Episode 94 – Rodolphe Ruffié (International Dispute Resolution)

This podcast audio has been transcribed by an automatic transcriber.

Fred Rocafort  00:07

Global law and global business go hand in hand, but never seem to keep pace with each other. The importance on the global stage of developing and developed nations waxes and wanes, while consumption and interconnectedness steadily increase all the while laws and regulations change incessantly requiring businesses to stay nimble. But how do we make sense of it all? Welcome to Global Law and Business hosted by Harris Sliwoski International Business attorneys. I’m Fred Rocafort.

 

Jonathan Bench  00:37

And I’m Jonathan Bench. Every week, we take a targeted look at legal and economic developments in locales around the world as we try to decipher global trends in law and business with the help of international experts. We cover continents, countries, regimes, governance, finance, legal developments, and whatever is trending on Twitter. We covered the important, the seemingly unimportant, the relatively simple and the complex.

 

Fred Rocafort  01:02

We hope you enjoyed today’s podcast, please connect with us on social media to comment and suggest future topics and guests. Today, we are delighted to be joined by Rodolphe Ruffie, an international attorney with Clifford Chance based in Paris, where he specializes in International Commercial Arbitration, investor state dispute settlement and public international law. His practice encompasses Europe, Asia, Pacific Africa, North America, pretty much the entire world. So right off, welcome to Harris Sliwoski’s Global Law and Business.

 

Rodolphe Ruffie  01:45

Thank you very much for the invitation. And thank you Jonathan.

 

Fred Rocafort  01:49

So I was just taking a look at your bio on the Clifford Chance webpage. Very impressive. And what I’d like to ask you to do is walk us through that. We can of course, recite what’s what’s on the website, but we find that it’s much more interesting when we have our guests tell us about themselves and and sort of give a little additional context. I do have one special request I was I was noticing, I noticed that you are a graduate of Nanterre University, I hope my French wasn’t too terrible there. But I have read a fair amount about the university. And but you’re the first alumnus of the University that I have met. So if you could insert somewhere in there, a little, you know, a couple of sentences about the university and why it’s famous.

 

Rodolphe Ruffie  02:51

Alright, Thanks, Fred. Well, I guess first off, I should specify that if we’re being precise, I belong both right now to the Paris and the Perth, Australia office of Clifford Chance. And I guess my colleagues in Australia would be quite sad if I were not to mention this, I actually belong to the Perth office, even though I’m French. But you know, COVID has many interesting ways to make you question yourself, including geographically, and I guess this is one of those moments when I am in sort of quantum states of superposition of offices. When it gets to my profile, I’m French, as I have mentioned, I’ve studied in France, as you’ve as you’ve just mentioned yourself at Malta, and I will get to this in a second. But I’m not qualified in France, I’m qualified in New York state, Washington state, Western Australia and New Zealand. And again, I guess it explains a little bit. The fact that I’m based in between friends in Australia at the moment when it gets to Nanterre, it’s my alma mater, as you guys say, in in the US. And I’m a bit surprised that you know Nanterre to be perfectly honest, because in France, for sure, it’s quite well known, but not so much on the world stage. You’ve mentioned the history and the aura of the university. And yes, it has a very interesting background because it was basically born on the ashes of the 1968 revolution in France, and basically, it was that time that also you experienced in the US where society was trained to break free from the bounds of, you know, custom and the old ways, in many respects and that university really incarnate that spirit of revolution. So in a way it is a very French university. And that made it a very interesting experience because on our key socialism is everywhere in that university. And I think it’s fun to better because traditionally in France, I would say that law schools tend to be more right wing than left wing, whereas in Ontario, because it has that very strong left identity. Well, the body of professors itself is quite diverse. Not just your classmates, but again, the professors that teach you, yes, they are very right wing professors. But you also have like, quasi communities, professors, which is very interesting. And the reputation that the university enjoys in in France, and it’s quite unique in in that respect, I suppose.

 

Jonathan Bench  05:58

A lot of your background, even for Fred and me to look at as international lawyers, you are the international lawyers’ international lawyer. So this is a lot of fun for us to talk to you. Because you’ve studied in so many places and work in so many places. So let’s talk about international law. For those who are in the business. We talk about public international law and private international law, and you have experienced in both, can you explain the difference to our audience?

