Q&A With Rivkin Law’s Oleg Rivkin
Originally published in Law360 (April 2016)
Oleg Rivkin, a principal at Rivkin Law Group PLLC in New York, concentrates his practice on international litigation and arbitration involving corporate, commercial and other business disputes. His work covers a broad range, including multijurisdictional transactions, unfair competition, misappropriation of trade secrets and other intellectual property, licensing, securities fraud, surety bonds, banking, lender liability, antitrust, civil RICO, and asset forfeiture.
Rivkin’s arbitration work involves international commercial arbitrations before various tribunals, including the American Arbitration Association, the International Centre for Dispute Resolution, the International Chamber of Commerce, FINRA, the Chamber of Commerce and Industry of Russia, and the Santiago Arbitration and Mediation Center.
As a result of the multijurisdictional nature of his practice, Rivkin’s cases often involve related litigations and arbitrations simultaneously pending in non-U.S. jurisdictions, as well as issues of foreign law. He has used the procedures for gathering evidence outside the U.S. under foreign conventions, enforced foreign letters rogatory in the U.S., and enforced (and opposed enforcement of) foreign judgments in U.S. courts.
Rivkin also represents a number of museums, artists and collectors in litigations and other matters. He has served as vice chair of the Art & Cultural Heritage Law Committee of the ABA Section of International Law.
Q: What attracted you to international arbitration work?
A: The first international arbitration I worked on involved representation of a French client in a dispute with a U.S. company in the Chamber of Commerce and Industry of the USSR. Halfway through the arbitration, the wall came down and the tribunal was renamed the Chamber of Commerce and Industry of Russia. For a young New York associate striving to become a trial lawyer this was an extraordinary experience, and I was hooked instantly.
International arbitration is a field rich with cultural and legal diversity. It is quite typical in large multiparty arbitrations to have lawyers, parties, witnesses and arbitrators come from all over the globe. Your legal team may consist of lawyers from New York and France; your opponent’s from the U.K. and Brazil, and another party’s from Spain and Switzerland. Your three-member panel of arbitrators may come from three different continents.
International arbitration rules aim to strike a balance between American-style litigation with its emphasis on full disclosure and face-to-face confrontation of witnesses, and the civil law system (with its many permutations), which stresses confidentiality, written presentation of evidence, and where cross-examination of witnesses by lawyers does not, for the most part, exist. Each arbitration proceeding is in a sense an amalgam of the two legal traditions.
Your opposing, and even co-counsel, having been trained in their own legal systems, will have their own methods and styles in the way they argue, present their evidence, examine witnesses, and interact with the arbitrators. As litigators, we adjust to our opponents and judges all the time. The adjustments required of you when your opponents and arbitrators are foreigners with backgrounds in legal systems and traditions vastly different from yours are much more extensive and often unpredictable. It is this legal multiculturalism that first attracted me to international arbitration, and still does.
Q: What are two trends you see that are affecting the practice of international arbitration?
A: On a macro level, there is the general growth of international arbitration as a means of resolving multijurisdictional disputes. New filings in major arbitration organizations have been increasing steadily each year. New filings with the International Centre for Dispute Resolution (ICRD), for example, have doubled over the last 10 years. The size of disputes is likewise on the rise. A recent $50 billion award to former majority shareholders in Russian oil company Yukos set a record for the amount awarded in private arbitration. A large and increasing portion of international arbitration disputes involve natural resources, such as mining and energy. This is expected to continue. On the other hand, financial markets and intellectual property disputes have not grown and remain a small portion of international arbitration.
In terms of forum-selection, international arbitration is becoming more transaction-driven, rather than domicile-driven. Historical preferences that certain nationalities have had for certain venues is becoming less and less prevalent. Forum-selection clauses in agreements now run the full gamut, with the result that international arbitration is becoming truly global.
On a micro level, the trend has been towards more transparency and efficiency. Traditionally, international arbitration has always been a confidential and closed process. This is changing. The International Chamber of Commerce (ICC) recently modified its rules to provide more public information regarding the arbitrators sitting in its matters, including their nationality and whether they were appointed by the ICC or the parties. Other organizations are expected to follow suit. Similarly, the ICDR has strengthened its rules to ensure impartiality and independence of arbitrators, an issue that has been amplified by a recent decision of France’s highest court invalidating an arbitration award due to an arbitrator’s non-disclosure of a potential conflict. Arbitration organizations have also taken steps to ensure timely issuance of awards, recognizing that the efficiency of the process is one of the principal advantages of international arbitration over litigation.
Q: What is the most challenging case you’ve worked on and why?
A: If I had to pick one it would be the representation of a Russian software development company against its former employees who defected en mass and set up their own operation, taking with them the company’s IP and its customers. This was during the first dot-com boom when claims of this type were only beginning to be brought.
The challenging part was that most of the events took place in Russia, while the arbitration, which also included a claim against the company’s U.S. customer involved in the scheme, took place in the U.S. This greatly affected the gathering of evidence that was needed to prosecute the claims.
Discovery in international arbitration is extremely limited. By the standards of American litigation it is hardly discovery at all. Only very limited documents can as a rule be obtained and depositions are not permitted. In a case, particularly one involving fraudulent conduct, where the evidence you need is largely in another country (a country, moreover, where high secrecy is the business norm), this presented a challenge.
However, with the assistance of investigators both in Russia and the U.S., we were able to obtain the needed information and ultimately secured an award in the client’s favor.
Q: What advice would you give to an attorney considering a career in international arbitration?
A: Here are five suggestions:
- Become a good U.S. trial lawyer. There is no better training ground for honing one’s advocacy skills than an American courtroom. Become a master cross-examiner. As in litigation, this is where arbitrations are often won or lost. International arbitration alone will not give you the necessary training for dealing with hostile witnesses. Hours and hours of depositions and courtroom cross-examinations will.
- Don’t limit your practice to international arbitration. It is a growing field but, compared to litigation, it is still too small to accommodate a large number of lawyers who do nothing but arbitrate. And besides, once your trial skills are honed, you need to remain sharp. To me, an ideal career is half litigation and half international arbitration.
- Know a foreign language. If you know one, improve it. If you don’t, learn one. It will be useful more often than you think.
- Become well acquainted with legal practices and traditions of other countries. Arguing your case to a New York judge is different from arguing it to a Swiss law professor. Substantively, your arguments may be the same, but the manner in which you make them will (should) be different.
- Understand where the other lawyers in the hearing room come from. When your opposing counsel begins his opening statement by citing principles of Roman law as codified by Justinian in 534 A.D., your immediate reaction may be to object on the grounds of extreme irrelevance. That would be a mistake, as this line of argument is perfectly natural and appropriate for a lawyer trained in a civil law tradition.
Q: Outside of your firm, name an attorney who has impressed you and tell us why.
A: A skill for which there is no substitute is credibility. It is that sense of trust and respect that a lawyer inspires in a trier of fact, be it a judge, a jury or an arbitrator. It is not even entirely a skill. Much of it comes from your innate character, the person you are. And no lawyer I’ve ever known had greater credibility in a courtroom than my former partner, and the lawyer who mentored and trained me as a young associate, John R. Horan of Fox Horan & Camerini.
