Young ICSID Profiles - Part Four
Young ICSID is pleased to present the first edition in Spanish of a series of interviews with three young professionals in the field of international investment law and dispute settlement. As with the interview series in English, this edition examines practical issues related to professional development and skills acquisition from the perspective of young professionals from around the world, this time from the Latin American region. This English version of the interviews has been translated from the Spanish originals.
We had the pleasure of interviewing Mélanie Riofrio, General Secretary of the International Arbitration Center of Madrid (CIAM); Ofilio Mayorga, International Associate in the International Litigation and Arbitration practice at Foley Hoag LLP; and Jean-Paul Dechamps, specialist in international arbitration and founding partner of the firm Dechamps International Law.
How did you become interested in arbitration and international law?
Mélanie: I come from an Ecuadorian-Canadian family and attended a French high school. Bringing diverging interests together and building bridges of understanding between different cultures was a skill that I had to develop from an early age. At the beginning of my career, I knew that I wanted to dedicate myself to international relations and contribute to the peaceful resolution of disputes, without resorting to force. This is what sparked my interest in international law and arbitration.
Ofilio: My interest arose after participating in the international rounds of the Philip C. Jessup International Law Moot Court Competition in Washington D.C. in 2005. This experience marked a before and after in my career. From that moment on, I knew what kind of lawyer I wanted to be and what kind of lawyers I wanted to work with. Everything I did after my participation in that competition was geared towards achieving my goal of becoming an international lawyer. Initially, I associated this goal with public international law. I wanted to litigate before the International Court of Justice or prosecute war criminals before UN tribunals. As I learned more about the universe of international law, I came across the fascinating world of investment arbitration. A very dynamic world, even more dynamic than the public international law world, because of its relative youth. It is still a very fertile field to explore and create new things. Investment arbitration is also dynamic because it feeds on both public international law and private law. These two fields converge in investment arbitration, creating something unique.
Jean-Paul: I started my career in Argentina in 2001, working in the litigation department of a multi-service firm. I transitioned to arbitration when I moved to London in 2005 after doing an internship at an international firm. I was quickly attracted to the possibility of working on legally complex matters, involving multiple jurisdictions and legal systems, and in which I could apply my knowledge of languages. From there, I decided to specialize in this area and did postgraduate studies in London and the United States. It was important for my development to have been fortunate to work and learn alongside some of the most prestigious figures in the world of arbitration and international law.
What has been a key lesson you've learned in your career? Given that lesson learned, is there anything you would have done differently in your education or at the beginning of your career?
Mélanie: Good arbitrators resolve disputes with fairness and reasonableness. Exceptional arbitrators know how to translate that fairness and reasonableness into figures. In addition to determining the liability of the parties and making wise decisions, the arbitrator must understand the reports of economic experts and know how to quantify the damage caused. I learned about investment valuation early in my career acting as a tribunal secretary in ICSID arbitrations. If I had known the importance of this issue from the beginning, I would have supplemented my education with a specialization in finance.
Ofilio: The most important lesson I've learned since I started in arbitration is that you don't have to feel embarrassed to ask for help. In my early years, I felt compelled to try to figure everything out on my own. That is a mistake. I remember that, on one occasion, I was convinced that I had made a mistake in a footnote, and I spent two whole weeks, very badly, thinking and rethinking how to explain or minimize it in the next round. It was a situation that totally consumed me. After those two weeks, I said: "I can't take it anymore. I can't think of anything." And I explained the situation to the partner in charge of the case. He solved the issue in a minute, because from his point of view there was no mistake. If I had gone to my supervisor from the beginning, I would have avoided two weeks of anxiety. Always, especially in this profession, we must rely on our colleagues and supervisors. It is very healthy and normal.
Jean-Paul: That you have to be patient and be consistent. Results do not come from one day to the next, and they are not achieved without a high dose of effort and discipline. But you also have to know how to take advantage of opportunities when they arise, and that means taking risks. If I started my career over again, maybe I would aim to take more risks and look for more opportunities that force me out of my comfort zone.
What do you think is the most relevant change or development for investment arbitration in recent years?
Mélanie: Transparency has become an increasingly valued component of investment arbitration given its public interest. In recent years this transparency has been reflected in a variety of sources such as the United Nations Commission on International Trade Law (UNCITRAL) rules on transparency, the ICSID arbitration rules, as well as some bilateral investment treaties. It is very likely that investment arbitration will benefit from the practical advantages of standardizing transparency rules and ultimately from an increase in the confidence in the system.
Ofilio: Transparency. In its beginnings, opacity and secrecy were the norm in this field of law. For example, in 2016, a Time Magazine correspondent published a book titled "Shadow Courts: The Tribunals that Rule Global Trade." The author describes investment arbitral tribunals as courts operating in the shadows, even though their decisions affect States. The perception of opacity has exposed the system to severe criticism and to a legitimacy crisis in the eyes of the public. But in the last decade we have witnessed a huge effort to change this and open the system up to the public and other actors. On balance, this has been very positive. It has contributed to the diversification of arbitrators involved in arbitration. Having more public awards also has enormous educational value. There are other benefits, but ultimately, transparency helps cement the legitimacy of arbitration. As users and actors of the investment arbitration system, we have an obligation to take care of it and improve it. Transparency is one way to do this.
