Young ICSID Profiles Part Fourteen – Life of Counsel in ISDS

Young ICSID is delighted to present the latest edition of its profiles showcasing skilled young professionals in the field of international investment law and dispute resolution. Each issue delves into practical aspects of career development and skill enhancement, offering perspectives from young professionals across the globe.

In this issue, we had the pleasure of interviewing three practitioners offering their insight into the life of counsel in ISDS: Yaye Diabaté, Senior Associate at Clyde & Co in Paris, France; Elliot Luke, Partner at Clifford Chance in Perth, Australia; and Mailis Meier-Lutterodt, Senior Associate at Squire Patton Boggs in Prague, Czech Republic.

These interviews were conducted independently and in writing. There was no coordination or collaboration between the interviewees. The opinions expressed in this publication are those of the interviewees. They do not purport to reflect the opinions or views of ICSID, nor those of the organizations with which the interviewees are associated or employed.

Could you briefly introduce yourself — how you began your practice in ISDS, and what type of cases you have mostly worked on? 

Yaye: I am a senior associate in the international arbitration practice of Clyde & Co in Paris. I represent companies and State-owned entities in international arbitration proceedings arising from investment protection instruments, international commercial agreements, and design and construction contracts, with a focus on Africa and the Middle East. I also advise companies in proceedings before Dispute Adjudication Boards and on pre-contentious matters. I also sit as arbitrator.

I was first introduced to ISDS through a class of international economic law at the Sorbonne University in Paris, during my Master’s degree. Born and raised in France from Senegalese and Guinean parents, I have always wanted to work in a field that reflected the international environment I grew up in. As I frequently travelled between Europe and Africa, I had early exposure to some of the issues that underlie many of the cross-border disputes. What drew me to ISDS more particularly is the fact that it sits at the intersection of international law, public policy and cross-border economic activities. I find it fascinating that investment disputes often require counsel to understand not only legal issues, but also the economic, regulatory, and political context in which investments operate. Students who are passionate about international law would even call it the “crème de la crème” of international arbitration disputes! 

Elliot: I am a partner at Clifford Chance Australia, based in Perth. The focus of my practice is international arbitration (both commercial and investor-State arbitration), primarily in the natural resources sector. I also advise clients on contract negotiations with sovereigns in relation to large-scale investments in the energy, infrastructure, and resources sectors.

My path into investment arbitration was somewhat circuitous. I started as a commercial litigator, then took a role as an academic at Melbourne Law School before completing an LLM at Cambridge University, and then ultimately joining Freshfields' international arbitration group, first as a stagiare in Paris and then as an associate in Washington, D.C. After five years in Washington, I returned to Australia in 2021 to join Clifford Chance.

A key focus of my practice has always been investment treaty disputes in the natural resources space, although I've also acted in disputes across sectors as diverse as agribusiness, infrastructure, pharmaceuticals, technology, and shipping. These days, most of my cases involve mining projects, which is a product of my location in one of the world's most significant mining hubs, as well as current geopolitical wranglings over strategic minerals. My geographical focus is now broader than it once was, and I'm currently acting in disputes involving projects in Africa, Asia, and Latin America, and for clients in Australia, the UK, the US and elsewhere.

Mailis: I am a senior associate in the dispute resolution team at Squire Patton Boggs, where I act as counsel in both investment and commercial arbitration cases. I also co-teach a course on international investment law at the University of Tartu in Estonia, my home country.

I was first introduced to ISDS during my LLM studies at the University of Amsterdam. I initially enrolled with the intention of specializing in public international law but was soon drawn to the more practical field of international investment law, which combines elements of public international law and commercial law. After graduating, I sought opportunities in the field and joined a law firm in Estonia that was acting as co-counsel to the State in an ICSID arbitration concerning water tariffs.  

While practicing law in Estonia, I was fortunate to work on a few ISDS cases alongside domestic litigation and arbitration. However, I was eager to focus solely on arbitration, which led me to join Squire Patton Boggs, where I’ve continued to focus primarily on investment treaty disputes, often acting for the State.

