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The Impact Lawyers has the pleasure to publish an interview made to Oriol Valentí Vidal and Miguel Pereira Da Silva

Oriol is a Principal Associate at Cuatrecasas, he is a specialist in domestic and international arbitration. Miguel is also Principal Associate at Cuatrecasas and he specializes in judicial and extra-judicial conflict resolution and has been involved in civil and commercial litigation, specifically, national and international arbitration and mediation. Both Oriol and Miguel have recently been selected to join the coordination group of CEA-40 (Spanish Arbitration Club).

Oriol: I think it is still too early to have reliable data on the matter, but my impression—shared by colleagues at Cuatrecasas and other experts in the field—is that the pandemic will undoubtedly mark a shift in the way we resolve commercial disputes.

In Spain, for example, the approval of Royal Decree 463/2020, of March 14, declaring the state of emergency due to the COVID-19 crisis, suspended the procedural deadlines and docketing of cases of all judicial proceedings except those that were considered essential. This meant that until the suspension of procedural deadlines was lifted on June 4, 2020, commercial proceedings were completely paralyzed, resulting in economic loss for the parties involved. In addition to this, there is an endemic delay in the processing of civil cases (in 2019, the average duration of ordinary first-instance proceedings was 17 months). This delay is, in part, the result of a combination of having one of the lowest ratios of judges to population in the EU and a high rate of litigation (in 2018, an average of 1,133.8 new cases were submitted to each judge).

Faced with this extreme situation, companies of all sizes and from different economic sectors have increasingly opted to initiate arbitration and mediation proceedings to resolve their disputes. This has certainly been helped by the fact that these alternative means of dispute resolution were not paralyzed over the last few months, thanks to their flexibility and the evident effort of arbitral institutions to promote these proceedings and adapt to the changing circumstances. Good examples of this are the fast-track arbitration proceedings, or by mutual agreement, of conflicts due to COVID-19 created by the Arbitration Board of Barcelona (the “TAB”) and the strong support of online hearings by the Madrid Court of Arbitration (the “CAM”).

Miguel: Although we have been representing clients in arbitrations which would have not been started if it were not for the pandemic, I still do not have enough data to know whether the pandemic will generate a systemic increase in the number of arbitrations. Experience tells us that crisis usually lead to an increase in the number of arbitrations and, although I do not think that this crisis will be different, only time will tell. 

Notwithstanding, it is already obvious that the pandemic has disrupted a large number of ongoing contractual relationships and generated a significant number of disputes that companies have been trying to resolve amicably, and although a lot of companies have been successful in resolving a lot of those disputes without having to resort to an adjudicator, it is reasonable to expect that some of those disputes will eventually have to be resolved by arbitration or other means of dispute resolution. 

Moreover, the pandemic has emerged during what has been a period of economic growth, where a significant number of contracts and investments have been made and were still being made. A lot of those contract are likely to have arbitration clauses, so as the number of transactions that are disrupted increases, so is the number of arbitrations likely to increase.

Oriol: Regarding Spanish arbitral institutions, which is the part that I know best, the answer is a resounding “yes.” The TAB, the CAM, and the Spanish Civil and Commercial Arbitration Court (“CIMA”), among others, have adapted very quickly to the new health situation and allow procedural and evidentiary hearings to be held online. Like other leading international arbitration institutions, most Spanish arbitration courts have adopted protocols that include several recommendations for an optimal experience—and with all the guarantees—in the online environment.

I personally had an excellent experience with the CAM in May and June of 2020. While legal proceedings continued to be suspended throughout the country, I participated in two international arbitrations in which the CAM provided everything we needed to successfully hold two evidentiary hearings by Zoom, including nine remote connections, witnesses and experts being heard in different places and in different languages, strong security and confidentiality measures, and testing of the applied technology.

Miguel: In Portugal, like what we have seen in the majority of the most important arbitral institutions, such as, for instance, the ICC and the LCIA, the main arbitral institution, Centro de Arbitragem Comercial da Câmara de Comércio e Indústria Portuguesa, was quick to adapt. 

The pandemic pretty much forced everyone to switch to a virtual setting almost overnight and, albeit virtual proceedings have some logistical challenges that are burdensome for the parties and counsel, as quite a bit of service hiring and testing is involved, especially for the hearings, my experience is that the move to a fully virtual setting has been successful and arbitral institutions, especially those that have published guidelines and recommendations for such a purpose, played an important role in making everyone’s life easier. 

