Arbitral Insights: Recent Episodes
Reed Smith
Arbitral Insights brings you informative and insightful commentary on current issues in international arbitration and the changing world of conflict resolution. The podcast series offers trends, developments, challenges and topics of interest from Reed Smith disputes lawyers who handle arbitrations around the world.
Host Gautam Bhattacharyya welcomes Jasbir Dhillon KC of Brick Court Chambers for this episode of Spotlight on… Jasbir reflects on swapping a childhood dream of becoming a footballer for a career in law, drawn not by any personal connections to the profession but by the eloquent barristers of a television courtroom drama. The conversation covers the mentors who have inspired him, his commitment to encouraging young people to pursue a career at the Bar, how he built his practice, and some of his recent significant cases. Jasbir also shares what his Sikh and Punjabi heritage means to him and how it has shaped his openness and sensitivity to other cultures in understanding disputes with an international dimension.
Host Gautam Bhattacharyya welcomes Niranjan Venkatesan KC of One Essex Court for this episode of Spotlight on… Niranjan discusses what drew him to the Commercial Bar in London and the mentors who have enriched his career along the way, reflecting on how heritage shapes who we are and what we can all learn from professional athletes.
Reed Smith lawyers Trisha Mitra-Veber and Pratheeba Vachiraveel join host and international arbitration partner, Gautam Bhattacharyya for the second of four episodes in our series celebrating SAHM 2026. Our speakers reflect on their paths to the law, the mentors who have guided them, uplifting the next generation of women in the profession, and what heritage means to them.
Host Gautam Bhattacharyya welcomes barrister Chinmayi Sharma of Three Verulam Buildings for this episode of Spotlight on… Chinmayi reflects on her path into the legal profession, the mentors and career highlights that have shaped her journey, and what South Asian heritage means to her personally. The conversation also explores the evolution of India’s legal market and its potential as an arbitration hub.
Andrew Tetley and Clément Fouchard sit down with Claudia Salomon, President of the ICC International Court of Arbitration, for the insider's perspective on the new ICC Arbitration Rules. Cutting through the noise, they explore what has changed, why, and what practitioners need to know now.
Daniel Avila is joined by Gerard Meijer (Arbitration Partner at Linklaters) and Marieke Witkamp (Independent Arbitrator at Arbitra International) to discuss the key attributes that make the Netherlands a leading arbitration hub.
The conversation delves into the country's arbitration-friendly judiciary, its role as host to the Permanent Court of Arbitration, and the English-language Netherlands Commercial Court. Highlighting its practical, business-focused approach to procedure, the discussion also explores the Netherlands' reputation as an "attachment paradise," its efficient enforcement of domestic awards, and its high confirmation rates for both domestic and international awards. Additionally, the speakers examine the Netherlands' early adoption of innovations like emergency arbitration, consolidation, and e-arbitration.
Nishant Choudhary of DFDL Myanmar joins Joyce Fong to unpack Myanmar’s arbitration regime, from the legal framework to enforcement. The discussion explores how Myanmar’s arbitration laws interface with international norms, then turns to the strategic considerations that drive the choice of seat for Myanmar-related disputes. The conversation also assesses the Myanmar courts’ approach to arbitration and enforcement, as well as observable trends in Myanmar-related arbitrations.
Host Joyce Fong and Noppadon (Ton) Treephetchara of DFDL Bangkok discuss Thailand’s arbitration framework, highlighting its Model Law basis, cost-effectiveness, and supportive judiciary. They then compare Thailand with regional alternatives, review institutional preferences (THAC and TAI), and examine local court support. The episode outlines enforcement procedures, timelines, and practical tips, and concludes with trends and THAC’s modernization efforts.
This episode is recorded in Spanish.
Francisco Rodriguez and Gilberto Guerrero-Rocca explore how Latin American states have developed sophisticated, long-term strategies to defend against treaty-based claims. The episode examines the unique challenges these sovereign “repeat players” face, such as budget constraints, political pressures, and transparency issues. The discussion highlights the evolving tactics and contradictions in how these states approach international arbitration.