 

Rodolphe Ruffie  06:22

Yes, of course on. So perhaps it’s a bit better to start off with public international law, even though it might be a bit counterintuitive. But when one mentions international law, usually, they’re referred to on the laws between states, right, you think UN using WTO. And that’s really public international law in in a way, but like international law is the international administrative law. Right? It means it is the law that governs the relations between states, as opposed to relations between people, right? You’ve got the Law of the Sea space law, international trade law, all of those bodies of law that exists within the framework of the UN or other international organizations, that’s public international law. And that also encompasses part of my practice, which is international investments right? Now, when he gets to private international law, it’s a bit murkier, to be frank, the definition is not the same across the board, in different jurisdictions. But let’s just say that private international law, or the conflicts of laws, rules that you encounter in different jurisdictions that regulate this time, the relations between people as opposed to the relations between countries. So to take a very simple example, if, say, you’ve got a contract between a French guy and a Japanese company, and nobody specifies what law should apply to the contract, depending on in which jurisdiction the contract was executed, you’re going to have conflict of law rules that will tell you okay, because that guy is French to companies, Japanese, but the contract was made in England, then you should apply the law of whatever country based on the laws of the place where the contract was made. These are called rules of private international law. But private international law in a looser sense, also means simply the laws, generally speaking, that apply in international contexts and international business context. And I guess that in a way, you could argue that international arbitration between companies is a component or segment of private international law, even though from purely academic perspective, it’s not very accurate. But as I said, it’s a bit murkier compared to public international law, which is well defined, usually, as compared to private international law.

 

Jonathan Bench  09:03

I think he described a perfect scenario, which is very common in our world today that you have, especially in international trade, you have a buyer, in one country, you have a seller in another country, they may be good exchange, there may be services. And often these parties never leave their home countries. And a lot of times, they don’t involve lawyers, and so they don’t hit on those important things like choice of law and and how to resolve their disputes. I find that a lot of our practice is educating clients on how to do business internationally, within that private international context, given all of the laws that can apply to the situation,

 

Rodolphe Ruffie  09:38

Right, I completely agree with what you just said Jonathan. And, you know, you mentioned clients, but it can even be colleagues or people around you because we tend and I think it’s true for many trades, not just our profession. You tend to forget how technical these things become and how specialized they are. So I guess at some point, those things are so obvious that are deeply ingrained in your brain. And if you don’t pause when you talk to neophytes or just people who are interested, but it’s not their job, you realize that you jump a bit the gun when you get to talk about those international things. And he’s always interesting, I find to take a step back, put yourself in the shoes of the teacher somehow. And and, you know, just give a little explanation as to what exactly you do. And what is is exactly that it is practice as an international lawyer, even though person doesn’t really mean anything concrete.

 

Fred Rocafort  10:38

So Rodolphe, you have experience in a very wide range of industries, everything from energy, to mining, to space, activities, even eSports, all of which are constantly evolving. But within this, I’m wondering if you can single out a couple of industries that you particularly enjoy working with?

 

Rodolphe Ruffie  11:02

Yes, of course, there are quite a few. For different reasons. There are some industries that deeply echo with personal interests, you have mentioned eSports, it’s one of them, you have mentioned space activities, it’s another category, that I personally enjoy a deep personal level, and it’s beyond the professional interest. So obviously, when you’re a gamer, or, you know, you gaze at the stars, and there is a way to connect those things to what you do for a living on an everyday basis. It doesn’t really feel like you’re working, it just feels like you’re trying to live your passion. And I guess as a lawyer, it’s not that easy, usually. Cuz, you know, I’m not one of those persons who always known they wanted to be a lawyer and have always fantasized about the law. To the contrary, I tend to tell people, it’s quite dull. You know, I mean, people know, lawyers through TV shows, and they imagine the courtroom and the objections flying left and right, whereas 90% of what we do, maybe 95% of what we do in these COVID days is just sitting behind a computer. And so eSports I enjoy discussing and working in relation to those, and trying to give it some life through the prism of international disputes, which is a real thing, because sports disputes already or mainly governed by arbitration, when it gets to international competitions, and you can replicate that model to eSports. And it’s something I’m actively working on with some colleagues. And in Europe, primarily, space activities, it’s a bit of a different stories in different pace. It’s not something that’s happening right now, or, or else I would say it is getting started right now, but it hasn’t really happened yet. When you look at SpaceX, Elon Musk, you know, Virgin Galactic, you understand, we’re about to get there. And private actors are going to be in space as much or even more than public actors. Government so far had de facto monopoly over space activities. And when we talk about space activities, space floor, even space disputes, as they are bound, unfortunately, to happen, because at the end of the day, we’re all humans. It is a bit of a self fulfilling prophecy, I guess, in a way and a bit of forward looking exercise, but just the same, it’s something that resonates with me at a personal level, because I’m one of those who really believe in science. And I believe that the future of mankind is up there in the stars. But if we’re staying on the ground right now, with something that I literally do every day, I guess the mining industry is is another area that I particularly enjoy, for very different reasons. I cannot say that right off the bat. I’m one of those guys who you know, love reading about those big fat mining companies drilling deep down to dig some gold or some iron ore. But when you get into the industry, and as far as I’m concerned, it was without by chance, you know, I didn’t really plan to become a mining lawyer but that’s what we do. Mainly in Australia with Clifford chance mining disputes. It’s a fascinating industry because you realize that everybody hates that industry as much as oil because yes, these are big, you know, like projects. They’re all dirty in many ways, because again, you’re drilling the soul, you know that they’re necessary. And they’re strategic. So nobody wants to do it. Nobody wants to resort to mining the ground and polluting the environment, that’s for sure. And I’m the first one to say, we have to be careful. But at the same time, you realize that look, right now we’re recording a podcast, I’m using the microphone, the computer, and so are you and phones, and all of this is full of rare earths, you know, and to get rare earths until we can dig it from asteroids up there, we still have to dig it from somewhere on Earth. And that’s where mining come into play. And the bigger question of natural resources that is very political. And I guess another reason I like mining industries is because it’s a very political industry, as much as it is a technical industry and the financial industry in many respects. So it’s just a little bit of a snapshot of the industries that I have an interest both personal and professional in.

