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Swiss Arbitration Interview Series: Domitille Baizeau

What led you to the law?

Chance in many ways. When I moved back to Europe at age 16 after having spent most of my childhood in Africa, all I could think of was a job that would take me back to Africa. I was then also passionate about international relations, history and politics, and a career as a diplomat seemed like a great idea. So I set off to study political science and with it, because I had to rather than by choice, law.

I realised very quickly that I really enjoyed law and that the route to becoming a diplomat would be too long and rather uncertain. In law, I also quickly decided that the fun part would be private practice, in litigation, though I kept a strong interest for public international law and geopolitics throughout my studies. It is only after several years practising commercial litigation that I discovered international arbitration, another unplanned love at first sight.

What was your dream job as a child?

In my dream world: being a rock singer, another Pat Benatar, Patti Smith or even Madonna, having grown up in a family of real music and party lovers. But music (and dancing) in my family was just a hobby, a way to have real fun, and I quickly realised that a career in that field was never going to happen, nor a great idea.

As a young girl, I remember wanting three things: a professional career so that I would not depend on anyone for a living, especially not a man (I have my mother to thank for this); a job where I would be my own boss and not be bossed around by anyone – no doubt the result of having two older brothers who did try to boss me around all the time – without much success I should add; and a job that would involve speaking to people, communicating.

Let us imagine: all the time in the world, all the money in the world, and no lawyers in the world. What does the Domitille Baizeau in that world do?

I would still work, because like many lawyers, I need the intellectual challenge and social interaction. And I would probably still want to be my own boss! More concretely, I would want to work on an initiative empowering and educating women. If it could be Africa-related, all the better.

Returning to present day, what is your favourite part about living and working in Switzerland?

In addition to being a beautiful and safe place to live and raise a family, I am a big fan of the working culture here. At the risk of overgeneralising, I find that the Swiss (including the Swiss by adoption) tend to be efficient, reliable, optimistic, and they have integrity. They get on with it, do not complain all the time, work together and not against each other. And while it may not be everyone’s cup of tea, I also appreciate their direct communication style.

Is there anything you particularly enjoy in your day-to-day work in international arbitration?

Aside from drafting, it is meeting and getting to know clients, understanding their concerns and working closely with them to try to win or settle their cases (evidently I prefer it when the commercial justice of the case is on their side).

Is there any particular type of case you perhaps enjoy a little more or less than others?

As counsel and arbitrator, I especially enjoy commercial disputes with a strong multicultural element to them and a few key individual protagonists involved. Behind each dispute, there is very often a falling out between two people, amplified by the difference in culture, language, corporate and communication style. These cases tend to be challenging and interesting. As for dislikes, I do not particularly enjoy construction arbitration.

And with all cases, what tends to be your favourite part?

I truly enjoy the process of drafting, and in particular, working with either a team or my co-arbitrators to get to the best possible drafts. This job is primarily about written advocacy and persuasion – much more than in litigation.

As counsel, aside from drafting, my favourite part of a case is brainstorming with a team on the best ways to argue or seek to settle a case. As an arbitrator, I particularly enjoy the hearing, which is the moment where everything tends to fall into place. I also enjoy deliberations, provided that all the arbitrators have done their homework and approach the matter with an open mind and a non-partisan attitude (which, sadly, is not always the case).

You are a tremendous writer. What, or whom, do you attribute this to?

Thank you for the compliment; I do not know if that is true, but I know what inspired and helped me to focus my drafting, it is four things, in no particular order:

  • A very inspiring course I took in my last year at law school in New Zealand on plain English drafting. International arbitration in my view is a lot about plain English drafting because there is almost always one protagonist who does not have English as a first language. So while one can use a more expansive vocabulary, that may not prove necessarily effective. Plain English is a safer option.
  • My bilingual skillset, which has served as an advantage and disadvantage at the same time. Because I am constantly juggling between French and English in my head, I have to be extremely careful never to mix the two, including grammatical constructs, and tend to opt for the simplest language in both.
  • Of course several strong drafters whose path I crossed over the years (even as I grew more senior), with whom I had a great time brainstorming on specific drafts, or legal drafting generally, starting with my first boss in New Zealand, Sam Maling, followed by several partners at Freshfields in Paris, and of course at LALIVE Pierre Lalive and Veijo Heiskanen, who both had a very strong influence on my drafting.
  • My love for communicating ideas in writing and a few rules I have developed to best achieve that. Before I start drafting or reviewing a draft, I think carefully about who I am writing to, why, what I need to convey, and then how I would understand what I wrote if I were on the receiving end (including if I was in a hurry). These are very simple but quite effective rules, regardless of the form of the message—a submission, a procedural order, a letter or a simple email.

You currently sit as the Vice-President of the Board of Directors of the Swiss Arbitration Centre. What led you to this role? And what excites you about it?

I have been involved with the Swiss Arbitration Centre (previously the Swiss Chambers Arbitration Institution) since 2009 when I became a Member of its Arbitration Court; I left in 2018, when I became an ICC Court member, but rejoined the Board of Directors of the Centre in 2021.

I am really enjoying the role. First because all the Board members are passionate about promoting Swiss arbitration in and outside Switzerland – and it is obviously nice to share the same goal – and second, because we all have the space to provide critical views, including me, often doing so as the non-Swiss on the Board (accepting, of course, that I have been practicing here for 20 years). I am very pleased to continue to be involved.

What are your views on the use of Swiss law to govern agreements of non-Swiss entities? Do you see it growing or shrinking?ation?

