description of those who are today’s arbitrators (see below I). I will then highlight some undisputed facts, which will certainly influence the evolution of these arbitrators (see below II), before suggesting some trends that relate to the new arbitrators, our focus of today (see below III).

I. Today’s Arbitrators

12. It is of course impossible to give an exhaustive description of those who are called upon to settle disputes as arbitrators. There have been some studies, but they are unclear and questionable, since there are no sufficient and reliable data. Some arbitral institutions put together excellent statistics, but those are also too dry and opaque. The difficulty is increased by the fact that a number of proceedings are confidential, or even ignored, like ad hoc arbitrations. And so many distinctions would have to be made with regard to the regions and the fields to which an arbitration is linked.

13. To simplify, I think that we can distinguish three main categories of arbitrators based on their age: I will call them the seniors, the tenors and the juniors. What I will say about them is of course very general. I wish to clarify that my comments and conclusions do not categorically apply to all members of all groups.

a) The seniors

14. If one had to categorise them in an age pyramid, I would say they fit in the range from 60/65 to 80 years old. The upper limit is of course flexible. When life does not decide for them, some retire earlier and others later; among the latter, there are some remarkable examples!

15. It is in fact this category one has in mind when one wants to provide a very general and simplified characterisation of arbitrators. It is a rather limited group of men (and women); most of them come from the western world. Many of us have at some point heard Sarah François-Poncet’s expression “pale, male and stale”. Do you find this to be a fair description? Here is why I do not think so:

The members of this group hold diverse positions: some are attorneys, but there are also professors, judges and other government officials or professionals from other fields,3 who have often changed career fields. Most often, they act mainly, if not exclusively, as arbitrators. Sometimes, they will stay attached to a law firm. But there is a growing number of arbitrators leaving law firms to start flying solo;

3 Caley Turner, “Old White Male”: Increasing Gender Diversity in Arbitration Panels, Student paper from Pepperdine Law School (2014); Charles J. Moxley Jr., Selecting the Ideal Arbitrator, Dispute Resolution Journal (August/October 2005); Thomas Clay, Qui sont les arbitres internationaux? Approche sociologique in Les arbitres internationaux, Colloque du 4 février 2005, Centre français de droit comparé, volume 8 p. 30.

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They usually have not received special education or training in arbitration, if only because, at the time of their studies, this was rather scarce and they have not necessarily gained that type of experience in law firms. Their knowledge of arbitration is based solely on their participation in arbitral procedures as arbitrators. With it, they have gained a long experience, a solid reputation, and above all, a wide network;

It is therefore quite natural that they get selected to handle important and complex cases. Law firms and parties naturally turn to them, as they are anxious not to take any risks in appointing arbitrators they do not know. It is symptomatic to point out that the law firms which work on these cases are very few as well, thus creating a very narrow community;

These arbitrators are generally not specialised, but have gained a massive experience in rendering decisions, sometimes in very technical fields, sometimes with the help of experts. Their traditional role is to decide the outcome of a dispute, based on the available evidence and the applicable law. They settle disputes, following traditional methods, which does not in any way mean that they do not adapt to evolutions, particularly regarding the use of modern technology;

It is undisputed that this group is relatively closed and difficult to enter. Although not entirely excluded, newcomers are few, as they do not benefit from the same experience in the field, regardless of their other qualities. One does not become a senior arbitrator overnight;4

The group is mainly composed of men,5 even if there are a few women, all remarkable. Members still mostly come from the western world, even though nowadays there are more and more arbitrators from others parts of the planet as well, more and more connected notably through networks such as ICCA. In reality, and contrary to popular belief, it is not so much the existing group of seniors that is responsible for keeping newcomers out, as it is the parties themselves and their counsel, who systematically choose the same arbitrators again and again.6

16. I do not mean to come across as a narrow-minded spokesperson for the seniors’ union; however, I cannot help but think that this category has its value. It is responsible for giving arbitration the shape it has today and for establishing its reputation. This group is mostly made up of strong personalities. And it is justified that the settlement of the

