#10QuestionswithMaxwell Interview Series: Bernard Hanotiau, Hanotiau & van den Berg
Mr Hanotiau is a member of the Brussels and Paris Bars, since 1976 and 1989 respectively. In 2001, he established a boutique law firm in Brussels concentrating on international arbitration and litigation. The firm has offices in Brussels and Singapore.
Since 1978, Mr Hanotiau has been actively involved in international commercial arbitration as party-appointed arbitrator, chairman, sole arbitrator, counsel and expert in various parts of the world.
He is the author of Complex Arbitrations: Multi-party, Multi-contract & Multi-issue, Kluwer, The Hague, 2006, second edition 2020 and of more than 120 articles, most of them relating to international commercial law and arbitration.
In this interview, Bernard shared his most memorable experience as an arbitrator, one thing he would change about the arbitral system, his teaching philosophy, and more.
Read his full interview below:
Q: What has been your most memorable experience as an arbitrator?
A: Having been involved in more than 500 arbitrations since 1978, I have a lot of memories. One of my greatest experiences was my chairmanship of an arbitration in Stockholm, of eight connected arbitrations between various subsidiaries of a French food group and various companies of their partner in the People’s Republic of China. The parties were represented by fifty lawyers at the hearings. We had six weeks of hearing and we issued eight awards totalling 3500 pages. The parties settled immediately after the issuance of the awards. The case – referred to as the Wahaha Arbitration – is very famous in the PRC.
Q: What qualities and skills make of a good arbitrator?
A: A good arbitrator should not only be a good lawyer, but also have good common sense, and a good business approach when needed. He/she should always treat the parties fairly and on an equal footing, listen to them carefully, and whatever the complexity of the issues with which he/she is confronted, he/she should be able to make a quick decision.
Q: What has been your greatest achievement to date?
A: I would say in the first place to have created the first arbitration boutique with Albert Jan van den Berg, which has been a great success and continues to be so. And in the second place, I am proud to have been able to totally master the topic of multi-party/multi-contract arbitrations and to publish a treatise on this topic, the second edition having been issued in September 2020.
Q: If you could change one thing about the arbitral system, what would it be?
A: I would like to convince counsel to file more concise and focused submissions, and to be more reasonable in their requests for document production. That would be to their advantage, since it would facilitate the work of the arbitrators and would make the process more efficient and less expensive.
Q: Virtual and hybrid hearings are becoming the new norm. Could you share 1 key challenge and opportunity from this change?
A: Virtual hearings have advantages and disadvantages. From the arbitral tribunal’s point of view, one key challenge is the difficulty of communications between the members of the panel, especially with respect to deliberations in very complex cases. In terms of opportunities, we have all realised that it was not necessary to travel long hours only to attend a two-hour case management conference, or a short hearing on preliminary measures or even on jurisdiction when there are no witnesses or experts. These can be done by video.
Q: You are a Visiting Professor at National University of Singapore (NUS) and Professor Emeritus of the Law School of Louvain University (Belgium). Share with us your teaching philosophy.
A: You can read the theory in books and treatises, but not the practice. Of course, it is important to explain the theory to students but one of your main contributions as a practitioner when you teach, is your experience of your application of the law in the real world. I know that this is what my students have always enjoyed in particular, when I was teaching a course on international arbitration or international commercial transactions.
Q: How might younger arbitration practitioners best position themselves in the current market?
A: This is a frequently asked question. First, I consider that as senior practitioners, we have a duty to help young lawyers to position themselves in the market and do whatever we can in that respect. I also tell young lawyers that they should be present as much as they can in arbitration conferences and seminars and in the young arbitration practitioners events, in particular, as speakers or organisers. I also advise them to write articles, preferably on issues of substance rather than procedure, and to progressively create a network with lawyers of their generation. The latter are not competitors. They are the lawyers who are going to refer arbitration work to them or nominate them as arbitrators.
Q: What do you miss about Singapore? What’s your favourite Singapore food?
A: You cannot imagine how much I miss Singapore in all respects. I hope that their borders will open soon (without quarantine). I love the food in Singapore, whether Singaporean, Thai, Indian, Chinese or French. They have plenty of great restaurants. And it is also paradise for wine lovers.
Q: Share with us your fondest memories of Maxwell Chambers / Maxwell Chambers Suites.
A: I was present for the grand opening of both Maxwell Chambers (2010) and Maxwell Chambers Suites (2019). It was a great moment. Hanotiau & van den Berg was the first civil law firm to open an office at Maxwell Chambers. And I had a great number of important hearings there. It is a very convivial place, attended by personnel who are so friendly and helpful. It is a unique place which unfortunately, I have not been able to visit since March 2020 because of the pandemia. I terribly miss it.
Q: Maxwell Chambers is honoured to have the opportunity to invite you on our upcoming Maxwell Lectures. Could you share with us a little about the topic you will be speaking on? What is one key takeaway you would like the attendees to take home from the session?
A: I will revisit the issue of res judicata, which is one of the most difficult topics of international arbitration. The issues it raises do not receive a uniform solution in all jurisdictions. Nowadays, the approach to res judicata is evolving from a rigid one to a more flexible approach. One issue that I will consider, in particular, is the issue of concentration of claims, and whether res judicata can be invoked when claims are raised in a second arbitration when they could have been raised in a previous one in which an award had already been issued. One of the great qualities of a good lawyer is to suggest improvements to the rule of law each time he/she considers that such improvements are necessary. And this is the case for res judicata.
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