INTERNATIONAL ARBITRATION 1/3LY
DAVID Yes, exactly, because the relationships are very solid and have been in place for years – you know that you have to maintain relationships with these organisations moving forward, particularly once activity picks up. MAARTEN Yes, and most of the major disputes are settled by a process that is close to mediation. There is a big drive for senior management to talk to their counterparts, and for all counsel involved in the issue to engage in an amicable and constructive way, as they know that on other fields, other projects, other assets, they are also working together. So overall, I would say that the number of disputes has increased at certain levels in the industry, but it is certainly not growing exponentially. DAVID That certainly is consistent with our experience – a lot of these disputes are resolved by negotiation at a very high level nowadays, rather than going to litigation or arbitration. If you do end up in a dispute, do you have a preference for arbitration or litigation? MAARTEN First of all, I am very much in favour of mediation. I really believe there is still a lot to be done in our sector to actively push contractual parties to engage in mediation in a professional manner. That being said, when it comes to disputes that can’t be resolved by mediation there are horses for courses and it all depends on where the dispute is and who you are dealing with. There are definitely certain types of disputes and certain countries where arbitration is the best, and possibly the only, way forward. However, arbitration can be costly and slower than the court system.
At the same time, I have a lot of confidence in the court systems of a number of jurisdictions and, in certain jurisdictions, litigation through the courts would be my preference.
The second one would be that law firms should lead the way in new business models and in the use of IT, so that we don’t get stuck using obsolete, old-fashioned practices. The law firm is the place where innovative ideas about how to assist clients with legal matters have to be developed, and they then have to be very quickly presented to clients so that they can get traction. The business model needs to be adapted and I look at my panel law firms to lead the way in finding out what can be done better and more efficiently, adopting flexible pricing using technology and artificial intelligence, as opposed to clinging on to the way it was done thirty years ago. DAVID Do you think the hourly rate has had its day? MAARTEN Probably. Although we are not there yet. But I wouldn’t be surprised if in a number of years the hourly rate will be used less frequently. If you look at companies in the finance sector, for example, much of the work is done on a fixed fee basis. So I think that with work that can be standardised, and where performance indicators can be identified, we will definitely see a shift to different paying systems. DAVID Yes, I agree. I think as in-house counsel continue to review their legal spend and improve efficiency, we will see a greater movement towards innovative fee structures. Maarten, many thanks for your time and for your invaluable insights.
A GENERAL COUNSEL’S ADVICE TO PRIVATE PRACTICE LAWYERS
DAVID One last question please, which I’m sure you must get asked a lot: if you could give outside counsel one bit of advice as to how to provide a better service, what would that be? MAARTEN One of my key responsibilities is to make sure that we deliver legal services to the company in the most efficient way. So one of the things that we have done at Total is to limit the amount of law firms on our panel so as to make sure that we create an environment where we can spend time working together, getting to know each other and exchanging knowledge. So, I think the first piece of advice for law firms would be to invest time and resources into nurturing that relationship with in-house counsel. The result is that when a case comes up and a file is opened, there is no need to spend time getting to know your client, so there is a lot of time and efficiency gained. In a similar vein, working with partners and teams at law firms that have a high degree of stability, as opposed to always introducing a new face or a new team, is an important matter because this greatly improves efficiency.
SO OVERALL, I WOULD SAY THAT THE NUMBER OF DISPUTES HAS INCREASED AT CERTAIN LEVELS IN THE INDUSTRY, BUT IT IS CERTAINLY NOT GROWING EXPONENTIALLY.
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