4 Thomas Clay has pointed out that, whether they are counsel or arbitrators, the people who take part in international arbitration make part of their living with these disputes, which sometimes involve gigantic amounts of money. That changes the stakes, compared to a community of scientists whose works only have a modest monetary value. The logical consequence is that the practice of arbitration sparks some extremely vivid competitiveness, and a hard-earned spot will usually be jealously guarded. Newcomers are not welcome (Thomas Clay, Qui sont les arbitres internationaux? Approche sociologique in Les arbitres internationaux, Colloque du 4 février 2005, Centre français de droit comparé, volume 8 p. 18).5 Thomas Clay, Qui sont les arbitres internationaux? Approche sociologique in Les arbitres internationaux, Colloque du 4 février 2005, Centre français de droit comparé, volume 8 pp. 27-28.6 Thomas Clay, Qui sont les arbitres internationaux? Approche sociologique in Les arbitres internationaux, Colloque du 4 février 2005, Centre français de droit comparé, volume 8 p. 25.

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cases of a considerable magnitude is entrusted to such personalities;7 the same way that, in state jurisdictions, the most senior judges – the number of which is also limited – are the ones handling the most difficult and complex matters.

17. The members of this group are obviously not the “new arbitrators” and they are going to keep their position. It seemed useful to introduce them nonetheless, to be able to assess the evolution we are currently witnessing.

b) The tenors, or as we say in French, the « ténors du barreaux »

18. The expression I am using is perhaps controversial, because the seniors are also tenors to some extent, but I mean to cover here the category of arbitrators who, without being part of the seniors yet, have already settled into the arbitration world. This category forms the biggest pool of arbitrators. If I dared classifying them in the age pyramid, they belong to the range going from 40-45 to 60-65 years old. They are in their prime and have the following features:

The main feature of this group is that most of its members are affiliated to law firms, which are very active on the arbitration market; they are generally large law firms, either international or national. The members of the group are often partners in the litigation and/or arbitration departments. One would without a doubt find professors in this category as well, for whom this activity constitutes an adequate complement, but most of them will also be tied to a law firm in some way;

They have not had a specialised theoretical education either, but they have generally practiced arbitration as associates in law firms, climbing up the ladder and going from junior to partner;

Their most striking feature is that they act mainly as counsel, but after some years, as arbitrators as well. They wear two hats.8 For obvious reasons, notably financial, they have a preference for counsel work, but they also enjoy acting as arbitrators. They already form a rather closed, limited club that requires a solid record, network and reputation at the entrance;

Like the seniors, they are active in cases related to various industries, although one can observe a tendency toward specialisation. Because of the generational shift and diversification in dispute resolution techniques, they are more drawn to alternative mechanisms, such as mediation, and they are more open to the development of new and original techniques, than their senior counterparts;

7 Catherine A. Rogers, The Vocation of the International Arbitrator in American University International Law Review Volume 20 Issue 5, 2005 pp. 959 and 964.8 Horacio Grigera Naón, Factors to Consider in Choosing an Efficient Arbitrator, in Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, 286 (A. van den Berg, ed., ICCA Congress Series N° 9 1999); In the context of litigation, see also Mr. Romain Jordan and Prof. Benoît Chappuis’s discussion on the matter: Par souci de transparence, il faut séparer les fonctions d’avocat et de juge in Plaidoyer, Revue juridique et politique 1/18 of 5 February 2018.

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Despite the high standard required, their group is far more open than the previous one.9 The statistics that we have show that the number of new arbitrators is rising.10 The network between law firms and through associations most probably fosters this increase. There are also more women in this group, even though we are still far from achieving equality. What is most striking is the arrival of players coming from other parts of the world. This diversification is a rejoicing development and it will continue.

19. Today, this category constitutes without a doubt the foundation of arbitration.

c) The juniors

20. It is time we start talking about you, the juniors ranging from 30 to 40/45 years old – though I imagine there are plenty of you here today that fall below that range. People rarely get appointed earlier,11 but they later often slide into the category of the tenors. Here are a few characteristics of the juniors category:

One of the first features worth mentioning about this group is that most of its members have, during their studies already, had a specialised theoretical training in arbitration. They have benefited from specific courses during their university studies, they have completed programs offered by law faculties or other organisations, they have taken part in an ever growing number of competitions. So they have been preparing and they are ready to enter the arbitration world, but they soon realise that “the way in” is extremely narrow;