As a common law trained lawyer, who came to Switzerland convinced that common law was vastly superior because it was fully articulated, clear, certain and predictable, I have since developed my knowledge – and have become quite a fan – of Swiss law over the years. It has a degree of predictability that can appeal even to parties from common law jurisdictions, but is flexible enough to reflect specific commercial realities. I also find it accessible, with commentary and other information readily available in English for international users.

So while I do believe that English law will continue to dominate in international trade for some time, Swiss law certainly has its place as an alternative, and in my view, a very good one, in particular for parties from civil law jurisdictions involved in international trade.

What is your take on Switzerland as a seat? Do you think it will grow or shrink?

I am no doubt a little biased, but it is a fact: Switzerland remains one of the best seats – if not the best seat – for international arbitration. This is not only because of Swiss arbitration law, but also and indeed primarily because of the role of the Swiss courts in international arbitration. Particularly attractive is the fact that challenges of arbitral awards are brought directly before the highest court in the country, and in that court they are heard by specialised and highly competent judges. The very sound way in which the Swiss Federal Supreme court has handled a growing number of challenges of investment treaty awards in recent years is a very good illustration of that.

Parties from all around the world choose to arbitrate in Switzerland. As counsel and an arbitrator, you probably often find yourself regularly dealing with new cultures and new business practices. What are your top tips for getting up to speed with them? And how important is it to do so?

As an arbitrator, it is crucial to be comfortable and open to dealing with various business practices, free from cultural biases. Parties must trust their arbitrators to decide disputes on their merits, but not jump to conclusions by interpreting all events through a single cultural filter. That is true of counsel as well. 

Nothing irritates me more than having a lawyer in my team, or opposing counsel, or even an arbitrator during a hearing being condescending with a culturally different witness, who may come across to some as “unsophisticated”. Regrettably, this is not uncommon—even in this jurisdiction.

There is no magic to understanding culturally different practices as arbitrator. You need an open, curious mind and be prepared to read, listen and understand. As counsel, I try to take the time to get to know my clients, understand their frustrations, what went wrong from their perspectives, not immediately walk them through the narrative of how the transaction “should have been done”.

How has the practice of arbitration changed since you started practicing? What are some improvements and some areas of concern?

In terms of improvements: the increasing gender and cultural diversity among both arbitration practitioners and arbitrators. It is a much, much larger pool than when I started in the field nearly 25 years ago. It means that the profession has becomes more accessible and parties from all around the world are better understood and served. There remains work to be done but that has been a huge improvement.

Conversely, I am concerned about what seems often like excessive lawyering in the conduct of arbitration, with overly long briefs overturning every stone, repetitive witness statements and unnecessarily high volumes of documentary evidence. At the very same time, arbitration lawyers, corporate counsel and institutions love talking endlessly about the best ways to achieve time and cost efficiency in arbitration. It is as if we had a permanent disconnect between what we say and what we do.

I appreciate that this trend is in part reflective of the more complex commercial and political world we live in, transactions and parties are more sophisticated, the implications of certain disputes further reaching and the range of disputes broader. However, I think it is also the result of a collective loss of courage and creativity. We are increasingly all doing things in the same way when conducting arbitrations, on the basis that it reflects tested, “best” practices. But does it? Perhaps sometimes we should be ready to revisit how we normally do things and start afresh, as counsel and arbitrators. 

What was one change or development in arbitration today that you never would have thought was possible years ago?

In addition to the impressive growth in diversity, I would not have expected such a widespread use of online hearings and procedural meetings. This has been a pleasant development. Far more efficient than having to travel to meet up for 2 or 3 hours and better than using the telephone, where we tended to speak over each other and could not “read the room”.

Looking further ahead, what is one change or development that you would have previously thought unlikely, but which you now consider may happen soon (or at least in the future)?

The systematic use of AI-powered applications, not only to undertake first-level reviews of documents to provide sophisticated and meaningful analyses, but also to improve drafting, simplify and streamline different parts of a brief, or even prepare comprehensive witness statements from an audio recording of witness interviews (there are already prototypes of such applications). While this is in many ways a good development (including in terms of time and thus cost savings), I do worry about the impact it will have on junior lawyers and the training opportunities they may miss out on, including to become strong advocates. I also wonder if all firms will have the same opportunity to invest in those tools, at least initially and how this will impact small boutique firms.

Final question – what advice do you have for young arbitration practitioners?

I do not pretend to know it all, but to me there are three things that can really make a difference:

  • Work hard. There is no lift to the top, no way around working hard to succeed in this profession. It is a steep learning curve for anybody (that is true for the legal profession, not just in arbitration).
  • Have integrity. Integrity means doing the right thing when no one is watching (that is not from me but I really like this definition). This job is all about trust, the trust of your clients, the arbitral tribunal, your team, and your peers. Integrity means being ready to making the right choices to maintain that trust, e.g., telling a client that you are not the right lawyer to do their case, or not alone, telling parties that you do not have the time to serve as arbitrator for their case or taking responsibility when you are late on a decision, telling your peers that you may not be the best person to meaningfully contribute as an officer of such or such arbitration organisation. That is integrity. It sounds obvious and easy, in reality it is not always.
  • Cultivate your network. Keep in touch with your contemporaries and when doing so, be authentic. Treat other people well and not just because you think they are going to be useful. You do not get ahead in this job for very long if you do so at the expense of other people. And focus on the quality rather than the size in your network. This job is hard, and it helps tremendously to be surrounded with genuinely supportive people.