International arbitration partner Lucy Winnington-Ingram explores the increasingly significant role of tribunal secretaries in international arbitration. Lucy unpacks the legal and procedural challenges that can arise when tribunal secretaries move beyond their traditional administrative functions and become involved in substantive aspects of decision-making. She then offers practical guidance on how to avoid common pitfalls that could jeopardize the integrity of arbitral proceedings.
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Transcript:
Intro: Welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Lucy: Welcome to another episode of Arbitral Insights. I'm Lucy Winnington-Ingram. I'm a partner in Reed Smith's London office in our international arbitration team. I'm going to be running through some very high-level takeaways, discussing challenges based on the misuse of tribunal secretaries in international arbitration. So I think the starting point when thinking about this issue is recognizing that arbitration is a method of dispute resolution, which is premised on the consent of the parties. And the persons determining the dispute, i.e. the tribunal, are typically party appointed. And that's really a central tenet of international arbitration. So it's against that background that challenges to arbitral awards based on the alleged misuse of tribunal secretaries have increased. And this issue really goes to the heart of the legitimacy and enforceability of arbitration as a dispute resolution mechanism. And it's one that's generated significant academic debate, challenges to awards and institutional reform in recent years. So the arbitrator's mandate is strictly personal, and that means that their decision-making function cannot be delegated. However, as arbitrations have become more complex and document-heavy, the increased use of tribunal secretaries, sometimes called administrative secretaries or assistants, has become widespread, and their intended role is to support the tribunal, primarily with administrative and organizational tasks. But increasingly, there's a growing concern that tribunal secretaries may overstep their intended role, moving from administrative support into substantive decision-making. And this has given rise to the so-called fourth arbitrator problem. And that's a term that was coined as early as 2002 to describe the fear that a tribunal secretary might, in effect, become an unappointed and unauthorized decision-maker in the arbitration. And very understandably, there are concerns this will damage the legitimacy of the arbitral process. So the use and potential misuse of tribunal secretaries has therefore come under increasing scrutiny, both in academic commentary and in the challenges to arbitration awards that we're seeing, and also in terms of challenges to arbitrators themselves. So one of the first known challenges to an award, based at least in part on the actions of a tribunal secretary, was a Paris Court of Appeal case from 1990. And in that case, the appellant, Honeywell, sought to set aside an ICC award, alleging that the tribunal secretary had interfered during the hearing. Now, the Paris Court of Appeal dismissed the challenge, noting that the appointment of a secretary was permitted and that Honeywell had not demonstrated how the secretary would have interfered. So this case sets a sort of early precedent that mere involvement of a secretary without evidence of improper influence would not suffice to overturn an award. The next case we can look at then is Sonatrach and Statoil. And this came over two decades later in 2014. Now, in that case, the parties had expressly agreed that the tribunal secretary's role would be limited to administrative tasks and the Tribunal Secretary would have no right to participate in the decision-making process. Sonatrach later argued that the Secretary had exceeded this remit by preparing substantive notes for the Tribunal and therefore challenged the ICC award under Section 68 of the Arbitration Act. When considering this, the English High Court found no improper delegation emphasizing that the arbitrators had not abdicated their decision-making function as the Secretary's notes had only formed part of the Tribunal's deliberations. In that sense, then, the Tribunal Secretary himself had had no substantive decision-making role. A more fully articulated challenge came not long after this in 2015, and this is perhaps one of the better known challenges, and it arose in the Yukos set-aside proceedings in The Hague. So there, Russia argued that the tribunal's assistant had effectively drafted large portions of the award, and they pointed to the time records in the fee notes that showed that the tribunal secretary's hours were between 40 to 70 percent higher than those of any tribunal member. And Russia actually went so far as to submit a report from a linguistics expert, which concluded that it was extremely likely that the tribunal secretary had written significant sections of the award himself. So when it came to setting aside the awards, these were actually set aside on alternative grounds. And therefore, the relevant district court did not address Russia's complaints relating to the involvement of the tribunal secretary in the proceedings. However, in 2020, the Court of Appeal in The Hague overturned the district court decision and in doing so, it addressed Russia's arguments in relation to the Tribunal Secretary. And there, the Court of Appeal ultimately held that unless the parties had agreed otherwise, a tribunal may use a secretary to assist with drafting parts of an arbitral award as it sees fit, provided that it's the arbitrators themselves who assume responsibility for the final decision. So in effect the finding was that the mere drafting of parts of an award by an Arbitral Secretary did not automatically amount to a violation of the Tribunal's mandate. So whilst the Court of Appeal conceded that the Tribunal had failed to fully inform the parties of the nature and extent of the