The difficult part for them is to acquire practical experience, conditio sine qua non for practitioners having made their way in to start considering them. Yes, internships with law firms and institutions are plentiful, but they are always limited in time and uncertain as to the future perspectives of career. The most classical way is to secure an internship at a law firm that is specialised in arbitration and gain experience, in the hope of securing a more permanent position there. The game can then begin;

This group is decidedly larger and we will certainly find more women in it – as female students account for the majority of students – as well as representatives of all parts of the world;

But this group of young arbitrators remains limited12 as the issue is still there: how does one get appointed? We have mentioned the fact that taking the law firm path is challenging, even more so as some will try to discourage or even

9 See Thomas Clay, Qui sont les arbitres internationaux? Approche sociologique in Les arbitres internationaux, Colloque du 4 février 2005, Centre français de droit comparé, volume 8 pp. 23-24.10 In 2016, of the 496 individual appointments, 82 (or 16.5%) were of candidates not previously appointed by the LCIA.11 Thomas Clay, Qui sont les arbitres internationaux? Approche sociologique in Les arbitres internationaux, Colloque du 4 février 2005, Centre français de droit comparé, volume 8 p. 28; See also GAR article ICSID looks to younger lawyers, https://globalarbitrationreview.com/article/1153275/icsid-looks-to-younger-arbitrators.12 Catherine A. Rogers, The Vocation of the International Arbitrator in American University International Law Review Volume 20 Issue 5, 2005 p. 967.

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forbid their younger members to accept arbitrator mandates. Some institutions play an exemplary role in this context by favouring the younger generation in the appointments they make – I am referring to the ICC in particular,13 but also to SCAI or DIS;

The proceedings in which they get appointed concern of course cases, where the amount in dispute is of lower value. That hardly matters however – even if those are not big money makers, they provide an excellent opportunity to acquire experience and to put yourself out there. Besides, those cases are not necessarily the easiest ones; I have expedited proceedings in mind, which can prove cumbersome, because of the extremely tight deadlines they provide for. I also think of the low profile cases in which unexperienced counsel are involved or where the parties are not represented by external counsel, which can turn into a procedural nightmare for young arbitrators with relatively little confidence and authority in the industry at this early stage of their career.

21. Are things going to change? I am positive they will, with influential impulse of the ongoing transformations I have mentioned. You should benefit from it.

II. The factors of evolution

22. So, I am stating the obvious by saying that things are changing and it has only just begun. These changes will necessarily have a direct influence on the choice and the status of the “new arbitrators”. I believe the three major factors for this change are because of: internationalisation, generalisation and professionalization.

a) Internationalisation

23. Although arbitration had been concentrated in western countries for years, today many places have caught up and arbitration has become truly international.

It is first of all obviously related to the globalisation of the economy: companies from all countries are present on all markets. Asia comes to mind of course, but also the Arab and African countries, as well as countries in Latin America. And the business interactions this generates, necessarily creates a need for dispute resolution mechanisms. In light of the growing diversity of the players involved, national solutions are less and less appropriate;

Market globalisation has created an aggregation of international commercial rules and uses. Those who intend to throw their hats in the game must play by such rules. And these rules are to a large extent controlled by arbitration. The institution thereby benefits from important developments;

This explains why today, all States have more or less modernised their legislation – most of them on the basis of the UNCITRAL Model Law, thus

13 See footnote no. 11; see also GAR article CPR Institute adopts young lawyer rule, https://globalarbitrationreview.com/article/1159319/cpr-institute-adopts-young-lawyer-rule.

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also harmonizing regimes. Moreover, almost all States have ratified the New York Convention, which proves their willingness to be bound by the international regime of arbitration;

The result is impressive, as all the players on the market, all the lawyers who are active in the field apply the same rules, or at least the same principles. The Vis Moot Competition is the most striking example: it is possible to submit a case to a few thousand lawyers from every corner of the world to look for a common solution, regardless of their own legal cultures. The ways to apply the rules may vary, but the basis is the same;

The big international law firms have felt this wind of change and settled down in all main commercial platforms of the world, offering chances to young lawyers at the same time; national law firms in these countries have also grown. This is also true where arbitral institutions are concerned (ICC, ICDR, LCIA) – and new very dynamic centres such as SIAC, HKIAC, DUBAI, CIETAC, CRICRA, OHADA and centres in Brazil, as well as the regional centres that have been created;

This evolution is pleasing to watch, as it widens the playground for potential counsel and arbitrators, offering younger lawyers ever more opportunities to become more present in the market. It is an opportunity as well as a risk, since it also creates more competition.