 

Jonathan Bench  16:07

I’d love to talk a little bit more about the global mining industry if you can, I like to follow everything, I guess I don’t really have an area that I’m particularly passionate about, except for international affairs. So Africa has been on my radar a lot. Of course, the, you know, China’s dispute with Australia and how that affects Australian imports to China. Of course, you mentioned rare earths. And China has a heavy appetite for rare earths, as it is the manufacturing hub of the world for a lot of these high tech devices. So can you talk a little bit more generally about things that you’ve been paying attention to and reading, maybe some trends in this global mining industry?

 

Rodolphe Ruffie  16:47

Certainly, Jonathan, being based in Australia, at least until recently, and having a personal interest in China as well, having lived there, both in mainland China and in Taiwan. I find it fascinating what is happening geopolitically at the moment, you’ve got a defect to trade war between the US and China, and a trade war between Australia and China. It was not really meant to happen, I think, as in, oh, we’re going to war commercially speaking with China. But this is what’s happening at the moment, unfortunately. And what’s interesting is that, talking about the mining industry, you can see that for the past, say 10 years, really, China has been heavily investing in Australian miners conducting projects in Africa. Australian companies have a long standing expertise in the mining industry, and arguably together with the US and Canada, they have one of the most active mining industry in the world and one of the most sophisticated ones. But what they lacked was capital was money and China is no shortage of money, right. And as you’ve just mentioned, rares but ore generally speaking, is quite capital to Chinese economy because it is still growing at the moment, I’ll be a bit slower than what it used to. And and of course, China needs to feed its heavy industries with with iron ore, to an extent with gold and rarer. So what they have done over the past 10 years until recently is to invest a lot of money in those Australian companies that would get the or off the ground in Africa and to an extent Southeast Asia. So then China can either buy that ore, and ship it back directly to the mainland, right to feed. It’s heavy industries, and manufacturing industries. Except, as I’ve just mentioned, with those trade wars ongoing, it has become more and more difficult for China to source. Its or directly from Australia from those Australian companies. And now I guess it is trying to find other sources for chasing or including rares and iron ore, most particularly from all their places, and I guess Africa, again, is full of minerals. And more and more Chinese companies themselves have the expertise to go on those projects alone without the support of a Western company. And I guess this is what we’re seeing at the moment is is that sort of direct relationship between China and African countries that that was non existent, say before the turn of the millennium. So it is what’s happening right now and I’ve used It’s creating disputes because you’re disrupting a balance, right? For the past 10 years, there was a very established balance. Chinese companies purchase or fund Australian companies, those Australian companies develop projects in Africa. And then when the oil gets off the ground, boom, it is sold and shipped back to China. But now because China is basically bypassing their their western partners, creating new routes for trade of those minerals, and obviously, it generates conflicts, it generates disputes, and quite a bit of my work is actually arising from that reorganization of international supply of war.

 

Jonathan Bench  20:45

That’s really a great segue into the next thing I wanted to ask you. Because in my practice, in international trade, you have a lot of brokers involved, as in the middle of connecting buyers and sellers, and often you have chains of brokers. And I have got to assume that’s somewhat similar in the mining industry as well. So can you talk a little bit more about your work as a registered arbitrator, you’ve been involved with the international arbitration center of the Chinese Arbitration Association, that’s the CAAI, the Pacific International Arbitration Center PAIC? Can you talk about what you do as an arbitrator, and what kinds of disputes you see, and maybe some some interesting stories of things you’ve been involved in?

 

