Investor-State arbitration : hearings, expert cross-examinations and quantum with Antolín Fernández Antuña

Antolín Fernández Antuña is one of the world’s most experienced lawyers in Investor-State arbitration. For five years, he has represented the Kingdom of Spain and participated in 42 arbitration proceedings constituted under the ICSID, SCC and UNCITRAL Rules. He recently left the Abogacía General del Estado (Ministry of Justice) and established Antuña & Partners, where he is Managing Partner.

Antolín’s expertise is however not limited to international investment law. Before joining Spain’s in-house international arbitration group, he worked as an international taxation expert for the CIAT (Inter-American Center of Tax Administrations) and as a State Finance Inspector for Spain’s Ministry of Economy and Public Finance.

It is Jus Mundi’s honor to interview such a prominent practitioner.

You have served as Counsel for the Spain’s in-house international arbitration group for 5 years. Your in-house team has been built to defend the Spanish State against the numerous claims it was facing under the Energy Charter Treaty. The work achieved by your team is quite impressive! How did you handle all of these cases at the same time?

As you rightly say, the in-house team faced numerous claims under the ECT -more than 40 cases, as a matter of fact- which we were able to handle thanks to the personal commitment of a great group of young but experienced professionals, willing to work countless hours for the defense of their country. In addition to the full commitment of everyone involved in this endeavor, a key driver was flawless coordination as well as a deep-rooted belief that only through true team effort could high goals be achieved. All those ingredients, the working atmosphere, the considerable challenge, combined to make those past five years the best in my career so far.

You have participated in 29 hearings on the merits in 5 years. What did you learn? Was each arbitral tribunal very different or rather consistent? Do you think that a skilled lawyer should adapt his strategy and approach to the composition of the court?

To quote Albert Einstein: “The only source of knowledge is experience.” During all those cases, which represent 11% of the total number of investment arbitrations in the world over that period, my learning curve shot up dramatically. There is no better school than the hearing room, and no better teacher than colleagues, opposing counsels and, for sure, tribunals.

I have worked with approximately a hundred treaty arbitrators. And one of the most important things I have learnt is that each tribunal is unique. Also, it is not only a civil law versus common law matter. That’s an oversimplification frequently heard. What I have found, on top of a wide variety of backgrounds and profiles, is that the same arbitrator can behave and react differently depending on the case and on the role that he or she plays within a specific panel. It is human nature and psychology.

The main goal of any counsel should be to persuade the individuals composing a tribunal. That is why it is crucial, as part of the preparation for a case, to study in full detail the profiles of the panel. During the hearing, one panel will need more facts, another will want more law, and yet another will highlight quantum aspects of the case. Only by adapting to those profiles and understanding the specific needs of any given tribunal, will counsel optimize the chances of persuading the panel of arbitrators.

Considering Jus Mundi’s unique ISDS database, many of our users ask us to provide legal analytics (statistics) on arbitral awards and arbitrators. Would you find that useful as a Counsel to better assess legal risk and get to know arbitrators? Can this bring more transparency to the arbitration process?

No doubt about it. There is a lot of information in the public domain. But we need intelligence as well. And artificial intelligence tools will be a must in the nearest future. This sort of statistical information on the awards and the arbitrators does not only draw a very graphic picture of the arbitration arena but also provides a useful tool when designing the case and appointing the arbitral tribunal.

Regarding transparency, it is paramount not to lose sight of the fact that, at the end of the day, we are talking about public finance, about taxpayers’ money. My background as a government official for 15 years, in the Ministry of Economy and Public Finance since 2004 and the Abogacía del Estado (Ministry of Justice) over the last five years, makes me keenly aware of that. When dealing with public monies, the highest possible degree of transparency is a critical requirement.

You also have substantial experience as an expert cross-examiner, having taken part in 35 cross-examinations of experts during your time as Counsel for Spain. Do you have any advice for effective questioning?

As you say, in investment arbitration I have performed many cross-examinations of regulatory experts, quantum experts and also fact witnesses. Moreover, prior to that, during my years as State Finance Inspector, I had to examine dozens of financial and tax experts. Cross-examination is not only the most challenging part of the hearing (and the most rewarding, if it goes as planned) but also the foundation for strong closing statements or post-hearing briefs, which many times are the prelude to the final award. Summing up, cross-examination is where savvy counsels shine.