24. However, the evolution, which proceeds step by step, is far from being complete:

Currently, it is clear that, even with these new players, counsel and arbitrators from western countries keep their “front seat”, and this is often worsened by the fact that the parties will choose a seat of arbitration in a western country. For things to change, mentalities need to change and this should be transcribed in a new and more open drafting of arbitration clauses;

We will have made a decisive step forward once companies and States will have the courage of appointing counsel and arbitrators who are not from countries which have a long arbitration tradition, but instead arbitrators from their own or a neighbouring region. Why would an Asian or African party need to be represented by western counsel, or need to appoint a western arbitrator, when there are more and more highly qualified candidates available from the region, who often come from the best universities and who are perfectly capable of handling their cases? A young Egyptian was recently explaining in Zurich that he had refused every offer he had received from international law firms to stay in his home country. “What matters”, he said, “is not the country in which you practice, but the quality of the work you do”;

Another step, which might still be a long way ahead, will be when all the players in the arbitration world make up a homogeneous community, at which point there will not be anymore any objection – even for a case based in Europe or the USA – to appoint an Asian or an African arbitrator, because they will have acquired the reputation that justifies their appointment. Such

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evolution will also depend on the evolution of certain jurisdictions’ friendliness or not towards arbitration, as there are still great variations in that regard. Nevertheless, the true actors in the internationalisation of arbitration will not be the arbitrators, but the parties and counsel who draft the arbitration clauses and influence the choice of arbitrators.

25. The fact remains that only internationalisation can open new doors to the future players that you are. It will not be the seniors’ prerogative and the tenors might take some advantage, but the future will mostly be yours.

b) Generalisation

26. As I have mentioned previously, arbitration has become the ordinary mechanism for dispute settlement. From “extraordinary” at its initial stages, it has become common. This comes with some obvious side effects:

On the number of arbitrators. The statistics we have speak for themselves: the number of arbitrators has exploded and there is no reason for this trend to stop. The idea of a closed circle has been left behind, or at least arbitration has widened its borders so much that it does not really constitute a restriction to access the market;

On the gender of arbitrators. The space allocated to women, which was still extremely limited a few years back, has widened.14 One only needs to look at how many women are present in courses dedicated to arbitration in law faculties, or how many women are taking part in the VIS Moot Competition. The number of women who are active in the market keeps growing. The issue remains that it is extremely difficult for them to climb up the ladder, reach higher positions and get appointed as arbitrators in particular. Great efforts are being made by arbitral institutions in this regard. Law firms and arbitral institutions alike are making formal commitments. You may have heard of the Equal Representation in Arbitration Pledge: in recognition of the under-representation of women on international arbitral tribunals, in 2015, members of the arbitration community drew up a pledge to take action;

But the discrimination still exists and it is striking. The problem is one of mentality, where the appointment of arbitrators is concerned: this is still in the hands of the parties and their counsel. Whatever they say, they are still extremely conservative. One has to wonder if we should not, as some suggest, provoke a real choice by establishing quotas. This measure is certainly not pleasing, but at least, it provokes. What is the risk? That we might appoint women who are not up to the task? As if all the men who do get appointed were. So, it is time for women to “run the [arbitration] world”;

14 As per the ICC statistics, of 1488 arbitrators nominated or appointed in 2017, 249 were women (16.7%), representing 85 nationalities.

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On the mechanisms of dispute settlement. It is also clear that we are searching for new tools and mechanisms, putting into question the quasi-monopoly that arbitration holds: the alternative mechanisms such as mediation, dispute boards and expert determinations. The most innovative law firms will be able to offer a wide range of services, without necessarily prioritizing arbitration. We should also anticipate the role the new technologies will play, not only in the organisation of procedures, but also probably in the decision-making process;

So, globalisation is creating important shifts in the markets and opening up possibilities that you need to take advantage of as much as possible.

III. A few trends

27. It is obviously impossible to say what the future holds, but I believe we can observe three trends pertaining to arbitration today: an exclusive activity, an ever more specialised activity, and an ever more open activity.

a) The need for an exclusive activity

28. An arbitrator’s activity is peculiar in the sense that, as that of a judge, it requires a particular mindset. Because arbitrators render justice, they must be completely independent and must be able to conduct the proceedings and decide in complete impartiality.