Rodolphe Ruffie  21:29

It’s a bit delicate to talk about, because most of these are confidential. But so far, what I’ve been doing mainly on the arbitrator side of things is being a tribunal secretary. So I actually started off arbitration, not on the console side, but on the arbitrator side. And I’ve participated in that capacity tribunal secretary in about, I’d say, 20 to 25 cases with different arbitrators, from whom I’ve learned quite a great deal. Um, and I guess it’s not so much about the profile of cases that I handled, that is the most interesting takeaway to get from is more the, the experience of the procedure itself. In in a different capacity as when you’re acting as counsel, because what you’re being taught on the job, really, when you act as counsel is that you have, it was not two scenarios, either you’re on the right side of the case, good fight is good law, and then you make compelling arguments, and then you have to reply to answer to nonsense arguments from the other side, or more convoluted interpretations of such law, or such contract, or you’re on the wrong side of the case, and then it’s your turn to come up with creative interpretations of whatever contract or law is at stake. Right. And, and that’s, that’s the deal, right? Even when you’re Delta role hand, you know, because your client is exactly on the right side of the case, whatever, you have to make it work. And in a way, I guess, you have to end up really believing what you say, if you want to convince whoever you’re talking to are at least be a good actor, at giving that impression. And when you work on the arbitrator side, what is expected from you is very different. You’re not asked to deliver a narrative, you’re not asked to create a story, you’re asked to look beyond the stories that are put to you by the parties, and try to make sense of an entire universe of facts and law. And be able to decide what what makes sense and what doesn’t make sense. It sounds I guess, not so complicated, because you’re thinking well, yes, obviously, you know, I mean, I’m just reading all that material and I have an opinion. Well, stories are compelling, right? And then you really have to be able to take a step back and look beyond the stories that are put to you. I personally, thoroughly enjoy being put in that position. Because I guess I still want to believe in Injustice and what one could call the truth behind the case or you know, a situation and that quest for you know, what is what is right? What is the pertinent outcome when applying the law. And the applicable law to a given fact pattern is, is quite challenging. It’s a different challenge to being counsel, but definitely something I personally enjoy. I wouldn’t be able to really give as I So the typical profile of cases that I’ve handled as tribunal secretary, they’ve been very, very different. But then again, to me, the most interesting part about working on that side of cases is the procedure, as opposed to, really the types of cases that you get to handle.

 

Fred Rocafort  25:22

WIth 20 to 25 cases under your belt, I’m assuming that at least a couple of those have been a little special, right? I mean, if it was only one or two, then chances are that they would have taken place probably in maybe more conventional settings. But I’m just wondering if if there if there are any experiences that that stand out, because of the venue where where the arbitration took place, or because of some of the the parties of course, we understand you, you cannot reveal the identity of the parties. But I’m just wondering if you have any, any war stories about your, your experiences in the arbitration world?

 

Rodolphe Ruffie  26:03

Yes. Well, yes, I guess so. I recall one of those cases, that was a bit odd, actually. I was traveling secretary. And it was an arbitration seated in in Stockholm, Sweden. And the institution that we were using was the SEC, the SOCOM Chamber of Commerce. And there was nothing really wrong about the case, per se, but it was a bit funny, because there were two Russian companies fighting over the ownership of a hotel in Russia. And it’s extremely common for Russian parties to use Stockholm, and London actually, as as both a seat and venue for the arbitrations. And I recall, he was quite peculiar, because the day of the hearing, usually in arbitration, and even in court, you know, you wear a nice suit, and all the parties or all dressed up the same pretty much at least when smells wearing again, suit, tie, etc. So, of course, the three arbitrators and myself Trillian Secretary showed up, fully suited the claimant just the same. And the lawyer of the respondent, for some reason was that young Russian guy dressed super casually, he was like wearing a t shirt, jeans, trainers, and everybody was looking at him as in what’s happening here. Are you are you like the party itself? Are you the lawyer, and I’m the lawyer. I mean, I’m representing the guy and I, it was a bit funny, because it goes to show a little bit that I’m, we assume a lot of things based on our own culture, and our own expectations of cases. But international arbitration is, is just that it is international. And sometimes you come across people who are not exactly, you know, made of the same customs and habit as you are. And you’re quick to assume that because it’s arbitration, everybody’s going to behave the same and do the same things. And no, no, not at all. And that’s what makes it a fascinating field. So I just found it quite, quite odd on the spot, and I wasn’t too sure what to say or do but then in the end, we look beyond the garment of course, and and there was just an interesting one that I found a bit funny, because it was unusual. Thinking about another war story of an interesting case. Yes, I guess it seemed, in the lead up to to the case itself, not not the hearing or anything, but especially when you deal with jurisdictions, developing countries in certain regions of the world, you realize that, again, the cultural shock is real. And the legal shock to I recall that one case when I was working in China, it was not it was not really an arbitration. In the beginning, it was about first identifying the laws as they should apply to a given situation and was conducting some research, you know, on the internet, using some databases of legislation, etc. And then, at some point, I recall that I was unable to figure out exactly what the details of the application of the law should be what the rules should be ahead of that case. We were trying to build up and I asked my boss then, what was the best way to get the information, what sort of textbook I should look into? He said, No, no, no, what if you don’t understand? Here, we don’t look in textbooks so much, what you have to do is pick up the phone and call the local administration and ask them in that situation, what are the applicable rules that you should apply to the case? And it’s the only real way to know for certain what what are the specific regulations that apply to that scenario, and I was a bit shocked, because I was thinking, well, in front of that would never really happen that way. If anything, if I were to call the administration, they would tell me something, and immediately, I would try to look up online, whether what they say is accurate or not. Whereas there, it was a practice at least 10 years ago, you have to dial the local, you know, bureau or whatever it is you’re trying to figure out and ask them oh, well hold on. I mean, when it gets to whatever license or this or that exactly what’s the procedure? And I guess it’s a very different way of practicing law. And that’s why I have, what I have enjoyed so much in working in different jurisdictions is the fact that yes, we’re international lawyers doing international business disputes, but we don’t practice law quite the same way across the board. And you learn quite a lot from, you know, just the way people work in different places, as lawyers, the profile of lawyers is not the same. Because they don’t go through the same exams, they don’t go through the same training. And the profile of a typical lawyer in China is not the same as in France is not the same as in the US. And not the same as in Australia. So I don’t know if these qualify really as war stories, but I guess those stories really left a mark in me because it’s, it’s in those moments, I really realized the benefit of working in in very different places around the world.

