Arbitration requires specialization, and immersion in the subject matter of a dispute, so the fundamental characteristic of the relationship between an arbitrator and the parties is trust, says Marek Jeżewski, a recent guest of Konrad Czech, host of the Bulletin Vlog podcast of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw. What did topics they discuss?
A is for arbitration, T is for trust
Marek emphasized the fundamental asset of an Arbitrator is inspiring trust in involved parties and that client trust comes not only from an arbitrator’s soft skills, but also from their knowledge and understanding of the issues in dispute.
For this reason, Marek emphasized that from the beginning of his career he believed in the potential and importance of arbitration, although he was very well aware that the perceived consensual nature of arbitration was to some extent a myth. However, Marek admitted that in practice, it is precisely this method that is less antagonistic and more acceptable to disputing parties and still offers the real possibility of reaching a compromise via dialogue.
Marek is a highly experienced arbitrator, being both the author of the only Polish monograph on investment law and the Polish Ambassador to the Vienna International Arbitral Centre (VIAC). At the same time, he is an expert in the European legal market, and follows its trends and the challenges it presents for his profession, both in Poland and in the wider CEE region.
Marek pointed out that in international arbitration, where headquarters are often outside the CEE region, it is difficult for Polish practitioners, or even those from our region, to break through and compete with practitioners who have been in the market for many years in London, New York or Washington.
The perception of a less-developed arbitration culture in Poland compared to other European countries poses a challenge, and building trust whilst promoting arbitration as a reliable alternative to traditional litigation requires concerted efforts from legal practitioners, institutions, and policymakers.
However, recent changes in the perception of Arbitration are very positive, and best evidence of this is the very idea of VIAC ambassadors, which is a platform for organising practitioners and strengthening their position both as arbitrators and as attorneys.
Arbitrator or attorney? Or perhaps both?
When asked which role he sees himself in today and in the near future, Marek replied that one should not exist without the other, and that each has its own drawbacks, limitations, opportunities and advantages. However, the experience of being both an arbitrator and an attorney allows one to see things from both sides of the fence, to empathise with the dynamics of the arbitral process whilst understanding the frustrations of participants. In Marek’s case, these two professions merge into a single role.
Arbitration remains a way to resolve disputes quickly
Marek Jeżewski has been involved in investment arbitration for many years, both as a practitioner and as an academic. He stressed that for him, arbitration is a mechanism for foreign investors to seek redress against abuses of power in the state in which they invest. Some legal tools are necessary for this, in one form or another. They are a sine qua non of the concept of a democratic state of law.
Another challenge is the inconsistency in the enforcement of arbitral awards. While Poland is a signatory to the New York Convention, which facilitates the recognition and enforcement of arbitral awards, the practical application of these provisions can be unpredictable. Delays and challenges in enforcement procedures can deter parties from choosing arbitration as a dispute resolution mechanism.
But even with a pragmatic assessment of today’s reality, he stresses that he would not advise a client to commence an investment process without first establishing whether investment arbitration in intra-EU disputes is viewed with hostility by both the European Commission and the individual Member State where the investment is being considered. This is not to say, of course, that there are no legal tools and methods to ensure the effectiveness of such a process.