May 12, 2016

Q&A With Arnold & Porter's Dmitri Evseev

International Arbitration Law360

Law360, New York (May 12, 2016, 10:43 AM ET) -- Dmitri Evseev is a partner at Arnold & Porter LLP and focuses his practice on investor-state and commercial arbitration. In the field of investor-state arbitration he has represented over 10 different governments in treaty disputes and his current clients include the Czech Republic, Bulgaria and Costa Rica. He has also consulted governments on a diverse range of issues in public international law, including international humanitarian law, international environmental law, and telecommunications issues. In the field of commercial arbitration, Evseev acts as both counsel and arbitrator in matters before various international arbitration institutions including the LCIA, the ICC and the Stockholm Chamber of Commerce. Since 2015, Evseev has served on the board of the SCC. He is recognized as a leading practitioner in his field by Chambers Global and Legal 500 UK. Evseev is Russian-English bilingual and also speaks Spanish and French.

Q: What attracted you to international arbitration work?

A: In a word, the excitement. Traveling to different countries, meeting fascinating people, learning about different industries, piecing together a factual story like a detective, and building cutting-edge legal arguments — all these things are integral aspects of practicing international arbitration. It is also extremely liberating to work in a field not bound by legal precedent, and, in most cases, unburdened by extensive document discovery and aggressive motion practice that characterizes too much of U.S. litigation.

I did not study arbitration in law school and ended up working on my first arbitration matter essentially by accident. I was a junior associate practicing general litigation at one of D.C.'s largest law firms and one day I received a call from an arbitration partner who needed a Spanish speaker to interview witnesses for an arbitration matter in Colombia. Even though at that time my Spanish was a bit rusty (to put it mildly) I didn't hesitate in jumping on the opportunity – and haven't looked back since. Sometimes the work is glamorous – defending governments in treaty disputes, cross-examining CEOs and public officials, and traveling to exotic and dangerous locales (armored SUVs and bodyguards included). Other times you face situations so bizarre and Kafkaesque that you don't know whether to laugh, cry or bang your head against the nearest door frame. There are also the all-too-frequent fire drills, all-nighters and unwelcome surprises at the worst possible time. But in my 13 years of practicing international arbitration I cannot recall two days that have been exactly alike, and, at least for me, that's the greatest thing about this practice area.

Q: What are two trends you see that are affecting the practice of international arbitration?

A: (1) Greater publicity and transparency: In the field of investor-state arbitration the movement towards greater transparency of proceedings and greater opportunities for third-party participation has been gathering steam over the last decade. The perceived secrecy and unaccountability of investor-state tribunals, which hold hearings "behind closed doors" is one of the biggest criticisms of vocal public opposition to such proceedings. Critics point out that investment arbitration involves decisions on issues that are often of great public significance, and that the cases frequently result in massive liability covered by taxpayers.

The investment arbitration community has responded by adopting new rules and policies that should, over time, greatly increase the opportunity for public access to the proceedings. More recently, the international commercial arbitration community, including many of the leading arbitral institutions, have also adopted policies that would shed more light on the activities of tribunals and institutions in commercial cases. The parties to a dispute do not always welcome transparency and, indeed, often choose arbitration for the enhanced confidentiality it affords, so it remains to be seen how this tension will play itself out in different context. In the meantime, practitioners will need to adjust to the new risks and opportunities arising out of the move for greater transparency.

(2) The field is increasingly competitive: Competitors and clients are exerting a great deal of pressure on law firm fees and force law firms to diverge from the billable hour model. This forces law firms to be more efficient and work to reduce the price of their services. More and more work is awarded through tender procedures in which law firms compete on price, case strategy and experience. For many clients, price is often the deciding factor, leading law firms to accept engagements in which they bear a lot of financial risk (e.g., contingency arrangements and fee caps) or even result in a net financial loss, simply to gain a foothold in the market.

The competition, and, some would even say, commoditization of the arbitration market, has certainly made arbitration cheaper, but has probably reduced the overall level of quality. In fact, there is now a massive difference in the quality of service offered by different arbitration teams (and sometimes even by the same arbitration team depending on the budget allocated to the matter). Unfortunately the difference in quality is not always evident to clients or becomes evident only too late in the case. While it is perfectly rational in theory to offer "premium" level services to clients who are willing to pay for a no-stone-left-unturned approach and a "basic" level of services for clients who want to pay the absolute minimum, it is difficult to offer differing levels of service in practice. Still, I think arbitration clients in the future will have to make a choice between "lean" and "mean" when selecting their counsel.

Q: What is the most challenging case you've worked on and why?

A: The Electrabel v. Hungary ICSID arbitration in which my firm successfully represented Hungary was certainly one of the most challenging. The last lasted more than eight years, included several different claims, each of which could have been a major arbitration in its own right, and involved many novel issues about the relationship between public international law and European Union law. The case featured one of the first amicus curiae submissions by the European Commission and resulted in the first ever decision to recognize (as we argued on behalf of Hungary) that in an investment treaty-based dispute between an EU national (such as the Belgian company Electrabel) and an EU member state (such as Hungary), a tribunal must respect EU law, even if it is in conflict with the very investment treaty from which the tribunal derives its jurisdiction to hear such a dispute. At the time when we had to brief these issues in the Electrabel case there was virtually no precedent to draw from and very little scholarly commentary. To the extent commentary existed, much of it was dismissive of our thesis, so we had to build the argument ourselves, brick by brick. In the end, however, all of our hard work paid off and the tribunal ruled in our favor on virtually every contested issue in the case.

Q: What advice would you give to an attorney considering a career in international arbitration?

A: Hone your writing skills! The most important skill in arbitration is clear, concise and persuasive writing. Arbitration briefs, known as memorials, are much longer than litigation briefs and often present a very large number of factual and legal issues for the tribunal's decision. Arbitrators are always struggling to master complex fact patterns and determine which side's argument is more compelling, and your memorials need to convince three (or at least two out of three) arbitrators, who often come from different legal traditions, to rule in your client's favor.

Associates who can write very well are always prized in any arbitration practice and are likely to be the most successful in their careers over time. At the same time, good writing skills are difficult to acquire after you begin your arbitration career, so it is essential to seek out experiences and course work that will help improve your writing before you try to land your first job in an international arbitration practice. In my experience, the best way to improve your writing is to help edit other people's writing (e.g. by working on a law journal) and by finding a mentor who will take the time to give you extremely detailed feedback on your own drafting.

Q: Outside of your firm, name an attorney who has impressed you and tell us why.

A: V.V. ("Johnny") Veeder – he is one of the world's most respected independent arbitrators and has always impressed me with how thoughtfully and methodically he approaches every issue and how he makes the disputing parties feel that they always have a genuine opportunity to be heard on every important point. It is clear that he cares deeply about the fairness of arbitration procedure in cases in which he is involved, but also actively seeks to reform and improve the practice of arbitration generally. For instance, he was one of the leading forces for the latest revision of the London Court of International Arbitration Rules, which are innovative in containing their own set of ethical guidelines for counsel. Far from resting on his laurels like some other eminent practitioners, he is always diligent and hardworking, and never comes off as condescending (despite his British accent).

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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