Christophe Bondy - International Trade and Investment Law, International Arbitration

For many law students, a career in international law is a mystifying and seemingly inaccessible pursuit.  Unlike in the domestic law sphere, there are typically no career fairs, information sessions or regular rounds of interviews for international law positions.  This leaves students with little idea how to transform an interest in international law into a career or even what types of careers are available and where.  To help fill this gap, University of Toronto Law offers an ongoing series profiling distinguished alumni across a range of careers in international law.[1]

In this profile, Spence Colburn (JD, 2020) interviews Christophe Bondy (JD, 1997), a partner at Steptoe & Johnson LLP in London, about his path from directed research in public international law and a summer internship with UNICEF during law school, to commercial arbitration and litigation on Bay Street, international commercial arbitration in Paris, international trade and investment law at the Trade Law Bureau in Ottawa and, most recently, back to private practice in London.  Bondy’s over twenty years of experience spans investor-state arbitration, trade policy and negotiations, international arbitration and public international law.  He has been lead counsel to Canada in multiple NAFTA Chapter Eleven arbitrations and senior counsel to Canada in the negotiation of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), served as private sector counsel to multiple sovereigns and private claimants, and also taught at the Center for Transnational Legal Studies in London, of which University of Toronto is a founding partner. 

Colburn talks with Bondy in the summer of 2020 about how his career developed and what advice he might have for law students interested in working in international law, whether in government or private practice.

How would you describe your work on a day-to-day basis?

            The core of my practice is international investment arbitration. I am the main counsel in international investment arbitrations, either on behalf of states in a respondent position or on behalf of claimants. I also sit as an arbitrator in investor-state arbitrations. I have, alongside this, regularly given opinions on public international law issues and I have been providing training in capacity building to states, both in the conduct of investor-state arbitration and on the conduct of negotiations of international investment and trade agreements.

Can you describe the career trajectory that brought you to your current practice?

I started in commercial arbitration and commercial litigation at Torys LLP in Toronto, where I summered, articled and began my career. A few years after joining Torys, I went to Shearman & Sterling LLP in Paris and was doing international commercial arbitration there between 2000 and 2006. In 2007, I moved to the Trade Law Bureau in Ottawa. I spent the next eight years at the Trade Law Bureau focused pretty much exclusively on investor-state arbitration. I returned to the private sector about five years ago now, and my private practice has remained strongly focused on investor-state arbitration.

Were you interested in international law while at law school?

I have always been interested in “international things” since I was a kid. I spent a year in France in high school. After my undergraduate degree, I went to Cambridge and did a master’s in international relations and then did another graduate study in Paris all before law school. So, when I began my law degree, I was already thinking that I wanted to do something international with my career. I did my thesis in 3L on a public international law subject and when I summered at Torys, I took advantage of a program they offered where summer students could spend half the summer at an international institution of their choice. I worked on the rights of children (international human rights) at UNICEF in New York for half the summer.

How much international work were you able to do starting out on Bay Street?

            I was lucky; as an articling student at Torys I was able to be involved in a major cross-border arbitration, working with partners like Sheila Block, and some cross-border transactions.

What made you decide to leave Canada and go “international”?

One of the things that precipitated my departure to Paris in 2000 was my involvement at Torys in a cross-border insurance matter that required me to make submissions before a Southeast Asian court. The classic party to argue before a Southeast Asian court is an English barrister. So, I went to London to meet with an English barrister to prepare for my submissions before the court. While I was there, I found myself looking around and asking myself, “Why am I in Toronto?” I had already done a lot of international stuff, like my studies in both England and Paris. Within a couple of months after that, I had set up a series of job interviews in London and Paris with a mix of English magic circle firms[2], US-based global law firms and local European firms that do a lot of international work. I returned to Canada with three offers.

But then after working in Paris for a few years you returned to Canada?

Partly it was motivated by family reasons, but I was also very interested in gaining more investor-state experience at the Trade Law Bureau. I’m really glad I came back, actually. Up until that point, I’d always felt like a kind of “international Canadian,” you know, because I spent so much time abroad and almost preferred being out of the country. Moving back from Paris to Ottawa, I was really wondering whether I would be happy. But I ended up loving the experience and feeling a much stronger connection to Canada.

I still own a house in Ottawa even though I’ve left Canada again. I think it’s important to remember where you’re from. It informs everything you do. I knew [acclaimed Canadian author] Mavis Gallant when I lived in Paris. She had been living in Paris for over 50 years when I met her, and she said, “You know, I am no less Canadian now than when I left.”

What have been some highlights of your career thus far?