To be an effective cross-examiner, you need to be a kind of Muhammad Ali, “float like a butterfly and sting like a bee.” To achieve all that, in my opinion, the golden rule is exhaustive preparation in advance. The cross-examiner must ambition to know, at least, as much as the expert on the specific subject of the cross. It is the only way to ask the right questions at the right time. So that requires days and nights of preparation, analyzing the experts and their reports, and mocking the cross-examination not just one but many times before the actual cross-examination.

Importantly, never stop looking for new ways to communicate your point in the clearest and most understandable manner for the tribunal. For example, when cross-examining, I believe it can be crucial to use experts’ excel sheets attached to their reports and show them on the screen to the tribunal since that is the heart of any quantum expert report. Not just scratching the surface, but getting to the core of the report, testing its robustness by using the excel sheets and sensitivities in a lively manner in front of the tribunal.

Another apposite example in this vein: I developed a new kind of demonstrative tool applied to cross-examination. It consists in using a laptop or tablet with a touch screen and translating the question-answer exchange in a very graphic and numerical way, making annotations on tables or graphics and showing them “live” on the screen, going from point A to point B both verbally and on the screen. It helps a lot with complex quantum issues.  The first time I did it in cross-examination, everyone in the room loved it, nobody had seen it before. Someone even called it “Antuña’s Live Demonstrative”! I just think it is applied common sense (cognitive science, if you prefer) and seeking the best ways to communicate your point most transparently to fill the needs of your audience. However, that requires, as I said before, sound skills and thorough preparation in advance.

You have just started your own independent practice, congratulations! Why did you want to do it?

Many thanks. Yes, I have just launched Antuña & Partners, an international arbitration boutique based in Madrid, for two main reasons.

Firstly, after acting as Counsel for the State in more than 40 arbitrations, I felt that I needed a new challenge to keep growing professionally. So loving arbitration practice as I do, the natural step was to establish my own independent practice.

Secondly, and no less important, I had been missing the role of adjudicating, of deciding on the law and the quantum, which is what I had been doing the previous ten years as State Finance Inspector, before entering the international arbitration arena. Now, having my own practice, I will be able to act as arbitrator and resolve disputes, something I had sorely missed.

Moreover, as a lawyer, economist and certified accounts auditor, I find that international arbitration is for me the perfect field to keep developing my skills.

On your website you said that you are “bridging the gap between law and quantum”. Can you tell us more about what this means?

Let’s face it: damages are the raison d’être for arbitration. Nevertheless, due to different reasons, the damages awarded are frequently the source of frustration for the parties involved in arbitration (sometimes, even for the prevailing party). International arbitration is evolving, the number of cases and awards is growing exponentially, and fortunately, more and more attention is paid to damages each time. However, there is still a long road ahead regarding the quantum part in arbitration.

Plain and simple, if we want to promote the rule of law, as a way to improve global justice, economic growth and development, which in my opinion should be the ultimate goal, more certainty and accuracy is needed in the quantum. The certainty that the parties will get an award that is not only right on liability but technically immaculate when assessing the quantum derived.

That’s what I mean when I say that we aim to bridge the gap between law and quantum. Experts are absolutely key, no one questions that. However, they are not the ones advocating the case, nor the ones adjudicating it. Counsels and arbitrators are.

That is precisely our strength at Antuña & Partners as an international arbitration law boutique, supported by our dual background and experience in both law and finance.

What kind of international legal research tool does an arbitration boutique like yours need? Does Jus Mundi answer to this need? 

Considering the amount of data and information that we have in today’s arbitration, any practitioner needs to use research tools on a day to day basis. As an example, now in 2019, according to United Nations (UNCTAD), there are more than 900 known treaty-based Investor-State arbitrations, and we will for sure reach and surpass the iconic figure of one thousand by 2020. That number of cases, which has grown exponentially over the past two decades, generates a great deal of data and information, which needs the right tools to be put into good use.

We at Antuña & Partners are devoted to providing our clients with the best service in high-profile, complex international disputes. Thus we need to separate the wheat from the chaff most efficiently and effectively. Making good use of the best research tools available, such as Jus Mundi, is vital. It is not a matter of choice, but a must.

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