30 June 2021
Markus P. Beham is Assistant Professor at the Chair of Constitutional and Administrative Law, Public International Law, European and International Economic Law of the University of Passau, Germany, and an adjunct lecturer in international law at the University of Vienna, Austria. He holds a joint doctoral degree from the Université Paris Nanterre and the University of Vienna and a doctoral degree in history from the latter as well as an LL.M. degree from Columbia Law School in New York. Prior to returning to academia, Markus was part of the International Arbitration Group of Freshfields Bruckhaus Deringer LLP, resident in the firm’s Vienna office. He continues to provide expert advice for private clients, law firms, NGOs, international organisations, and states on matters of international law, EU law, and arbitral procedure. He has acted in cases before ICSID, ICC, DIS, and ad hoc tribunals as well as before the Austrian Supreme Court.
Questions:
What traits or personality in a person that you think are more important as an arbitrator?
Reflection in decisions of equity and justice, integrity in questions of ethics, sound judgment in questions of practical result.
What advice do you have for someone interested to be an arbitrator?
First, of course, try to work for or with someone who actually practices arbitration. That might not be as easy as it sounds but if you put yourself out there by publishing substantive work, even on a blog, or by simply attending events and socialising, opportunities will reveal themselves sooner or later.
Who is your idol and role model and why?
I have been very fortunate in having had the opportunity to work with or for people that carry the qualities I strive for both professionally and personally. So, I cannot really say that there is any one “idol”. Rather, I have tried to measure my decisions by the example of my mentors and peers, hoping to perhaps present the same high standard to others that I have been lucky enough to experience.
Taking into consideration that climate change is nowadays one of the major topics, do you think that disputes relating to environmental and climate change matters will gain relevance in international commercial arbitrations, in particular in supply chains?
The growing phenomenon of climate lawsuits impressively demonstrates how once ridiculed propositions have become galleon figures of progressive development of the law. Increasingly, “soft law” standards will become binding requirements and the arbitration community will have to become fit to handle such issues as a natural part of any commercial dispute.
Can you share the most interesting case you had to handle?
Definitely my involvement with a successful pitch in a case relating to innovation in the renewables sector that built on my personal theory of expropriation and legitimate expectations. The client has since managed to gain partial success before the German Federal Constitutional Court but the investment proceedings are still ongoing. With an eye to the recent settlement in the Vattenfall dispute there may now be a realisation by states that the right to regulate comes with the necessity to properly take into account the interests of investors when conducting a proportionality test. Otherwise, it will be unlikely that corporations will have the proper incentives to play their part in combating the climate crisis.
What are the challenges do you think COVID has brought to arbitration and arbitration practitioners?
Generally, the situation, as unfortunate as it is, has facilitated great leaps in the process of digitalisation. However, there is surely no denying that arbitration has also always been a people’s business and a lot happens simply on the basis of trust. While conferencing tools have allowed to keep the conversation going and foster professional networks, the recurring concern I hear from students or at mentoring events is the difficulty to break into the field under the current circumstances.
Do you think that arbitration institutions should adopt their own environmentally-related sets of arbitration rules?
New kinds of legislation aimed at supply chain due diligence or wide-reaching environmental impact assessments will require arbitral institutions to pay closer attention to an arbitrator’s ability to render an enforceable award. If you look at the German supply chain legislation, it lists the major UN human rights conventions, the core conventions of the International Labour Organization, and the Minamata Convention. Not many seasoned commercial arbitrators will be familiar with these treaties and there will be a greater need to rely on lawyers trained in both public and international law alongside the usual qualifications.
What is your comfort food and why?
As a half-Brit, I will have to say a “full English”. Unfortunately, BREXIT has made a large number of items unavailable in the British food store I frequent in Vienna. It is a weak sign of progress that we seem to have moved farther apart in 2021, as opposed to closer together.
Will COVID have a lasting impact on arbitral proceedings?
For sure, digitalisation is here to stay, and we have simply become accustomed to the conveniences of handling certain procedural elements online. But this cannot be a full substitute for in-person meetings, even though I have heard more than once that settlements have never occurred as fast as over online conferencing tools.
Given the choice of anyone in the world, whom would you want as a dinner guest?
My late grandfather, who I never had the chance to experience in the professional world in which he practiced.
Is there something that you have always wanted to do but never had a chance to accomplish it?
Arbitrate proceedings based in Singapore!
You will be isolated on an island for 5 days. Name the items you would bring along if you are allowed only 5 items?
Five copies of the Report of the International Law Association Committee on International Law and Sea Level Rise that I have had the chance to work on as part of the Committee to hand out and discuss with the people directly concerned by this pressing symptom of the climate crisis.