The cases I have worked on span a range of sectors, including renewable energy, infrastructure, banking, and real estate. Despite the variety of industries, the central question is the same: whether the State’s regulatory measures (or lack thereof) comply with its obligations under applicable investment treaties.

Walk us through the lifecycle of an ISDS case you have worked on — what were the major milestones, and what was the most memorable moment/phase?  

Yaye: The ISDS case that will probably remain one of the most memorable I have worked on involved what we could consider as the classic lifecycle of an arbitration case (understanding the facts, assessing the legal framework, preparing written submissions, managing document production, working with witnesses and experts, and ultimately preparing for the hearing). However, what made the case quite unique was the very particular context in which the dispute arose. The case involved a very complex set of facts that related to a major political event that was widely reported and commented upon at the time. This led to the production by each party of lengthy submissions.

Elliot: As a junior associate, I spent four years living and breathing a case involving a mining investment in a Latin American State. It was a fascinating case for several reasons, not least from a procedural perspective, involving a bifurcation request, a non-disputing party application from a number of NGOs (amici curiae), and a further non-disputing party application, this time from a State party to the treaty. A majority of the tribunal ultimately determined that the respondent had violated its treaty obligations. However, in doing so, the tribunal bifurcated the damages phase proprio motu. I was not involved in the subsequent phase of the arbitration, but it is a matter of public record that a majority of the tribunal ultimately declined to award damages. Post-award proceedings remain pending.

For me, the most memorable phase of the arbitration was the final hearing, which was my first at ICSID. It's often said to junior lawyers that you learn the most at a final hearing, and I fully agree. Seeing four years of work come together over five days, with oral arguments from some of the world's most well-known advocates before a tribunal of esteemed practitioners and academics was a highlight of my early career. 

Mailis: I was recently involved in helping a European State involved in a dispute under the Energy Charter Treaty (“ECT”) brought by a Swiss-registered renewables investor. The tribunal dismissed the claim as inadmissible under the ECT’s denial of benefits clause. Several key milestones contributed to this outcome.

First, during the constitution of the tribunal, we successfully challenged the claimant’s nominated arbitrator based on issue conflict.

A second milestone was the strategic framing of the State’s jurisdictional objection under the denial of benefits clause, on grounds that the claimant was ultimately controlled by third-State nationals and lacked substantial business activities in its claimed home State. We also successfully sought bifurcation, which significantly streamlined the proceedings and reduced overall costs.

A memorable phase was the tribunal’s decision to request and review the drafting history of the ECT on the question whether a State must give prior notice before invoking the denial of benefits clause. We obtained materials from the Energy Charter Secretariat to argue that the treaty drafters did not intend to impose any such notice requirement. This proved important for the tribunal’s determination to divert from prior decisions which had found that such notice was required.

Where in the lifecycle of an ISDS case do you think counsel adds the most value?

Yaye: Counsel adds the most value at the very beginning of the case. Early strategic decisions can have a significant impact on the entire arbitration. Understanding the facts, identifying the strongest arguments, and building a coherent case theory are essential.

Counsel also plays an important role in helping clients navigate what can be a lengthy and complex process. Beyond legal analysis, there is real value in providing strategic guidance and helping clients maintain a clear vision of their objectives throughout the proceedings.

Elliot: Good counsel is indispensable over the entire lifecycle of an ISDS case, and the role of counsel evolves with the case. During the pre-arbitration phase, the client may not even be aware of the existence of, let alone the protections available under, an investment treaty. At this stage, it is counsel's role to educate the client on its rights or obligations and to assist the client to understand how international arbitration works, including by explaining annulment and enforcement. Where the client is an investor, counsel will often additionally be tasked with securing litigation finance. This typically involves preparing a merits advice, obtaining preliminary opinions from experts, advising on funding terms and mechanics, and supporting the funder through its due diligence process.