Tribunal Secretary's work, this did not amount to a major procedural violation. So turning then to the most recent challenge to an arbitral award on the alleged misuse of a tribunal secretary, this was brought before the Belgian Supreme Court in 2023 in Emek and WTE and the European Commission. And there, the applicants alleged that the tribunal secretary had drafted non-factual sections of a partial award. However, the Belgian Supreme Court affirmed that a secretary may draft an award completely or in part as long as the tribunal reviews and validates the work. So the Supreme Court felt that this understanding of the tribunal's mandate aligned with the ICC's guidance, which I'm going to talk about in a little bit more detail later, which explicitly allows for secretaries to prepare notes and memoranda, which could conceivably then form part of any final award. So I think one point to note is that challenges relating to the use of tribunal secretaries are not limited to challenges to arbitral awards. A number of challenges have also been brought in relation to arbitrators themselves. So, for example, in P&Q, a 2017 English High Court case, the claimant there applied for the removal of all three arbitrators appointed in an LCIA arbitration, alleging improper delegation of tasks to the Tribunal Secretary. And there, the claimant relied on time records, again, as in Yukos, and also an email from the chairman seeking the secretary's views on a procedural issue. Now, in that case, the court dismissed the application, again distinguishing between permissible support and impermissible delegation, reaffirming that the core adjudicative function must remain with the arbitrators. The judge did, however, note that whilst receiving input from a secretary does not automatically preclude independent decision-making, best practice is to avoid involving secretaries in anything that could be seen as expressing a view on the substance of the dispute. So taking all of this together then, these cases all reveal a number of key themes. First, the strictly personal nature of an arbitrator's mandate to determine the dispute. So it's clear that an arbitrator's decision-making function is strictly personal and cannot be delegated. And this is closely related to the central feature of arbitration, a party's ability to select its arbitrators. Parties choose their arbitrators for their judgment and expertise, and this is central to the legitimacy of the process. Secondly, in a number of cases, issues arise regarding the proper role of a tribunal secretary in the arbitral process. So there's a spectrum of tasks that secretaries may perform, ranging from purely administrative, so things like organizing hearings, managing documents, etc., to more substantive, conducting research, drafting procedural orders, even drafting sections of what may become the final award. Now, the further a secretary's tasks move towards analysis and decision-making, the greater the risk of challenge. The question then is what tasks and responsibilities can be safely delegated to a tribunal secretary for reasons of procedural efficiency before their role risks trespassing on that of the arbitrators. Third and finally, many challenges arise from a lack of clarity or agreement about the secretary's role. And this links back to what I was just talking about, about what tasks and responsibilities can be delegated. So early and explicit agreement on the scope of the secretary's task is crucial to avoid disputes later on. And parties are increasingly looking to do this in the procedural orders that are agreed at the outset of the case. In response to these concerns, arbitral institutions have developed increasingly detailed rules and guidelines. So many have introduced rules that a tribunal secretary can only be appointed on agreement of the party. So we see this in the LCIA rules and the SIAC rules. But certain institutions also require consultation with the parties on the secretary's tasks, such as the SEC. And the LCIA now has perhaps the most robust framework, as its rules expressly prohibit delegation of the tribunal's decision-making function and require express party consent for the Secretary's tasks. And the LCIA's Notes for Arbitrators sets out a list of permissible tasks, including administrative support, attending hearings, preparing drafts of procedural orders and awards, but it's very clear that all of these tasks have to be done under the supervision of the tribunal. What we see that is common across all the major arbitral rules is this expressed prohibition on the delegation of the tribunal's decision-making function. So what's the sort of best practice takeaways from this in terms of what can parties and tribunals do to mitigate the risks? Well, first, early engagement with the tribunal on the secretary's role. The best safeguard is to address the issue at the outset. The party should discuss and agree the scope of the secretary's work, ideally in writing, and ensure that everyone is clear on what tasks are permissible. And as I said, often this takes the form of the first procedural order. Next, transparency. So the tribunal should be very transparent about the secretary's involvement, keeping the parties informed and seeking consent wherever required, or wherever there's a deviation from what the parties have previously agreed. Next, supervision. So all work done by the secretary should be under the close supervision of the tribunal, with the arbitrators personally reviewing and approving any substantive work. And finally, the provision of institutional guidance. So where necessary, arbitral institutions should continue to provide further guidance on the role of tribunal secretaries in order to more clearly define their roles and reduce the risk of challenges based on the scope of work of the tribunal secretary. Thanks very much for listening. If you have any questions around this topic, please do not hesitate to reach out to me. And we look forward to you tuning in to another episode of Arbitral Insights.
Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
All rights reserved.
Transcript is auto-generated.
Joyce Fong welcomes Afriyan Rachmad (Partner, Nusantara DFDL Partnership) to discuss Indonesia’s dispute resolution landscape. They cover interim court measures, enforcement timelines and procedures, seat selection strategy and practical tips for recognizing foreign awards. The episode also touches on the broader legal environment and recent trends shaping Indonesia-related arbitrations.
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Transcript:
Intro: Welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Joyce: Welcome to the latest episode of our Arbitral Insights podcast series. This is the third in a series of podcasts which I'm doing with DFDL, exploring arbitration across various jurisdictions in South and Southeast Asia. For this episode, I'm delighted to host Afriyan Rachmad, who will share insights from Indonesia. Afriyan is a partner at Nusantara DFDL partnership, an Indonesian law firm, and a DFDL collaborating firm. He is a projects and infrastructure specialist with particular expertise in natural resources and infrastructure projects. Afriyan’s dispute resolution practice includes litigation and arbitration. Selamat siang, Afriyan. Thank you for joining me today on this podcast.
Afriyan: Hi Joyce, thank you for inviting me to this podcast.
Joyce: To kick us off, perhaps you could give us an overview of the dispute resolution landscape in Indonesia. Tell us about the laws which form the legal framework for arbitration in Indonesia. Are they based on the UNCITRAL model law? And does the same law apply to both domestic and foreign arbitration?
Afriyan: Okay, the legal framework for arbitration in Indonesia is under law No. 30 of 1999 concerning arbitration and alternative dispute resolution. While they are not based on the UNCITRAL Model Law, although some provisions are adopting it. Yes, the arbitration law applies for domestic and foreign arbitration, although there are different sections for domestic and foreign arbitration.
Joyce: With these laws in place, would you say that arbitration is commonly used to resolve disputes in Indonesia?
Afriyan: In Indonesia, arbitration is more towards the complex disputes due to the high arbitration fee involved for conducting arbitration proceedings. The arbitration fee is based on percentage of claim value filed by the claimant. From a range of zero point six percent for claim above two trillion rupiah, approximately USD hundred twenty five million, to ten percent for claim less than one billion rupiah approximately USD 62,500. This is according to the BANI Domestic Arbitration Forum. On the other hand, court fees are in the range of USD 100 to 300 depending on the number of parties. Court litigation is however slower as it could take around three years to obtain a final and binding decision from district court to supreme court compared to arbitral award that could be rendered in approximately six months.
Joyce: So from what you've just said, Afriyan, arbitration appears to be faster but more expensive than court litigation. This is not at all surprising and is consistent with global trends. Given the significant cost difference, when do parties tend to choose to arbitrate their disputes?
Afriyan: Generally speaking, parties arbitrate more complicated disputes. For example, in construction disputes where they prefer an arbitrator who has expertise in the subject matter. Court judges just tend to have legal rather than technical knowledge. Parties also tend to choose arbitration where the dispute is between a foreign party and a local party or local company. I've seen in the past that parties tend to select the dispute resolution mechanism which is best suited for their dispute. regardless of the dispute resolution clause in their contract. I have seen cases where parties agree to arbitrate the dispute only after the dispute arises. I have also seen cases where parties agree to court litigation even though the contract has an arbitration clause. This tends to be accommodate parties' circumstances. For example, if one party causes an arbitration fee, Although the arbitration fee will be borne equally by both claimant and defendant, however, in practice, the claimant shall pay full in advance before the arbitration proceeding could be started. This is particularly for cases handled by BANI.