I would definitely say the cases that I worked on at the Trade Law Bureau have been highlights. Cases like Chemtura Corporation v Government of Canada or Eli Lilly and Company v Government of Canada, which were both proceedings conducted under Chapter 11 of NAFTA (North American Free Trade Agreement). Those cases had very interesting and difficult issues and were so intellectually stimulating as a result.

I also worked on the negotiation of the CETA (Comprehensive Economic and Trade Agreement) for about five years while at the Bureau. The experience of putting a treaty together and seeing the treaty negotiation process was a really fascinating and privileged one. Most people in practice don’t get the opportunity to work on that kind of thing.

You know, I’m very proud of the years I spent in public service. The thing is, if you want a career in public international law, you maybe have four main options. You can work for the government, you can work for an international organization, you can work for an NGO, or you can work within a law firm that has an international practice. There are benefits and challenges that inhere in each of those contexts, but arguably some of the best public international law work takes place within the legal departments of the foreign affairs ministries of states [in public service].

You mentioned negotiating the CETA while at the Trade Law Bureau. What does that look like in practical terms, representing a state in treaty negotiations?

Lawyers at the Trade Law Bureau of Canada have three roles: (1) they represent Canada in disputes related to international trade and investment; (2) they advise the government on its compliance with international trade and investment obligations; and (3) they act as counsel in international trade and investment treaty negotiations. It’s very difficult to get into the work of treaty negotiation if you’re not in government—most countries, Canada included, do not delegate away frontline work negotiating treaties to private sector lawyers.

The negotiation of a free trade agreement, like the CETA, typically is composed of something like 25 different chapters. So, from a practical point of view, you are assigned to a range of specific chapters of the treaty—cross-border trade, investment, public procurement, etc. You also attend the negotiations alongside your policy counterpart, who is the negotiator, and your role as a lawyer is to understand the policy position of the state you’re representing to ensure it is being reflected in the text, as well as to understand the historical context both for Canada and for the other state with respect to this treaty and other similar past treaties. Because you also represent Canada in treaty disputes, you come to the table armed with a great deal of practical knowledge about how the treaty should be shaped to avoid future problems. After the treaty has been completed, you also work with parliamentary lawyers to ensure that the treaty is reflected in any necessary domestic laws or regulations.

It’s different from the role of being counsel in a case because you’re actually creating the legal document. It’s also different from the role of an international arbitrator because it gives you a different insight into the language of treaties. I always say that arbitrators are trapped in the tragic world of the Vienna Convention on the Law of Treaties—they are stuck following where the final language leads. When you negotiate a treaty, you understand how language is the result of compromise and how such slight differences in the final language really matter.

What ultimately drew you to international arbitration?

Arbitration is a more fluid practice than litigation, and it doesn’t involve the same level of discovery. In domestic litigation, you can spend literally years in documentary or oral discovery. I also found the nature of the matters more interesting in my international arbitral practice because of the cross-cultural context. Over the course of a few matters, you might have a Japanese party suing a German party, then an Italian party suing a Libyan party, followed by a French party suing a Congolese party. I intrinsically found that diversity interesting.

Also, I found the fact that international arbitration is ultimately rooted in a public international law framework more interesting. For example, procedure is more of an emerging best practice at the international level, as opposed to a well-settled framework. And there are still areas of international trade law where there isn’t a lot of precedent or you can’t get access to the precedent because international commercial matters are often confidential. So, the whole practice of international arbitration tends to be a bit more freewheeling, which I like.

Can you explain the difference between working in international trade law and international investment law?

They’re sister disciplines, but they are distinct. International investment law is based upon international investment treaties and its key characteristic is that it is investor-state proceedings, not state-state. It’s quite interesting in that way, because it’s about any potential state action that affects the conduct of an investment. It involves a lot of treaty interpretation and a range of public international law norms.

International trade law involves state-state disputes. The procedure and the standards and types of evidence are different, as well. With international trade law, you will be putting forth arguments and evidence that are much more economics-analysis driven, typically. Then there is the side of international trade law practice which tends to involve anti-dumping and countervailing duty investigations of the private sector and issues relating to subsidies.

If someone is interested in international trade and investment law, but not necessarily in commercial arbitration, is it realistic to try to build a practice that focuses exclusively on investor-state arbitration?

It’s not impossible, but it is more challenging. I would say investor-state arbitration is a more constrained practice area than commercial arbitration—for every one international investment case, there are probably about ten commercial cases. It makes sense—it’s a big deal to sue a state. So, that just means you need to think about focusing your career in a slightly more pointed way—aiming to work for the Trade Law Bureau is good, for instance, because in Canada there is probably no better place to obtain very concentrated and high-level experience in international investment arbitration. If you’re going into private practice to do that kind of work, there are probably going to be some sharp elbows from a lot of other people who also want those few cases.

What would you say to a U of T student who is interested in getting into international arbitration?

