The CPR European Advisory Board (EAB) continues its series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A with Piotr Nowaczyk.
Piotr is based in Warsaw. In addition to being a CPR Distinguished Neutral, he is a chartered arbitrator, advocate, the former president of the Court of Arbitration at the Polish Chamber of Commerce, a former member of the ICC International Court of Arbitration and a member of the VIAC Advisory Board. https://whoswholegal.com/piotr-nowaczyk
How did you get your start as a neutral?
In 1998 I was included on the roster of VIAC arbitrators and at around the same time I was appointed by the Court of Arbitration at the Polish Chamber of Commerce and recommended by the ICC Polish National Committee. I believe my background as an ex-judge, advocate admitted in Poznan, Paris and Warsaw, partner at Salans (legacy firm of Dentons) and polyglot with an international background was helpful and has led to over 350 arbitration appointments in the last 20 years.
Who is your dispute resolution hero/heroine?
Pierre Karrer, Robert Briner and Eric Schwartz.
Starting with the youngest (Eric Schwartz): In 1991 I came to Paris, having been invited as a visiting lawyer by the Law Offices of S.G. Archibald. Eric Schwartz was leading the arbitration practice there, together with Sarah François-Poncet. He was an arbitrator in the dispute over the Egyptian Assuan Dam. For me, a newcomer from Poland, it was my first introduction to a large-scale arbitration. Later, our paths crossed many times. Eric became Secretary General of the ICC Court of International Arbitration. He wrote, together with Yves Derains, a Commentary on the ICC Rules of Arbitration. About 12 years later I became a member of the ICC Court. Eric became a partner at Salans Herzfeld & Heilbronn, where I was also a partner. I organized his meetings and lectures in Warsaw. To this day, I admire his calmness and composure. He always speaks quietly and calmly about the most difficult matters.
Pierre Karrer was my favorite colleague among the members of the ICC Arbitration Court. We usually sat side by side around the oval table at the court’s monthly plenary sessions. I admired his comments on draft awards. They were always light, accurate, often witty, and at the same time positive, even if critical. We served as arbitrators on a few occasions and he gave me some practical advice. For example, he advised me to separate the parties’ submissions. He put the claimant’s submissions into the green file (“because, as at the pedestrian crossing, the claimant always wants to go forward”), and the respondent’s submissions into the red file (“because the respondent usually tries to stop the proceedings”). The papers produced by the arbitral tribunal and the arbitral institution he assembled in a yellow binder. In his house, he showed me specially designed shelves on wheels. Each of them contained binders of documents regarding a particular case. He moved them easily across the floor. The files were bound in soft binders (“because they don’t damage the inside of the traveling suitcase”). He gave me a lot of good advice. He said, “Piotr, if I have one dollar and I give it to you, it will be your dollar, not mine anymore. However, if I give you an idea or give you a thought, it will be mine and your thought, mine and your idea”. He shared countless ideas and thoughts with me. His famous multilingual Glossary of Arbitration and ADR was developed and expanded in Warsaw to include arbitration terminology in Czech, Polish and Russian. It was my idea, his idea, our idea, my thought, his thought, or our common thought.
Robert Briner was the President of the ICC Court when I became a court member for Poland. He was one of the giants of international arbitration, a man of slightly old-fashioned ways, a gentleman always holding fast to his principles. His three full terms of office making nine full years as president of the world’s biggest court of arbitration had left an indelible stamp on this institution. He was an elegant, distinguished man, sparing in word and gesture. He was ready to advise anyone who asked for his advice, in the simplest way possible, discreetly and briefly, sometimes in one sentence. When the Polish National Committee put forward my candidacy for the ICC Court membership, I asked Robert Briner what he thought of it. He looked me in the eye and asked: “Why hesitate?” It’s difficult to forget that conversation which took place many years ago in a very unusual setting. We were both watching a pair of koalas in an Australian eucalyptus wood during a break at the annual congress of the Union Internationale des Avocats.
What is the one piece of advice you would want to give to the younger generation looking for a first appointment as neutral?
It is not easy to start out as an arbitrator.