Joyce: So picking up on a point which you've just raised, Afryan, foreign parties often prefer arbitration of a litigation when contracting with a local party. There tends to be concerns with litigating on the local party's home turf, where the foreign party may be unfamiliar with the local court procedure and may also perceive the local party to have an upper hand. I think this is especially the case if the local party is well connected or linked to the government. Based on your experience, when parties agree to arbitrate, do parties tend to choose Indonesian or foreign arbitral seats?
Afriyan: Well, this perception I think can be used by parties. But if the balance of power is equal during the contract negotiation, parties tend to choose international arbitration. for example, seated in Singapore or Paris with SIAC or ICC administrating. The main reason probably international arbitration proceeding is more comfortable for foreign parties compared to domestic arbitration institution. If the local Indonesian party is likely to be the defaulting party under the contract, an Indonesian seat with BANI administrating is popular. Jakarta is often selected as the seat, unless there is another seat which has closer connection to the dispute. For example, the parties may choose Bali or Kalimantan as a seat where the dispute relates to a construction project there. There is a famous case between PT Pertamina and PT Lirik Petroleum, in which the case was handled by BANI. This case was brought appealed to Supreme Court when was requested for enforcement. And Supreme Court at that time made consideration that the case is deemed as foreign arbitral award due to the race element of foreign in the contract, although the parties are Indonesian and it was handled by BANI, particularly BANI Mampang. In end of 2024, a lecturer filed a case to concessional court to review definition of foreign arbitral award under the arbitration law and constitutional court give a decision that a case considered as foreign arbitration proceeding or domestic arbitration proceeding based on territorial principle in which if the case was handled by foreign arbitration institution and seated not within the Indonesian territory then it will be considered as foreign arbitration proceeding. I will also add that there are two different institutions called BANI in Indonesia. It was started in 2016 and for around six years there are duality in BANI, which is BANI Mampang and BANI Sovereign. Both parties were arguing in civil court, state administrative court, and commercial court for trademark violation. In the recent years, BANI Mampang tends to be more popular than the BANI Sovereign, since currently we cannot find BANI Sovereign website or legal domicile address of this BANI Sovereign. Due to this invariability and taking consideration of the amount of the case that is being handled, we will suggest for any dispute that would like to choose local arbitration or domestic arbitration institution to choose BANI Mampang.
Joyce: Thank you for the helpful insight on the two BANIs. It's certainly important to nominate the right BANI if parties intend to select BANIs as an arbitral institution. Otherwise, there is being satellite litigation over which BANI was the parties intended. I also find it quite interesting what you said about all arbitrations in Indonesia being deemed to be domestic, regardless of whether there's a foreign element and which institution administers the arbitration. On that note, is ad hoc arbitration common in Indonesia?
Afriyan: Although ad hoc arbitration is permitted in Indonesia, but it is not common to the best of my experience, Joyce.
Joyce: Okay, okay. Just going back then to the choice of Indonesia as a seat, what are the advantages to parties for seating and arbitration in Indonesia?
Afriyan: According to the arbitration law, it is easier to enforce a domestic award in Indonesia due to the arbitral award in Bahasa Indonesia. The arbitral award can go directly to the local district court to register the award for enforcement. Note that this must be done within 30 days from the date of the award. If it is missed, then the domestic arbitral award could not be requested for enforcement to the district court. The winning party could wait until the counterparty voluntarily do the domestic arbitral award or to file a new case at the district court and the domestic arbitral award will be the primary evidence. For foreign awards, the arbitral award must first go to the Central Jakarta District Court to request for the issuance of execution of the award. Before bringing that word to the local district court who has jurisdiction to conduct execution over the losing party. Note that arbitration law requires few documents to be filed together with the original arbitral award issued by the foreign arbitration institution. There is, however, no time limit for filing this enforcement of foreign arbitral award to the Central Jakarta District Court compared to the domestic arbitral award that I have mentioned previously.
Joyce: My takeaway from what you've just said, Afriyan, is that domestic awards, in other words, awards which are issued in Indonesia-centered arbitrations, lead to quicker and fast reinforcement in Indonesia. What are some possible hurdles to registering a domestic award in the local district court?
