Bloomsbury Professional catch up with barrister and author, Paul Fisher.
1. What first attracted you to Arbitration?
International arbitration was particularly attractive to me as it lent itself to professional creativity: although the institutions have their rules (as do ad hoc arbitrations) the world of international arbitration is unburdened by the procedural constraints of the Civil Procedure Rules than are the English courts. That lends itself to flexibility and party autonomy of the kind that simply cannot be achieved within any domestic court setting. There are disadvantages that result (and I deal with this below) but I am generally attracted to a process that grants an opportunity to each party to present their case as they see fit within certain broadly-defined parameters. It remains one of the most attractive features of international arbitration.
2. What do you think has been the biggest development in Arbitration in recent years?
Costs. Without a doubt there are three benefits that have long been lauded by advocates of international arbitration and that are intended to govern the process (‘the troika’): confidentiality, autonomy of party decision-making and cost. The last of these three benefits has steadily given way to costs that can easily rival those expended during the process of litigation.
Indeed, it is arguably worse in international arbitration where the prospect of costs control among the key arbitral institutions are far less stringent than the post-Jackson reform English courts.
The very same flexibility that arbitration affords to the parties to pursue evidence and present their cases can become a curse. However, this is the price one pays for a process that retains at least two of the benefits of the ‘troika’ I mention above.
3. What is the biggest misconception about your job?
The biggest misconception about international arbitration is that it is in some sense rooted in intricate legal argument.
The art of the arbitration lawyer is no more distinctive than that of the domestic lawyer. The job can be summarised in key principles:
- Cases are decided more often than not by facts rather than law;
- Far better to view arbitration as a process of dialogue with both witnesses and the tribunal; and
- If you can use up less of the tribunal’s time and require of them as little reading as possible then that is almost always the best route to choose. Reams of expert, fact evidence and submissions can be a curse as well as a blessing.
4. Do you think Brexit will have an impact on International Arbitration?
Although the ramifications of Brexit are potentially quite large, the impact of the United Kingdom’s decision to leave the European Union on international arbitration will be negligible, in my opinion.
Brexit is an objectively bad idea for the United Kingdom. It will have a deep and lasting impact upon the British economy and its ‘brand’, but any impact upon private arbitral disputes will be the least acute of all.
The consequence of Brexit that no-one wants to speak about, however, is the eventuating trade agreement which the United Kingdom still intends to strike with the European Union at some point in the distant future. What may be of interest to international arbitration lawyers (especially investment treaty arbitration lawyers) is the dispute resolution mechanism that the parties will adopt as part of that trade agreement. This is definitely one space to watch keenly in the coming years.
At present, it isn’t even on the Cabinet’s radar as it scrambles to find out whether it can even secure a Withdrawal Agreement!