Jean-Paul: I believe that the various reform processes of the investment arbitration system that have taken place in recent years have contributed to its acceptance and legitimization as a method of resolving disputes between States and investors. This has included, for example, reforms to the institutions' regulations (including, of course, ICSID) that have incorporated, among many other issues, regulations on transparency and cost management. Also important have been the processes of modernizing investment treaties that many States have embarked on, and which have included the regulation of important issues such as sustainable development, responsible business conduct and environmental protection. Another initiative to be highlighted is Working Groups II and III of the United Nations Commission on International Trade Law (UNCITRAL), including the joint work with ICSID to develop the Code of Conduct for Adjudicators. All this generates greater confidence in the system and is positive for its long-term development, without losing sight of the importance of reflecting with a broad vision the interests of all the parties that participate in the system.
If we focus on Latin America and the Caribbean, do you see any relevant changes in the future for investment arbitration, perhaps from the impact of the COVID-19 pandemic?
Mélanie: There are two changes that seem to me to be the most relevant for investment arbitration in the wake of the pandemic. The first is greater efficiency of the procedure through the use of technology. Although technology has never been alien to the arbitration community, its use has increased exponentially with the pandemic, specifically with regard to teleworking, the holding of videoconferences and virtual hearings, and zero-paper practices, such as the use of digital formats for writings, notifications, and even the document discovery phase. The second is of a substantive nature. In the wake of the pandemic, Latin American States have taken a number of measures to deal with the health crisis, which may be the cause of future investor claims. Faced with this type of claim, States have wielded a series of defenses of international law, such as those related to police powers, force majeure or state of necessity. The result will probably be a development of the standards and requirements to invoke these defenses, whose concrete manifestation we will only be able to appreciate in the coming years and as cases progress.
Ofilio: There is no doubt that the number of cases against countries from Latin America and the Caribbean will increase in the short term. Latin America has traditionally been the region with the most investment arbitration cases. But I am concerned about a possible collapse of domestic justice systems because of the pandemic, because this could lead to conflicts or disputes over denial of justice that, in a normal situation, could perhaps have been avoided. Another aspect that distinguishes the pandemic from other emergencies that the region has experienced in the past is that it is affecting all countries equally. For investment arbitration, this opens the possibility of harmonizing or unifying the criteria for the application of defenses that allow the exclusion of international liability, such as force majeure, state of necessity, or even on the scope or limits of the regulatory powers of States. If that unification process happens, we'll see it in 5 or 10 years.
Jean-Paul: I think that arbitration, and in particular investment arbitration, will accentuate its growth in the coming years as an area of special interest among young lawyers in the region. Latin America has been the region that has seen the most activity in investment arbitrations over the course of the last two decades, and this (among other reasons) has brought many young lawyers closer to this area of practice. In recent years we have seen the emergence of specialized firms in the region and also a growing specialization of the legal teams of the States, which have been professionalizing their structures in this area. On the other hand, international firms have a growing interest for Latin American practitioners, given their academic training, knowledge of languages and early work experience that many students acquire in the last years of their studies.
What do you think are two indispensable skills for young people who aspire to practice in investment arbitration?
Mélanie: The first is the development of good business sense. Those who engage in investment arbitration need to be able to understand business and how it works. The second is the mastery of the art of research. It is one thing to have good arguments and a solid legal basis and another, very different thing, is to know how to convey it persuasively. To be convincing, oral or written argumentation must be very structured, have a consistent narrative, and have surgical precision in the use of language.
Ofilio: The most important skill, and most difficult to master, is writing well. For a lawyer that means clarity, conciseness and precision. In the culture from which I come (Nicaragua/Central America) a very flowery or sophisticated way of writing is greatly rewarded. If you don't write like the poet Rubén Darío, you're not worth it. But I think that's changing. Given the complexity of international arbitration, in our practice we should aspire to be brief and clear in our writing. This is not easy. I have heard lawyers with a lot of experience say that day-by-day, they continue to perfect their style and technique. It's a process that never ends. The second skill that I consider fundamental is knowing how to listen. This is key especially in hearings, and especially in cross-examinations of witnesses or experts. One makes a plan, but if you don't have the ability to listen well, you can make the mistake of following it automatically without adapting it. And so you may miss the opportunity to address other key points that you did not expect.
Jean-Paul: The practice of arbitration requires a solid academic background and, given the constant state of development of investment law, keeping abreast of developments in case law and substantive issues. On the other hand, the study and regular practice of legal English as a second language is essential. As part of this, I think it is useful to incorporate early the Anglo-Saxon narrative style, based mainly on a simple and concise wording, which predominates in the field of international arbitration.
What is your life motto?
Mélanie: In general I am very stoic in my way of thinking. In particular, I really like the following motto that is attributed to this school of thought: "You have power over your mind – not outside events. Realize this, and you will find strength."
Ofilio: A phrase from Seneca: "There is no one less fortunate than the man whom adversity forgets, for he has no opportunity to test himself." It is precisely for this reason that I am very attracted to international law and arbitration in general: every day is a new challenge.
Jean-Paul: I choose a line taken from Rudyard Kipling's poem "If," written in 1895 and dedicated to his son: "If you can meet with Triumph and Disaster, and treat those two impostors just the same." It is a healthy reminder that neither successes nor defeats qualify us as individuals and that we must go through life with gratitude and humility.