A U of T grad has several advantages coming to the table to join an international arbitration practice. You’ve got an excellent, well-recognized legal education. You can draft in English. If you’ve got a few years of experience under your belt, that helps a lot too. That said, if you want to go straight into international arbitration without first getting domestic experience, probably the easiest thing would be to go to work for one of the large global law firms, like White & Case LLP in New York, that has a well-established international arbitration practice and is open to U of T grads right out of the starting gate.

One thing I always say to young lawyers is just to focus on relationships. Think about reaching out to people in the field you are interested in and creating a community. You never know where those relationships are going to pop up and help you later in your career.

If a student does start domestically, like you did, how long should they be looking to stay there before making the switch to international law?

In your first few years of practice, you’re still fairly fluid—you haven’t made such a huge investment in a firm, or wherever you are. The further along you get into your career, the more difficult it is to make a change in practice. Although, at the end of the day, it’s about being open to opportunities that present themselves and seeing how you feel. You may not know what type of law you have a passion for until you try a particularly interesting case in intellectual property, or something. It’s important not to be too rigid in your thinking, either.

What are some challenges that a U of T grad might face in entering a career in international arbitration or international law more broadly?

There is a lot more competition to get into international arbitration practices in London, Paris, New York, Washington, etc. Also, in the London and Paris firms, especially, you might need to work on a short-term contractual basis for a couple of years before getting a real associate position. Finally, going abroad from Canada, you can have visa issues. That means you will likely need to be sponsored by a firm to be allowed to work in the foreign jurisdiction.

It’s a challenge sometimes to take advantage of the international opportunities that present themselves, too. I have had to be very flexible and move to different countries at several points in my career, and that brings joy but also stress. I’m lucky in that I have had a very stable personal relationship for many years, so I have had that familial support and continuity. But there is no doubt that seeking out an international career can bring personal challenges if, for instance, your spouse doesn’t have a job that permits them to move with you.

Is it necessary to speak multiple languages?

            It certainly helps. Although, most of the drafting in international arbitration remains in English. Even during all of the years that I spent working in Paris, I would say 95 percent of the writing that I did was in English. But it definitely made my life infinitely more pleasant to be able to deal with my colleagues in French.

During my three-month break after articling, I went to Quito, Ecuador and spent about two months in one-on-one Spanish instruction. I was living with a Spanish family and I did not know a word of Spanish when I arrived and my host family couldn’t speak a word of English or French. So, I really just had to plunge in. Several years later, I ended up getting a job because I could read documents and understand testimony in Spanish. Even a couple of years ago, I got a very significant case and I was appointed to a tribunal because of having Spanish.

It is also a real advantage to speak languages that are less “classic.” It helps to speak a very regional language like Polish or Ukrainian or Arabic. It’s a big advantage because there will be international disputes involving those countries—if you waltz in and say, “I’ve got a U of T law degree. I can write backwards and forwards in English, and, oh by the way, I can also speak Croatian,” you will be ushered in.

So, the short answer is yes, it helps.

Is it necessary to have multiple bar admissions? I noticed you aren’t admitted to the English bar.

Right. I’m considered a “registered foreign solicitor” here. I think it kind of depends. When I moved to Paris, the rules were that you needed to become a member of the Paris bar if you had been practicing there for at least five years. So, I became a member of the Paris bar. Here in London, it’s not absolutely necessary for me to be called as an English barrister. That said, there are probably some opportunities that would have come to me had I taken the trouble of becoming called in London and, frankly, it’s something that I’m considering doing. Generally, I would say if you have a qualification from Ontario or New York that will probably be fine for the purpose of international arbitration.

What does the future of investor-state arbitration hold from your point of view?

There are a few challenges we’re grappling with. One is the application of old legal frameworks, including investment treaties, to new technologies. For instance, how do you apply an investment treaty model to investment in an app? Another one is the anti-globalization movement. There are a lot of attacks on the content of investment treaties and on what they impose on states. In my opinion, investment treaties ultimately seek to encourage the rule of law within a country, at a very basic level. One of the primary things that investors are looking for when they go into a country is the rule of law. And if a state isn’t willing to sign up for that as a kind of concept, then it’s probably going to lose out in the competition for international investment, which is key to development. But a lot of commentators in academia and from NGOs don’t feel that way.

In terms of growth, this practice follows the areas of growth of the economy. So, there’s going to be a lot more claims relating to Chinese investment, for example. And if African growth continues, we will see more cases relating to Africa. But my sense right now is that there are a sustained number of cases. There is something like 3500 investor-state treaties around the world. COVID or no COVID, business is done very internationally these days. I don’t see this going away as a practice area and I think it will continue to expand.

Thank you for taking the time to speak with U of T Law.