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Swiss Arbitration Interview Series: Professor Tercier
What are the defining moments in your career that shaped your approach to arbitration?
I can think of three pivotal moments that have defined my professional career. The first was during my academic journey when a professor remarked, “You’re not too bad – you could become a professor.” That moment gave me the confidence to pursue an academic career seriously. The second was when I received a call from the ICC Switzerland, asking if I would accept an appointment as a sole arbitrator. I accepted without fully understanding what I was getting myself into, and this case marked the beginning of my arbitration career. The third defining moment came when I received a call from Anne Marie Whitesell, Secretary General of the ICC International Court of Arbitration, asking if I was interested in possibly becoming the Chairman of the ICC Court, which is what happened.
How do you handle adversity in such a demanding profession?
Almost everything in my career has been fascinating – whether as a professor or arbitrator. The key, I believe, is passion. If you’re passionate about what you do, you’re willing to work hard and persevere through challenges.
Another crucial factor in my success has been the opportunity to work with bright, up-and-coming talents. Over the years, I have been fortunate to have exceptional students, assistants, and dedicated individuals working alongside me. I would not have been able to manage everything without their help.
Throughout your career, you’ve mentored numerous students and young professionals, what has mentorship meant to you personally?
On a personal level, I believe it stems from my love for teaching. I’ve always enjoyed sharing my experiences and giving back what I received from others. Being a professor at a university was a dream for me, and I’ve also had opportunities to mentor during my time at the ICC and through the ICCA’s mentoring program.
I also believe that mentorship is critical for the evolution of arbitration. Older generations must help prepare younger ones, not only through books but through personal guidance. It’s been extraordinary to meet talented arbitrators who have benefited from my experiences.
I would add that mentorship gives my life and career a deeper sense of purpose.
What are your observations of the evolution of international arbitration over the years?
When I started, cases were expected to be resolved quickly, reflecting the core promise of arbitration: efficiency. However, as business and life have grown more complex, so have the disputes we face. This complexity has led to arbitration becoming often more expensive, cumbersome, and drawn-out – which is far from what the parties typically seek.
A few years ago, the legal director of an international company in Geneva, stated what he considered to be the biggest concerns in arbitration: time, time, and time. It’s crucial for arbitrators to balance between efficiency and fairness.
Recent innovations, such as expedited procedures, are promising, but we still have work to do to streamline arbitration.
What practical reforms do you believe are necessary to support arbitrators?
The growing complexity of arbitration has significantly increased the challenges for arbitrators, who work with limited resources compared to well-supported counsel teams. This imbalance has become progressively unreasonable.
One necessary reform is to provide arbitrators with more support, particularly through the use of tribunal assistants. Although some resist this idea due to concerns that assistants might act as “fourth arbitrators,” this perception needs to change. Assistants are essential, and their role can be clearly defined as administrative and procedural, not as decision-makers. There have been several proposals suggesting that arbitrators work more collaboratively with teams to handle these challenges, and I believe we need to continue finding new ways to give arbitrators the assistance they need.
Institutions also play a key role in this. They should not only provide support but offer clear guidelines and frameworks to ensure that arbitrators can perform their roles efficiently while maintaining the integrity of the process. Ultimately, institutions need to recognize that arbitrators are the central figures in arbitration, and they must be empowered with the right resources to manage increasingly complex cases.
Given the increasing complexity of expert-driven arbitration, do you think it would be beneficial for arbitrators to have a more hands-on role in guiding the expert selection process?
I fully agree that experts now play an enormous role in arbitration as cases have become significantly more complex.
There have been proposals, such as those by Prof. Klaus Sachs or the IBA, to involve experts more closely with the arbitral tribunal. One such suggestion is to allow experts to act as assistants to the arbitral tribunal, sitting alongside the arbitrators to help them understand complex technical issues. The experts would not make decisions or proposals but would instead guide the tribunal by explaining the technical aspects of the case in a way that supports the arbitrators’ decision-making. I see the benefits of such an approach as it allows arbitrators to make more informed decisions without the risk of misinterpreting the technicalities. There has been pushback against these proposals, primarily due to concerns about additional costs and the reluctance of parties to accept experts not chosen by them. However, in my view, involving experts as assistants to the tribunal could be a step in the right direction.