 

Fred Rocafort  32:06

I mean, first of all, I think these these do qualify as horror stories. But you bring up a very fascinating, but also accurate point, which is that the world of lawyers is a really diverse one. And I I’d venture to say that, in other professions, you might have less of a divergence, right? I mean, if you are a surgeon, right, no matter where you are, you’re ultimately going to be cutting people open and dealing with human bodies, which you know, are, are the same, no matter where you are, if you’re an engineer, you have to make sure your buildings don’t fall down. But when it comes to lawyers, there is quite a bit of difference. And of course, that just reflects the cultural expectations of what a what a lawyer will do in each each jurisdiction and then certainly I’ve I have during my time in China as I certainly had my fair share of these, these moments of reflection. I’d like to, to follow this line of of discussion and talk a little bit about Australia. You mentioned at the beginning of the of our conversation that that you are a member of both the Paris and Perth offices not sure whether you are at this very moment but evidently you are at least partly based in Australia. So I’d like to hear more about the the Australian lawyer if you will, and the Australian legal system obviously from from the perspective of common law attorneys, like Jonathan and me there’s obviously some some similarities between the systems every once in a while, depending on the kind of work what we’re doing, especially the more international matters that occasionally we’ll run across Australian case law right? But I’d like to hear a little bit more get especially given your perspective as something of an outsider right you have that ability to perhaps look at things with a with a slight you know, with a more critical eye and I don’t mean that in a in a negative way simply someone who can who can look at it through through different different eyes. And I’m also while you’re at it, I’d like to hear a little bit more about Perth and Western Australia it’s it’s a part of the world that that fascinates me. I’ve never been there I never been to Australia period. But but certainly when you look at the map, right there’s there’s just something fascinating about the fact that there’s this large city obviously, you know, the kind of had that has a Clifford chance office, but it is pretty isolated. So I’d love to hear more about what the place is like, what do people do? What’s the weather like? Frankly? I mean, I have no idea. So anything you can you can share with us about about Perth. I’d love to hear your thoughts on Australia.

 

Rodolphe Ruffie  35:20

Wow, I could use an entire evening to tell you about the wonders of Western Australia, particularly. I guess, very quickly. When it gets to Australia, generally speaking as a country, you need to realize that it’s roughly the same size geographically, as the US if you exclude Alaska, Hawaii and overseas territories. So when you look at the US look at Australia, it’s roughly the same size, except there are 25 million people in Australia, not close to 300 million, right. So it’s not densely populated at all. When it gets to Western Australia, where I live, it’s a bit crazy, because you need to imagine that you’re cutting the US in half. You look at the western half of the US and there is only one major city. And that city is called Perth, it has about 2 million people that spreads on a rather large area, it’s quite spread out. It’s not very concentrated in terms of population. 2 million people in is the only city in the western half of the country, a country that is the size of the US so that I think that puts things a bit into perspective. Terms of isolation, and the closest city to Perth is not even a city in Australia, right? You would say maybe Adelaide, South South Australia? No, no, the closest city to Perth is Bali. In Indonesia, it’s about two hours by plane. And that, again puts things into perspective to close a city to Perth is not in Australia, right? It’s in Indonesia. For that reason, Perth has quite a unique identity, it has always been a bit secluded, they know that they live in their own little corner of Australia, which itself is in its own little corner of the world, right, because the country itself is quite isolated. And, and yet, I wouldn’t say that when I first landed there. Almost three years ago, I felt too much of a big cultural shock. I’m in terms of climate, I have never been to California, but I know quite a few people who did and who will also been to Paris obviously. And then I guess the climate is roughly similar. And I’m sorry, I’m going to use Celsius degrees here. But the coldest it gets like in the dead of winter, if you can call it that in Perth is 15 degrees, which is not too bad. It’s quite humid during winter, it rains a lot. And then the rest of the year it peaks at 40 something degrees, which is super hot, maybe it should be 100 Fahrenheit, something very dry. The lifestyle is very close to what I have experienced in the US in the you know I’ve lived in Seattle in Washington DC. They’re very different places to Perth, but in a way it’s you know, big new country, very modern cities on if you’re after the Parisian nightlife. You’re gonna be miserable there and just the same if you expect your nice European quaint city centre with the medieval castles, the museum etc. Just to say you’re not going to be very happy living in Perth. If you’re after the nature, the beautiful landscapes, nice beaches, that is the place where you want to live. Again, it’s a densely populated so by my standard, it makes it quite attractive. Lots of space, very nice people. And I guess when talking about the people, we’re delving a little bit more into culturally what it means to live in Australia in I guess it’s a place that is halfway between the US and the UK because again, it’s a big new country, right, just like the US compared to those old European countries, but they have actively sought to maintain that bond with the UK. So in that respect, they are still very European in their mindset and certainly at least half of the population is not quite ready to to let go of monarchy, even though it’s purely symbolic at this stage, the Queen of England who is also the queen of Australia doesn’t have much power when it gets to, you know, Legal Affairs and politics, but they’re still attached to that European identity. And of course, this is totally different to the US that has built itself against the English parliament, obviously. So that’s, that’s a major difference. And then, you know, transition. I think that’s a good segue into what it is, as a jurisdiction, it is a common law jurisdiction. And I would say that overall, it doesn’t drift too far from law as it is practiced in the UK, they still actively use UK case law in in Australian courts. It’s precedent based system, again, practicing courts very much the same way to practice in, in the UK, the practice arbitration with that sort of very heavy common law coloring that you also find in London, so just the same. But when you look at, you know, their constitution, constitutional law, it is exactly what it is in the US, frankly, it’s a federal state, with states retaining a lot of power, but you’ve got that federal level that still governs the country. They have the same approach their constitution, and its interpretation and civil, civil rights and public liberties as you do in the US. And that’s why when I re qualified as an Australian lawyer, I really relied heavily on what I knew of remembered of us constitutional law, and of use case, UK private law when I was still studying it at the university. So it’s, you need to imagine sort of halfway between again, English law and US law, US law and gets to constitutional matters. And UK lawful for the rest, I suppose.

