Alina Matei: Thank you, ladies, for having accepted to give an interview for JURIDICE.ro readers, occasioned by the organization of the ICC Conference Construction disputes: ICC tools and recent experience in Arbitration & ADR in Bucharest on 21 March 2019. Mrs. Laetitia de Montalivet, this is your second time in Romania. Romanian lawyers have been able to find out more about you on the occasion of an interview you gave to my colleague, lawyer, PhD, Cosmin Vasile, arbitrator, ZRP partner (insert link to the interview). How come you decided to organize such a conference in Bucharest (Romania) and why have you chosen this topic?
Laetitia de Montalivet: Thank you, Ms Matei, for having organized this interview. Romania is an important market for ICC arbitration, so the choice of organizing such a conference in Bucharest was a natural one. We have organized a similar conference back in June 2017, together with Maria Hauser-Morel and Alina Leoveanu, and the feedback we received from the Romanian practitioners was very encouraging. We are now back after almost two years to meet again with the users of ICC arbitration in Bucharest.
With regard to the topic – which is focused on Construction disputes – this also came as a natural choice, as the majority of ICC cases involving Romanian parties are based on construction contracts.
Alina Matei: ICC is the the world business organization and the ICC International Court of Arbitration® has been the world’s leading arbitral institution since 1923. ICC has extended its global footprint beyond its Paris headquarters and has established case management teams in Hong Kong, New York, Sao Paulo and Singapore. How about Eastern Europe? Is the ICC plannning to open a case management team in Eastern Europe? Is the ICC represented in Romania?
Laetitia de Montalivet: ICC is not yet planning to open a case management team in Eastern Europe, but acknowledges the importance of this region.
ICC is very well represented in Romania by our National Committee, ICC Romania, as well as our two Court members, Mrs Luminița Popa, Managing Partner at SUCIU POPA & ASOCIAȚII and Mrs Cristiana Irinel Stoica, Founding Partner at STOICA & ASOCIAȚII. We also have a very active ICC YAF (Young Arbitrators Forum) Representative, Mr Cosmin Vasile, ZRP Partner, whose mandate will finish shortly, and he will be replaced by another Romanian national, Mrs Ioana Knoll-Tudor, Local Partner at Jeantet. Until recently, one of the Vice Presidents of the Court was Romanian as well, Mrs Crenguța Leaua, Managing Partner at LDDP. They are all very active and outstanding professionals, and it is a great pleasure and honor for us to work with all of them.
Alina Matei: Is arbitration the preferred dispute resolution method for construction disputes?
Maria Hauser–Morel: Construction disputes without any doubt constitute a large percentage of cases which arrive to the ICC Court (at average between 20-23%). The ICC Court has been for many years the preferred arbitral institution to decide FIDIC disputes, and we value our long-standing cooperation with FIDIC in this regard. According to the 2018 Queen Mary Internatinal Arbitration Survey, the use of international arbitration is likely to increase in the construction sector and the ICC stands as the most preferred institution (77% of responses). Arbitration is indeed the preferred dispute resolution method for construction disputes as it offers a flexible procedure, where the parties can adjust the evidentiary proceedings according to the needs of their case. So we may expect an increase of construction disputes resolved by the ICC Court of Arbitration.
Alina Leoveanu: In terms of ADR, the disputes we administer at the ICC International Centre for ADR concern a wide range of business sectors. As in ICC arbitration, energy disputes are the most frequent, followed by disputes related to telecommunications and construction.
Alina Matei: What are (some of) the pitfalls you have encountered with the ICC arbitration clauses in cases involving Romanian parties?
Maria Hauser-Morel: As a preliminary remark, I would say that as Romanian users are generally knowledgeble in arbitration, most arbitration clauses are drafted well and do not cause any problems. Sometimes, clauses are unclear but the parties agree to cure them, and so there are no problems. If problems do arise, they are related to clauses which refer to non-exising institutions, giving rise to doubts as to the parties’ intention, or clauses which are contained in FIDIC contracts, where parties attempt to modify the General Conditions with regard to the constitution of the arbitral tribunal or even the applicable rules. The ICC Rules are very clear that only the ICC Court can administer disputes under the ICC Rules.
