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Emmanuel Gaillard (1 January 1952 – 1 April 2021) was a prominent practicing attorney, a leading authority on international commercial arbitration, and a law professor. He founded the international arbitration practice of the international law firm Shearman & Sterling before launching Gaillard Banifatemi Shelbaya Disputes, a global law firm dedicated to international arbitration, in 2021. He frequently acted as an arbitrator in international commercial or investment disputes.
Gaillard studied law at Panthéon-Assas University (D.E.A. in Private Law, 1976; D.E.A. in Criminal Law, 1977) and completed his PhD in law there in 1981. He obtained the Agrégation des Facultés de Droit in 1982.[1] He was admitted to the Paris Bar in 1977.
His practice focused on international arbitration. He acted as counsel and arbitrator and was regularly ranked as a star performer in both categories.[2][3][4]
In 1987, he founded the international arbitration practice of Shearman & Sterling. He has been the firm’s Global Head of Disputes and Global International Arbitration Practice Group Leader for 33 years. In February 2021, along with Yas Banifatemi, Mohamed Shelbaya, Benjamin Siino, Ximena Herrera-Bernal, Maude Dubois, Coralie Darrigade and Daniel Reich, he launched Gaillard Banifatemi Shelbaya Disputes, a global law firm dedicated to the management of international disputes, with offices in London, New-York and Paris.[5]
Emmanuel Gaillard became Professor of Law in 1982, after obtaining the agrégation in private law. Since then, Professor Gaillard has taught at numerous universities: he was a professor of law at the Université Paris XII, he was a Visiting Professor at Harvard Law School (International Commercial Treaties, Comparative Private International Law) in 1984 and taught in the Geneva Master in International Dispute Settlement (MIDS), a program run by the University of Geneva and the Graduate Institute of International and Development Studies.
He co-founded and chaired the Arbitration Academy from 2010 to 2013, which was created to address the increasing demand for specialized teaching in international arbitration. The Academy provides advanced Summer Courses in Paris to students and young practitioners interested in international arbitration. The Curriculum is conceived by international arbitration academics and practitioners to cover all aspects of international arbitration, and the Courses are taught by the most renowned experts in the fields of international commercial arbitration and investment treaty arbitration.
In September 2012, Professor Gaillard was appointed Professor of Law[6] at Sciences Po Law School (SPLS), where he taught International Arbitration and Private International Law. In 2013, he was appointed On-site Program Director for New York University School of Law in Paris.[7]
Emmanuel Gaillard taught at both Yale and Harvard law schools, and the Graduate Institute of International and Development Studies-based Geneva Center for International Dispute Settlement.
In 2014, he was appointed Visiting Professor at Yale Law School where he taught International Commercial Arbitration together with Professor Michael Reisman and Dr. Yas Banifatemi.
From 2018 until his death in 2021, he had also been teaching International Investment Arbitration at Harvard Law School together with Dr. Banifatemi.
In 2019, Prof. Gaillard had been appointed to the Supreme Court of the People’s Republic of China’s International Experts Committee for a period of four years. Regarded as a prestigious appointment in China, the role included “providing advice and suggestions on the formulation of judicial interpretations and judicial policies of the Supreme People’s Court,” and, in so doing, contributing to the development of international arbitration in China.
His work experience contributes to elaborate legal theory and research on international arbitration law, especially on the subjects related to Investment Law and Arbitration (ICSID), Energy Charter Treaty (ECT) and Anti-Suits Injunctions. Many of his books and articles are cited as references on these topics (listed below).
He was also a proponent of the existence of an autonomous arbitral legal order, arising out of but distinct from the laws of national States.
He is often referred to as a primary author having written in all fields of international arbitration. He has commented on the ICSID case law since 1987 and published in 2004 the first book of commentary of ICSID case law.[8] One of his most well-known works is his seminal treatise on international arbitration, 'Fouchard Gaillard Goldman on International Commercial Arbitration',[9] published in 1999 and frequently referred to by practitioner academics and the national courts worldwide. In 2008, he published the first work on the theory of international arbitration, based on a course he taught in 2007 at The Hague Academy of International Law.[10] The essay, published in French and later in English under the title “Legal Theory of International Arbitration”, was greeted by the international arbitration community as a ground-breaking and landmark work, for both the well-versed and newcomers to international arbitration. It is also available in Arabic, Chinese, Spanish, Hungarian,[11] and Portuguese.
He has been referred to as an "intellectuel de droite" with a strong interest in sociology in the Revue du Crieur, a left-wing journal.[12]
He acted as a chairman, sole arbitrator or member of the tribunal in numerous international arbitration proceedings (under the rules of the ICSID, ICC, LCIA, AAA, IACAC, etc.) as well as in ad hoc arbitration proceedings (UNCITRAL).
He was a chairman in NAFTA proceedings under UNCITRAL Rules. He also acted as co-arbitrator in other investment treaty arbitrations.[13]
Gaillard acted as a counsel in numerous international arbitration proceedings (mainly oil & gas, construction, international investment, environment and mergers & acquisitions matters). In 2005, he drew the attention of the world's legal community when he began representing the majority shareholders in Yukos Oil Company against the Russian Federation, for compensation up to US$50billion, the largest international arbitration ever.[14] An award on jurisdiction was issued on November 30, 2009 in those proceedings, according to which the tribunal accepted that it has jurisdiction to hear the case pursuant to the provisions of the Energy Charter Treaty (ECT).[15][16] In three awards dated 18 July 2014, the Arbitral Tribunal constituted in accordance with Article 26 of the Energy Charter Treaty (ECT) and the UNCITRAL Arbitration Rules under the auspices of the Permanent Court of Arbitration (PCA) ordered Russia to pay over US$50 billion in compensation for the indirect expropriation of OAO Yukos Oil Company (Yukos).[17][18]
The main proceedings he worked on are the representation of the majority shareholders in Yukos Oil Company as Claimants in a series of three arbitrations against the Russian Federation, Wena Hotels against the Arab Republic of Egypt (ICSID Case No. ARB/98/4), The Slovak Republic as Respondent in an ICSID arbitration against Ceskoslovenska Obchodni Banka, A.S. (“CSOB”) (ICSID Case No. ARB/97/4), SGS Société Générale de Surveillance S.A. as Claimant in an ICSID arbitration against the Republic of the Philippines (ICSID Case No. ARB/02/6),[19] SAUR International against the Argentine Republic (ICSID Case No. ARB/04/4), SGS Société Générale de Surveillance S.A. as Claimant in an ICSID arbitration in The Hague and Paris against the Islamic Republic of Pakistan (ICSID Case No. ARB/01/13), Plama Consortium Limited as Claimant in an ICSID arbitration in Paris against the Republic of Bulgaria (ICSID Case No. ARB/03/24).
Gaillard died from aortic dissection on April 1 2021 at the age of 69 at a hospital in Paris.[20]