 

Jonathan Bench  42:09

Speaking of countries, I’m curious, when you’re looking at a dispute between nations or a private party and a nation, how is that different tells the way the arbitration is done, or the overall dispute handled? When it’s when there’s a sovereign nation involved on one side, or both sides of the table?

 

Rodolphe Ruffie  42:28

Alright, that’s a very interesting question. Let’s say that when, and let me be clear today, 95% of my practice is investment arbitration, meaning a company suing a country. Long story short, that’s what I mainly do. At the moment, I have done lots of commercial arbitration, which is company versus company. So the dynamics or are a bit different, but not that different. And they should not be that different, because I would say, the main difference is the difference that naturally, you give to the respondent state. And, you know, state to state this fuse or, or different kind, but I think the most interesting setting is when you have a person be the legal or physical person swing state, in the traditional b2b dispute, you know, I mean, you got a company go to your company, and then the arbitrator and that’s it. There is no particular difference given to the respondent because they’re just another company. But when it gets to investor state disputes that there is a decorum almost in in the proceedings that you don’t really find in traditional b2b disputes. Again, I guess, naturally, everybody wants to give a bit more leeway to a state because it’s a sovereign. It’s a sovereign nation, they have inherent powers that transcend the mere contractual relationship that they may have created with the claimant as a company. And the conduct of the entire proceedings, I would say does not fundamentally differ that much, because at the end of the day, arbitration is arbitration. It is the same sort of core procedure, inherently, but then again, in the approach that institutions and arbitrators have, they tend to give to pay more respecting and pay more difference to stay because again, you’re dealing with a sovereign, right, you’re not dealing with a regular person. And you understand that their needs as a country and even as as a party in arbitration are a bit different. Then they are under very high public scrutiny. because they are accountable, at least in principle to their own people. So the question of confidentiality, for instance, becomes very crucial. There is the tension between, you know, the need for public information versus the secrecy of Assam state of affairs, which is, which is normal. And so I guess that’s where the main difference lies is the public scrutiny, the confidentiality, and the fact that, again, you’re not dealing with it with a random company, but you’re dealing with sovereign and all the decorum that comes along with it. I know, it’s a bit abstract. But in fairness, again, I would want to reiterate that the difference is not that massive, during the arbitration interest, it tends to be heavier, procedures a bit more complex, because state has many departments. And sometimes it’s a bit hard even for, you know, the opposing counsel to get instructions from their own client, because sometimes there are some distinctions within the state as to what the next step in the proceedings should be. And we represent both general investors and states. So we see the two sides of the coin. And, and clearly, having a state as a client is not quite the same as having a company beat a large one, as a client in an arbitration. So that’s, that’s pretty much my account of the main difference between regular b2b disputes and investor state disputes.