Once the dispute resolution procedure under a treaty is triggered, counsel takes on the additional role of advocate, which involves representing the client in settlement discussions (if any), preparing written submissions and procedural correspondence, and conducting oral advocacy. Counsel must therefore be advocate, negotiator and guide, all while retaining a commercial view of the arbitration. This is crucial – we, as arbitration practitioners, enjoy arbitrating, but the client's interests may be better served by settling, so counsel must work closely with the client to identify and pursue the appropriate strategic goals. 

Mailis: Counsel adds the most value in the early stages of a dispute, when the overall case strategy is being developed. Decisions made at that stage often shape the course of the proceedings and can be difficult to revisit later.

This includes assessing the strengths and weaknesses of the case and developing a coherent case theory that will resonate with the tribunal. At this stage, counsel also plays a critical role in advising on strategic procedural matters, such as the choice of arbitration rules, the constitution of the tribunal, and the timing of the submission of each claim and defence to exclude the risk of these being deemed inadmissible or waived.

What does a typical (or ideal) ISDS case counsel team look like, and how does the division of labor shift as the case moves from beginning to end? 

Yaye: It depends on the nature of the case, the complexity of the issues and the amount in dispute. An effective ISDS counsel team combines different levels of seniority and areas of expertise. An ideal counsel team would be composed of one or two partners, two or three senior associates, each leading one workstream (divided by legal issue, or by aspects of the case (facts, legal analysis, quantum)), and several mid-level and junior associates.

At the outset, the focus is usually on fact-finding, legal research, and case strategy. The junior and mid-level associates would be heavily involved in the first two, under the supervision of the senior associates and partners, who would in parallel define the case strategy. As the arbitration progresses, the work increasingly involves document management, witness statement preparation, and coordination with experts, in order to prepare the submissions. Associates would usually do most of the work at these stages, led by the senior associates, and partners would usually intervene at the review stage. By the hearing stage, the objective is to have a team who functions as a coordinated group, based on mutual trust, where each person's contribution is essential to the overall presentation of the case.

Elliot: A typical team will comprise international and local counsel. The role of international counsel is usually to advise on and manage the arbitration itself, whereas local counsel will usually advise on the domestic law aspects of any State measure(s) in question, for example, whether a license revocation is lawful, how new regulations are likely to impact an investment, or what avenues may be open domestically for seeking review of the State's measures. The answer to these questions will frame the client's case under international law, so the relationship between international and local counsel is complementary.

As to team composition, the ideal (international counsel) team will comprise two partners, two counsel or senior associates and a number of junior associates, depending on the complexity of the case. Within the team, there will typically be a facts/merits workstream and one or more separate expert evidence/damages workstreams, with a senior lawyer responsible for each workstream, under the partners' oversight. Junior associates are usually responsible for conducting legal research and piecing the case together from an evidentiary perspective, as well as preparing first drafts of written submissions and witness statements. Senior lawyers supervise this work before a partner settles the draft in consultation with the client. At hearings, junior associates typically prepare opening presentations and cross-examination scripts for senior team members and second-chair cross-examinations. Oral advocacy is usually conducted by senior members of the team, but, where appropriate, I like to allocate discrete portions to more junior team-members because, in my view, it's important to develop oral advocacy skills (and the self-confidence that comes with them) early. 

Mailis: In my experience, ISDS cases are typically handled by core teams of four to eight lawyers, with six being a common team size. Given the breadth of factual, legal and economic issues that arise in these disputes, it is rarely feasible for a single lawyer to manage all aspects of a case.  Usually, two or three partners are supported by three or four associates of varying seniority and expertise.

Ideally, the team includes a lawyer qualified in the law of the respondent State and, where relevant, a lawyer familiar with the law of the investor’s home State. Where that expertise is not available within the core team, co-counsel or local law experts are often engaged to advise on questions of domestic law.