I also think that it will be interesting to see what will happen once the pandemic ends and virtual proceedings are no longer a necessity but a real choice of the parties.

Oriol: A good arbitrator must be analytical and able to understand the legal and factual complexities of the cases being judged. They must also be intuitive and have emotional intelligence to unravel the material truth of a dispute, a particularly important skill during examination in evidentiary hearings. I would add that good arbitrators must have the time available that each case requires; as well as being enthusiastic, hardworking, and not afraid to roll up their sleeves when circumstances require; and, most importantly, their reputation and professional ethics must be impeccable.

I also believe that great arbitrators make good that saying of “an iron fist in a velvet glove”; in other words, they understand that the parties involved are in control of the arbitration proceeding and therefore accept any reasonable agreement they reach on the matter, but at the same time they know how to impose their criteria when necessary. This will obviously require studying the case as much as the representatives of the parties involved and treating all the intervening parties with respect and deference.

Miguel: It is often said that the arbitration is only as good as the arbitrator. It may sound as a bit of a cliché, but because it is also true, the standard for a good arbitrator must be set very high. 

First and foremost, a good arbitrator needs to be able to instill confidence in the parties that he/she will be independent, impartial and above all, ethically irreproachable.  

Additionally, from a technical point of view, a good arbitrator must, not only be experienced and educated in matters of arbitration, as to easily handle the more mundane aspects of the arbitration in an efficient and effective manner, but must also be skilled enough to avoid and, if necessary, handle difficult situations that may arise, especially those that may threaten the integrity of the arbitral process. 

Another characteristic that I value in an arbitrator is the ability to not leave the parties in the dark regarding what matters of fact and law he/she considers need to be addressed by the parties. It could be argued that knowing that is the job of the lawyers, but it really makes a difference when the arbitrators tell you exactly what points they want you to focus on.    

Also, I think that it is paramount that arbitrators are humble and hardworking, in the sense that they should always be mindful that even if a certain dispute will certainly not make the headlines or be a career milestone, more often than not, the matters at stake are critical for the parties involved and it is also a service that is very well paid for by its users.

Oriol: The truth is I am delighted and humbled. I am looking forward to being able to represent and work for such a heterogeneous and dynamic young group as the CEA-40. This position carries an important responsibility: maintaining the CEA-40 as a reference group in the international arbitration community is the work of all of us together, but especially that of the coordinators. That is why, as a coordinator, I want to seize every opportunity in these challenging times.

On the other hand, being part of the CEA-40 coordination group for the 2021-2022 biennium also means becoming the heir to a tradition, a legacy, or a way of doing things of previous coordination groups. So I think that the challenge is to preserve the excellent work of former coordinators while doing our part; this way we become a link in the long chain of people who have worked to make the CEA-40 a meeting point for young people who practice arbitration in Spanish, Portuguese or with an Ibero-American component.

Miguel: I am very happy to be part of such a talented group and, to be perfectly honest, I am humbled to have this opportunity. I have always regarded the CEA-40 as one of the most, if not the most important young arbitration practitioner’s organization in the Iberian and perhaps Latin American context, so to assume this role really makes me feel that responsibility. I am, of course, also very happy to be following the footsteps of other lawyers who have previously had the same role and to whom I really look up to. 

Back in 2016 I have lived and worked in Madrid and, at that time, the CEA-40 played an important role in my career in the sense that it allowed me to meet and learn from people who I admire and some of which have become my friends, so now it is time to try and give back a little bit to a community that has always made me feel very welcome.

Oriol: More than important, I would say that it is essential that organizations such as the CEA-40 exist in the legal sector, and for the sake of argument, in any professional activity. Without the club or other similar forums, we young lawyers practicing arbitration and mediation in Ibero-America would be missing a meeting point where we can share our experiences and concerns, learn from one another and from our elders and in short, support one another in our career development.

The needs of the under-forty lawyers in areas such as training and networking are different to those of more experienced lawyers. Thus, an organization such as the CEA-40, created by and for young lawyers, can offer specific solutions for this sector. Not to mention the fact that we under-forties can approach old problems in a fresh, more diverse way, which is why forums like this can channel these concerns, proposals, and needs.

Miguel: A lot of the focus of organizations such as the CEA-40 goes into connecting people and allowing them to learn from each other. In that sense, they are important not only for younger practitioners as individuals, but also, in a broader context, for the legal sector as they allow for the dissemination of ideas which also leads to innovation and for a more educated and stronger community.