 

Jonathan Bench  46:34

That’s very interesting. Thank you. Now, I want to take one more step back from this and look at it from a, you’re giving advice to international transactional attorneys and businesses. So for businesses who like to look over their lawyer’s shoulder who don’t even use a lawyer in their international transactions, what are some of the things that they can look to avoid? Probably things that they’re missing in their contract? Right, when they’re doing international, they think they may have a dispute, at some point in the life of their business relationship. They’re in one country, they’re their counterparties in another country, what are some of the things they should look to avoid or to include in those legal documents as their as their you know, I mean, these often happen in wheat the late night WeChat, messages, WhatsApp, I mean, I’m sure you’ve seen a lot of that had to dig through, you know, voluminous records that people are there all screenshots of conversations, and who said what, and a lot of times there is no contract, but even if there is a contract, there may be some deficiencies. So what are some suggestions you have to make it better so they can avoid getting into dispute or at least making the dispute process easier for the arbitrator or for the Fact Finder at the end of the day?

 

Rodolphe Ruffie  47:43

Right? You have mentioned that the midnight WhatsApp messages, and it’s exactly the first thing I wanted to mention is that I’m when you conclude the contract, you know, an agreement with a business partner. You don’t really want to think about divorce, right? I mean, when you’re getting married, and you’re happy that you’re getting married, you don’t have to think about oh, and what could happen further down the road, if one day, something wrong. Between us arises, often what we hear is like, oh, you dispute lawyers, you know, you read on the negative? And you really want us to think about all those awful, terrible things that could happen to us? And the answer is, is yes. And yes, I want you to think about them, because you’re going to be so miserable. If you don’t think about them. Now, compared to further down the line when something happens. I’m not saying it’s gonna happen. But again, we’re all humans, we all have diverging interests. And at some point, it could be that there’s a divergence of interest between the parties in a contract, and all of a sudden, the relationship changes, and one of the parties start defaulting on what they’re supposed to do, etc. So the first message I want to send to people, concluding agreements is we’re not here to create problems, we’re here to let you know that there may be problems in the future. And if you want to avoid further issues to the main problem, you’re gonna have, be it legal or commercial, you might as well think a bit ahead of the game, right? And it’s not very complicated. So all you really have to do in international context, and I’m talking here company to company is to have solid dispute resolution provisions. And oftentimes, what you’re going to want to have in your contract is a nice little arbitration agreement, right? Because it’s going to transcend national courts is going to transcend all the conflict of laws issues. I was mentioning at the beginning of our conversation, that make procedure a nightmare. You don’t want to spend months or years, thousands and thousands of dollars on just resolving those very stupid procedural issues as to which governing law should apply. Where should we take the dispute and then all of a sudden, you’ve got three sets of proceedings in three different countries, because nobody agrees as to where exactly proceedings should be brought. So arbitration is really a way to solve all those issues at once. Because you decide you’re not going to go to any national court, you’re going to go to that arbitration institution, you’re going to apply that law to the merits of the case. And there you go. So it doesn’t cost much in terms of money and time to craft customized and I insist on that customized dispute resolution provisions. It’s a bit tedious, because most of the time, transactional lawyers working on those contracts don’t have the faintest clue as to what is a proper adapted dispute resolution clause. But it’s something you really need to consider because again, it’s going to cost you maybe a couple grand more in legal advice, barely, you know, at the contract stage at the project stage, but it’s going to save you again, dozens of 1000s, maybe hundreds of 1000s of fees in lawyers and time in three or four years down the road, when unfortunately, a dispute arises with your best friend, your partner or business partner, and then you’ll be happy that you know, you didn’t spend just a couple of minutes at midnight on that close, but maybe more like couple of hours during the day discussing through with your lawyer. So I guess the main message is don’t you know, I know, when you’re in the honeymoon phase, you don’t want to think about divorce, but being the voice of reason. I really urge companies and and transactional lawyers to give a quick call to their dispute colleagues or dispute counsel to to just you know, have a quick look at what dispute resolution provisions we have it there to save you some trouble in the future.

 

Fred Rocafort  52:03

Well, this has been a fascinating conversation really covered a lot of ground, I have really really enjoyed it, and we could probably continue to to go for for a lot longer. We’re just gonna have to have you back at some point so that we can continue to tease out some of these topics. Before we let you go though, we’d like to ask you for any recommendations you might have for our listeners and your hosts.

 

Rodolphe Ruffie  52:28

Yes, of course, Fred. Perhaps I would like to recommend a video game. Again, I guess is the gamer here talking eSports etc. It’s not an esport. It’s a saga of video games called Final Fantasy. It’s a Japanese series of role playing games that have been going on for already more than two decades. And recently, the company the game editor has released the remake of one of their most iconic video game Final Fantasy seven. The story is compelling. It it is really accessible to both those who played the game back in the 90s. And the new players today, it appeals to the audience because you can really bind with the characters. Again, the story is very complex. It’s like It’s like playing a movie, in a way it’s really that experience. You get accepted. It’s a 30 hour long movie, and you’re actively involved in it. It’s not so much about the gaming it’s more about again, the story, the music is sublime. And it’s interesting video games because people tend to look still today to them as toys, just like what the cinema was in the early 1900s But these days, it’s really art and I can only recommend anyone who is interested in in futuristic stories compelling character development at giving a try: PS 4, PS 5 Final Fantasy VII remake.