Alina Matei: Based on your experience as Counsel of the Eastern European Team at the ICC Secretariat, what recommendations would you have for in house counsel or lawyers to follow when they include such arbitration clauses in their contracts?
Maria Hauser-Morel: The first advice would be to use the standard ICC arbitration clauses which are available here . The parties may of course provide more details in their arbitration clause but it has to be done in a clear manner and in order to do so, one has to think about multiple scenarios (who could be a party to the arbitration, how many claimants and respondents will there possibly be, what if one party is not participating), and it may happen that a badly written clause will cause interpretation disputes at the outset of arbitration. And in any event, the ICC Rules of Arbitration have solutions for most procedural situations. So my advice would be to follow the rule „less is more”! And whenever the parties have doubts about drafting arbitration clauses, they may also contact the ICC Secretariat to seek advice.
Alina Matei: Mrs Alina Leoveanu, you are the Manager of the ICC International Centre for ADR. Could you explain in a few words what type of cases your team administers at the Centre?
Alina Leoveanu: Certainly. The ICC International Centre for ADR is the second pillar of the ICC Dispute Resolution Services, alongside the ICC Court and its Secretariat. The Centre offers a range of services that can be used separately, successively or even concurrently, which include mediation, expert appraisal, dispute boards and DOCDEX (Documentary Instruments Dispute Resolution Expertise).
Alina Matei: Earlier this year, from 7 to 13 February 2019, the Centre organized and hosted the 14th edition of the ICC International Commercial Mediation Competition which is the world’s largest moot exclusively devoted to international commercial mediation. Has Romania been represented at this prestigious competition?
Alina Leoveanu: The 14th edition of the ICC Mediation Competition has been a huge success. We have welcomed 63 teams from all over the world, 156 professionals (judges and mediators) and 45 volunteers. 19 out of the 63 teams were first comers from Hong Kong, Australia, India, UK, USA, Tunisia, Italy, the Netherlands and Canada. I am proud to report that, during the past years, Romania has been reqularly represented at our competition and this year the Romanian team (composed of Sorina Florea and Andrei Greceanu, both students at the University of Bucharest, and coached by Ana Gabriela Atanasiu and Carina Vermesean) won the Best Public Speaker Award.
Alina Matei: Mrs Alina Leoveanu, you are also co-chair of ICC Young Arbitrators Forum (YAF). What is ICC YAF ?
Alina Leoveanu: ICC YAF is the young practitioners network of the ICC and it brings together young lawyers and in-house counsel to provide networking opportunities and strengthen ties among younger members of the international dispute resolution community. The ICC YAF global network includes more than 10,000 members across six Regional Chapters in Africa, Middle East and Turkey, North Asia, South Asia, Europe and Russia, Latin America and North America). For the past two years, our ICC YAF representative in Romania, Cosmin Vasile, has done an excellent job to promote ICC YAF in Eastern Europe. As Laetitia mentioned, for the 2019-2021 mandate, Romania will remain represented by Ioana Knoll-Tudor.
Alina Matei: A message for our readers, please.
Laetitia de Montalivet: It is always a great pleasure to be in Bucharest and meet with such a dynamic business community. Please let your readers know that we are at their disposal, and they shouldn’t hesitate to contact us, at the ICC headquarters in Paris, by phone or by email, while we are here, in Bucharest or through our representatives in Bucharest.
Maria Hauser-Morel: Our second visit to Bucharest shows our dedication to the Romanian dispute resolution market. It is always a pleasure to be here, as the welcome that we receive is very nice. We hope that we can maintain our relationship with the Romanian users, and encourage even more exchanges between them and the ICC. It is by sharing our experience with the users that we can improve our services.
Alina Leoveanu: Coming to Bucharest is coming home for me. It is great to be back. I encourage the Juridice readers to get involved with the ICC, both at local and international level. There is so much we can do together. ICC YAF is a great platform. I encourage your younger readers to attend our educational programmes by registering to be an ICC YAF member here.
Alina Matei: Thank you for your time.