29. I cannot hide – and I am not the only one – that I am not in favour of “double hatting”. Acting as both arbitrator and counsel certainly has its advantages, especially to grasp all aspects of this activity, but both roles remain very different. The arbitrator has the role of an outsider, free from the burden that the parties’ interests represent. The counsel, on the other hand, has the role of a fighter, a winner, which explains why some attorneys will prove to be “sore losers”. I have had my share of good experiences on tribunals with people who wear both hats, but I do not think this practice should be overly encouraged. It only reinforces the impression that a party-appointed arbitrator, if they also act as counsel on the side, also gets appointed because of their strong convictions and the role they play in other cases. Double hatting is also harder to reconcile with the guaranties of independence and confidentiality which keep becoming more rigorous.

30. The difficulty is that, commercially speaking, it is tough to act as arbitrator exclusively. The seniors manage to do it because their position guarantees they will get enough appointments. It is however more difficult for the younger ones, since they have to make a living. Some succeed, but it takes courage, resources and luck. For instance, by taking positions indirectly related to arbitrators, such as secretary to a tribunal. Others have decided to partner up. Others still have another activity on the side, such as teaching.

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b) The need for a specialised activity

31. I have also already mentioned that currently, most arbitrators are not specialised in a specific field, even though we can observe a growing trend. This leads to the following fact: the only way for arbitrators to have enough information on the subjects they know little about, is to rely on experts that they or the parties will appoint. They are indispensable, but we resort to using them too much. I think there are good reasons for arbitrators to specialise. There are more and more fields that are too complex to be handled by anyone who is not familiar with those fields or does not have some expertise. That would also constitute a solution to make proceedings shorter and cheaper. It would also be a way to come back to the roots, since at the beginning, the idea was to find an arbitrator who knew the field and the issue at hand. Finally, it can constitute a good way for newcomers on the arbitrators’ lists to stand out from the pool of candidates and so open the door to a larger and more diversified range of popular arbitrators.

32. Specialisation may also be justified from a commercial perspective and offer arbitrators a privileged position among their competition. The younger generation is prepared and ready to face that challenge.

c) The need for more openness

33. Arbitration is an extraordinary institution and it must be both defended and improved. This task falls mainly on you. And it will only be achieved if the new generation shows enough openness:

This is dependent on the education and training you have received. You are all far better prepared than your predecessors to deal with the specifics of arbitration. In this regard, you have the advantage of speaking what I would call “the same language”. And you can acquire the necessary knowledge in places where lawyers from all over the world meet: the VIS Moot Competition is the best example of that.

It is also dependent on whether you have mastered issues of commercial law. It is not sufficient to know the procedure: it is just as important, if not more to know the law applicable to the merits. In this field too, things are changing and the solutions we come up with are more and more aligned with international rules and practices. In this regard, your generation also has the upper hand.

Openness also depends on the understanding one can show of the way other people might grasp a problem, in light of their own culture. One must acquire an ability to listen. Those who pay attention will be able to adapt to the changes that are coming and your generation is better placed than any of the previous ones to face them.

Conclusion

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34. A young lawyer asked Jan Paulsson what he should do to become an arbitrator. Jan Paulsson replied: “One must have a good legal training, be fluent in multiple languages, gain as much experience as possible … and pray”. To some extent, it also takes a share of seizing the right opportunity and luck to succeed.

35. But I do not wish to discourage you: I wish to convey a positive message. Looking at the pace at which things change, the increased needs and expectations we are facing, there is space for many new players in the arbitration market. When I follow the path taken by students who have followed my courses and seminars, or interns and associates who have worked for me, I am amazed to see how many of them succeed in developing great careers for themselves. It takes some patience and a certain dose of passion, but it is possible.

36. Not everyone will succeed, and this is not a tragedy. Arbitration is not the only option out there, and there are so many other interesting and respectable fields. And whatever happens, which is always for the best, I hope that those who do not stay on this track will retain a strong impression of what makes arbitration what it is: the understanding of others and of the importance of the good exercise of justice.

37. I wish you all a wonderful career.

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