In your experience, what are the unique advantages of using Swiss law to govern international agreements?
I’ll admit, I may be biased when it comes to Swiss law, but for good reason! Swiss law is a unique blend, shaped by the compromise of several traditions, including European and comparative influences. The result is a system that is concise, open, and well-adapted to international trade and contracts. It’s this combination of clarity and flexibility that makes Swiss law so appealing for international agreements. I’ve seen firsthand how it is well-received by parties from diverse legal backgrounds.
How can Switzerland continue to maintain and strengthen its position in the face of rising competition from other international arbitration hubs?
Switzerland’s reputation as a premier seat for arbitration is built on its long tradition of neutrality, solid legal infrastructure, and strong case law from the Swiss Supreme Court, which adds consistency and reliability to the process. One of its key advantages is that it offers only a single step for recourse, making it more efficient compared to other jurisdictions. This simplicity in the treatment of cases by courts is appealing to international parties seeking a streamlined process.
Recent reforms, such as allowing appeals to the Swiss Supreme Court in English, are positive signs of Switzerland adapting to global needs. Additionally, strong academic institutions, including the MIDS (Master of Advanced Studies in International Dispute Settlement), play a crucial role in producing highly skilled professionals in the field of arbitration.
But, in any case, competition is healthy. It drives innovation, and Switzerland must continue to demonstrate its strengths!
What, if anything, distinguishes Swiss arbitrators from those other jurisdictions?
It’s difficult to pinpoint a single factor, but several characteristics set Swiss arbitrators apart. One of the most interesting aspects is the diversity in styles, reflecting Switzerland’s multilingual and multicultural landscape. Swiss arbitrators come from German-speaking, French-speaking, and Italian-speaking regions, creating a variety of approaches and perspectives.
Switzerland is also seeing a push from a new generation of arbitrators, including a growing number of women, who are bringing fresh perspectives to the field. This next generation is contributing to greater diversity of thought, style, and experience in the Swiss arbitration community.
Looking ahead, what do you foresee as the most significant procedural changes or innovations in arbitration?
I hope that we will see a trend towards more streamlined, cost-effective arbitration processes. The current trend of increasingly lengthy, complex, and expensive proceedings is not sustainable and threatens access to justice. Over the next decade, I believe we will need to find innovative ways to simplify and expedite proceedings without sacrificing fairness or due process.
To achieve this, we will likely see the implementation of more expedited procedures, possibly an increased use of technology, and as discussed, I advocate for providing arbitrators with more support, including assistance from teams, tribunal assistants, and experts.
Ultimately, arbitration must adapt to ensure it remains efficient, accessible, and fair, the core values that have always been key to its success.
In your opinion, what is the most underrated skill that an arbitration practitioner should cultivate?
One quality that is often overlooked is the importance of listening. As Goethe once said, “Zu reden ist ein Bedürfnis, zuzuhören eine Kunst” (talking is a need, listening is an art). It is not enough to simply speak or have opinions; you must truly listen to understand others. In arbitration, this ability to listen – to counsel, witnesses, experts and co-arbitrators – is crucial. Many underestimate how vital listening is, but in my experience, most conflicts or misunderstandings arise not from differences in views, but from a failure to listen properly.
What is your top piece of advice for young arbitration practitioners?
Beyond the essential qualities of a strong academic foundation, language proficiency, and hands-on experience, it’s often the unexpected factors, like luck and timing, that shape a career. Sometimes success is simply about being in the right place at the right time. Opportunities can appear when you least expect them. Seizing those moments, combined with consistent hard work, is often what truly pushes a career forward.
Over the years, I am happy to see young gifted lawyers making their way in the arbitration world, as counsel, as secretary, and sometimes even going solo. This has been wonderful to witness, as it broadens diversity in the field and opens up new possibilities for young professionals.
Is there a question you wish someone would ask you in an interview, and how would you answer it?
“Why are you still working?” and my answer is simple: I love what I do. It’s a privilege to continue working in a field that excites and inspires me. However, I know that soon it will be time to make way for the next generation of arbitrators.