The division of labor between the team members evolves as the case progresses. At the outset of a case, partners typically play a leading role in developing the overall strategy and defining the theory of the case. They also work with the client to understand the commercial and political context of the dispute and to determine the broader objectives of the arbitration.

Associates are then responsible for helping to develop and execute that strategy. In the early stages, they typically take the lead in reviewing the factual record, conducting legal research, developing chronologies, organizing evidence, and preparing first drafts of submissions. Work among associates is often divided by major case themes, such as facts, jurisdiction, merits, and quantum. Associates also play a central role in managing exhibits and authorities and coordinating factual input from the client and experts.

As the case moves toward the hearing, partners focus on witness and expert preparation, oral advocacy, and engagement with the tribunal, while associates support these efforts through research, logistics, and hearing preparation.

What skills did you have to build quickly early in your career that no one told you about? 

Yaye: Project management is probably the most important one. Law school, especially in France, teaches legal reasoning, but it does not teach you how to coordinate multiple workstreams, deadlines, and stakeholders at the same time. The first few arbitration cases I worked on when I started as an associate involved hearings that lasted up to six consecutive weeks. Project management was key, and I was fortunate enough to learn from incredibly talented colleagues at the time.  

I also learned the importance of adaptability. In international arbitration, you are constantly exposed to new industries, technical concepts, and legal systems that are different from the ones in which you qualified as a lawyer (although they may be very similar). Being able to learn quickly and communicate complex issues clearly is just as important as legal knowledge itself. 

Elliot: Two skills spring to mind. The first is cultural sensitivity, in a legal sense (it goes without saying that cultural sensitivity in the broader sense is a prerequisite for a career in international arbitration). In my observation, lawyers generally tend to favor the legal system in which they trained. At its best, international arbitration transcends this and allows lawyers trained in common law, civil law, and other legal traditions to speak to one another. As a common law-trained attorney who has spent the last decade working in civil law jurisdictions from Colombia to the Republic of Congo, I've learned that seeking to understand and embracing different legal traditions makes you a better international arbitration practitioner.

The second is entrepreneurship. Early in my career, work seemed simply to appear, and I was too busy learning how to do my job to give much thought to the source of that work. Becoming more senior, I've come to understand that matters don't spring from thin air – they are the product of relationships with clients built over time, coupled with a keen understanding of the impact of the economy and global, regional, and local politics on clients' businesses. You need to be a trusted advisor before disputes arise, so that you are the person the client turns to when things go wrong. This takes time, so I've learned to foster relationships closely. 

Mailis: First, how to work effectively with evidence. As an associate, you are often responsible for reviewing hundreds, if not thousands, of documents and identifying the pieces of evidence that help or undermine your client’s case. No one in law school teaches you how important it is to develop a systematic and replicable approach to that process. Doing so is essential for finding the key documents, spotting patterns, and ultimately building a persuasive case theory.

Second, mastering the administrative and project-management side of a case. Legal training tends to focus on substantive law and advocacy, but the smooth running of a matter depends on many practical skills: preparing timelines and dramatis personae, coordinating work across the team, organizing exhibits, proofreading submissions, communicating with witnesses and experts, and managing the logistics of hearings. These tasks may seem secondary, but they enable the legal work itself to be done effectively.

What is your motto in life?

Yaye: I am not sure I can say I have a single motto in life, but there are a few principles that I try to live by: Always strive for the best, surround yourself with people who inspire you and take every opportunity you get to learn something new.

Elliot: I'm not one for mottos, but Ruth Bader Ginsberg once said, "fight for the things you care about, but do it in a way that will lead others to join you." I think that's as apt a recommendation for a career in international arbitration as it is for life. 

Mailis: “Action cures fear” has been my motto ever since my first job out of school as a door-to-door book salesman. That experience taught me that the hardest part of any intimidating situation is often simply getting started. The lesson has stayed with me throughout my career as a lawyer and in my personal life. Whenever I face uncertainty or fear, I remind myself to take the first step.