Arbitrators are late starters. At first, you have to establish yourself as a barrister, solicitor, judge, academic, diplomat, businessman, politician or expert. So, it is only later in life that you would typically become an arbitrator. Young legal eagles tend to champ at the bit, eager to get their first case. A rude awaking often comes at the first interview when they have to field these brutal questions: “How often have you acted as arbitrator?” “How many awards have you made?” “What is your experience with arbitration?”
The young hopefuls are stumped for an answer. Imagine a patient asking a budding orthopedic surgeon eager to perform his first knee operation: “How many knee operations have you conducted, doctor?” If the flustered doctor says, “Not even one, but I’d love to make a start,” the patient will go to see a real specialist, preferably one with more than 100 knee operations to his name.
There is no clear recommendation on how to get the first appointment. David Rockefeller published the book “How to make a million dollars”. In the preface he stated: “from this book you will learn how to make the second, the third or the fourth million…”. I would rather not mention his advice on how to get the first million! Young people are often attracted to arbitration because it offers the opportunity to publish articles, go to conferences and take part in the Vis Moot. Many of the famous arbitral institutions sell modular training courses scaling up from introductory to advanced, from domestic to international and so on. I would caution aspiring young arbitrators, completion of such courses does not necessarily mean that appointments will automatically follow. Young lawyers can include an arbitration clause in every contract drafted and act as a counsel or administrative secretary. One day, someone will offer an appointment as an arbitrator. Currently, we have more participants in arbitration conferences than there are arbitration cases on this continent. Telling young people “under 40” that they are well prepared and will replace us all one day is only partly true. Parties still prefer experienced arbitrators who have earned their reputation with years of impeccable professional activity. The patient prefers an experienced surgeon, not a young one, who is eager for the first surgery in his life.
Were you ever the first in doing something?
Yes, I was the first Polish advocate admitted to the Paris Bar back in 1993.
What makes your conflict resolution style unique?
I would like to think it is my intuition.
What has been the most difficult challenge you have faced as a neutral?
Initiating disciplinary proceedings against three young counsels who were intent on seizing my personal bank account to cover their fees in case they lost the arbitration case.
The counsel were defending the family business of one of them. I was an arbitrator nominated by the claimant. From the beginning, the counsel treated me as their number one enemy. They also tried to seize the chairman’s bank account. We learned about their activities in the middle of the proceedings. At the hearing, we informed the claimant because we were concerned that doubts may be raised as to our impartiality and independence. We completed the arbitration and passed a fair award, mostly in favor of these rogues. We initiated disciplinary proceedings immediately after the award was delivered. It lasted 5 years and resulted in discontinuation due to the statute of limitations. The young counsel made friends with the dean of the local bar council. They became his friends and helpers, to the point of becoming members of the local bar council. They became almost untouchable. Time went by, and the bar members, including the dean, acting as disciplinary prosecutors dragged out the proceedings to such an extent that the claim ultimately became time barred.
What is the most important mistake you see counsel make?
Typically, they file too many documents and charge too many billable hours!
Now let’s turn to some specific topics:
- What is your view on the duration of arbitration proceedings?
Arbitration is like a pregnancy. It should not be aborted or last longer than 9 months. Every dispute can be managed within 9 months. It all depends on the energy, proactivity, devotion and dedication of the arbitral tribunal. One of our roles is to combat delays provoked by counsel. Unfortunately, counsel want to have as much time (billable) as possible and produce endlessly long submissions. Counsel for the conflicting parties are able to agree on a highly extended provisional timetable, and then want to impose it on the arbitral tribunal. Weak arbitrators spread their hands and say: “It is the parties who are the hosts of the dispute. We have to accept their joint proposal”. I ask the co-arbitrators then: “If they are the hosts, then who the hell are we, the arbitrators? Guests?”
2. With respect to the taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?
Prague Rules are much simpler and tailor made for Eastern and Central Europe.
What do you see as the next “big thing” in global dispute prevention and resolution?
The big problem is arbitrators’ safety. It is time to think about arbitrators’ immunity and an international convention to grant it.
For which types of conflicts would you recommend ADR?
I think you can use ADR for all types of conflicts, with very few local exceptions.