 

Fred Rocafort  54:16

Well thank you for that. And Jonathan, any video games for us this week?

 

Jonathan Bench  54:20

You know I am a big fan of gaming as well but my my recommendation is actually a reflection of my real life where I haven’t been able to game as much as I used to in my in my 20s, my teens and 20s I guess. But Rodolphe, your mentioned that Final Fantasy and video games generally have come evolved into a real art form is absolutely true. My 14 year old son has decided he wants to be a video game score, right? So he wants to write music for video games. And so I’ve encouraged that because he’s very musical. Also very good at math and science. And so I said okay, you study electrical engineering or programming, and keep studying your music. And then you will get to the right places where you’ll be able to work on teams that that write scores for popular video games. And it certainly right. Some I know that the best composers now are composing for movies, but many of them are also composing for video games as well. So it’s an interesting niche to be able to get into. So my recommendation for this week is a an article that was in the Deseret News called “Meet Bethany and Seth Mandel, the DC power couple out to popularize ‘Big Family.'” And with that kind of clickbait title, I had to see what it what it was talking about, not polygamy related. This is a husband and wife who are Jewish, who are living in the DC area, they have five children, and they have 200,000 Twitter followers, and they share their lives and what it’s like to raise, I think they I think they had these five children within a 10 year span. So it’s very funny to me as a father of five children, to and we had ours in 12 years. So five children 12 years, to really get a feel for other people’s chaos. Right. And, and not only that, but they kind of revel in this chaos of the ongoing churn of having five children and of course, even our discussion today, as we’ve been talking about how, you know, certain resources are scarce, but then we look at the overall population lay and find that a lot of it’s the distribution of resources and the distribution of knowledge and how to properly use the resources and, you know, good agricultural practices and things like that. So there are certainly people in the world who think the world is already overpopulated. And that may be true to an extent, if we’re looking at specific geographical areas. But, you know, I’m of the school of thought that the world itself, we have a lot of space. And frankly, we’re better off having good people who are trying to do good things. And so I’m, I’m the father, who is raising a large family of what I hope will be good, contributing people of society. And so it’s interesting to see other people not not have the same faith as I am just getting their perspective on big families versus those countries that aren’t even in replacement rates, in terms of the children that are being born in their countries. So that’s my recommendation for the week, we’ll have the link in the blog copy. Fred, what do you have for us today?

 

Fred Rocafort  57:19

My recommendation this week, I actually thought about it and almost brought it up during the interview, because there was something that Rodolphe mentioned about our work and how we really spent a lot of time just just in front of computers and typing. And in some ways, it’s there’s often not a very clear connection to the bigger picture of what we’re trying to accomplish. And along those lines, I’d like to recommend an article that was published in Notre Dame magazine, this is the magazine that I get as an alumnus. This is an article called, “What Are We Doing?” and it’s written by Jonathan Malesic, I see this isn’t the latest issue of the of the magazine which is available online at magazine.nd.edu. And it provides an analysis really, of the changing nature of work, and how many workers these days especially workers in office settings are just really disconnected from, from the results, if you will, of what they do and then there’s a lot of focus on just how much time we spend typing, and how this has become a commonality across many professions, regardless of what you are doing, and this really hit home. One of the these last couple of weeks, I’ve had a couple of medical appointments. And it’s struck me that the last few times that I’ve visited a doctor here in the US, there’s always been a computer literally, behind between me and the practitioner. You know, they bring their they wheel in their little table with the laptop, and you know, sure there’s probably good reasons for that. But, it certainly struck me as being a very, very true a very accurate observation and for us as attorneys, right, we do spend so much time typing, and when, you know, as kids, right, we when we thought of what lawyers did, we thought of attorneys who would go to court and you know, over time, we began to learn that there was there was more to it. You know, not everyone is a litigator but but still it is interesting to reflect on how so much if what we’re doing at a practical level resembles what but people are doing across the economy and anyway this article looks into looks into that and addresses some of the associated issues in terms of dissatisfaction on the part of workers who just don’t don’t see that that connection between their toil and a practical results. So again, what are we doing by Jonathan Malesic in Notre Dame magazine. And with that result, I’d like to thank you once again for joining us on the podcast really enjoyed the conversation.

 

Rodolphe Ruffie  1:00:44

Many thanks again for the intro, Jason, you’re welcome in Perth anytime, whenever we all can return. Right. Thank you again, to you both and thanks, Harris Sliwoski as well for the invitation. It was very nice to reconnect with the firm after such a long time. So again, thank you everyone.

 

Jonathan Bench  1:01:08

Global Law and Business is a production of Harris Sliwoski. The team includes Madeline Williams and Michaela Moore. The music is composed by Stephen Schmidt. If you like the show, subscribe on iTunes and leave us a review there. We’d like to hear what you think of the show and it helps new listeners find us. Tune in next week for another episode. We’ll see you then.

Transcribed by https://otter.ai