Afriyan: So previously is about time when they doing examination of the request of this enforcement of arbitral award. Before 2023, there is unclear regulation for the district court to examine of this enforcement. But Supreme Court has issued a regulation in 2023 to give guidelines for the judges at the district court who handle enforcement of the domestic arbitral award and also for foreign arbitral award. And now we need to see how the district court shall accommodate this issue of time.
Joyce: So just to be clear, Afriyan, following the regulation in 2023, how long will it take for domestic awards to be enforced in the local district courts, at least in theory?
Afriyan: In theory there is no time so that's why in practice it can take weeks, months, sometimes. But from the Supreme Court regulation in 2023, it gives guideline for the judges to examine the request for enforcement of arbitral award which within 14 calendar days. So they will need to issue whether they can accept for the enforcement, whether they approve the enforcement, or they reject this request for enforcement of arbitral award.
Joyce: I see. Let's now turn to foreign awards. You mentioned earlier that a party must bring the foreign award to the Central Jakarta District Court so that the award can be enforced. Can the decision of the Central Jakarta District Court be appealed?
Afriyan: Yes, a party can appeal if the Central Jakarta District Court has denied enforcement of the foreign award, in which the appeal shall need to be filed to Supreme Court as the highest judicial institution in Indonesia. If the Central Jakarta District Court has granted enforcement, no further legal remedies could be taken based on the arbitration law. Apart from the above, parties can file annulment over the arbitral award, either foreign or domestic, at the Central Jakarta District Court or to the local district court in the case of domestic arbitral award. With recent, among others, letters of documents submitted in the hearing, which are admitted to be forged or are declared to be forgeries after the award has been rendered. B. Documents are found after the award has been rendered which are decisive in nature and were deliberately concealed by the opposing party. Or at last, an award is made based on fraud committed by one of the parties to the dispute. This is according to Article 70 of the arbitration law.
Joyce: That's really helpful to know, Afriyan. Another factor which determines a seat's attractiveness is the local court's willingness to uphold and support the arbitration process. Would you describe the Indonesian courts as being generally pro-arbitration?
Afriyan: Yes, provided the contract is not against public policy and complies with Indonesian law. I have three examples. Firstly, gambling contracts are illegal in Indonesia. An award enforcing a gambling contract will not be enforced in Indonesia. Other example that a contract, despite their governing laws, which has Indonesian party who entered to the contract, shall need to make Bahasa Indonesia available. This requirement is regulated under law number 24 of 2009. Finally, disputes arising from joint venture agreements may face enforcement obstacles, particularly if the merits of the case involves foreign ownership structures that are inconsistent, with the Indonesian foreign investment regulation. If the contract is compliant, the courts do not tend to treat domestic and foreign awards differently.
Joyce: That's interesting to hear. For me, this really emphasizes the importance of doing proper due diligence before entering into the contract to avoid problems down the line. How about orders in support of arbitration, such as injunctions or asset preservation orders? Can the Indonesian courts issue such orders?
Afriyan: Yes, it is straightforward to enforce domestic interim orders issued by the tribunal in support of arbitration, such as confiscation orders. However, foreign orders can be difficult to de-register since the Supreme Court regulation only address enforcement of asset preservation order or security attachment as ordered by arbitral tribunals in Indonesia. It is more difficult to obtain interim orders from the court as the order needs to be attached to a main case. In principle, Indonesian civil procedure does not allow for stand-alone interim relief. Such injunction or asset preservation orders, unless there is an ongoing main case before the court.
Joyce: That's interesting to know. Now, turning back to enforcement, and we touched on this briefly earlier, what grounds do parties tend to use to challenge recognition and enforcement of awards in Indonesia?
Afriyan: As I explained earlier, no need to recognize and enforce domestic awards. They can be enforced directly at the local district court. Only foreign awards need to be recognized and enforced. Common arguments raised are the awards against Indonesian laws and regulations, public policy, and annulment reason as regulated under Article 70 of the arbitration law. Like I mentioned previously, like fake documents, forgery kind of thing.
Joyce: I see. So bearing in mind what you've just said during this podcast session, what should parties and tribunals do to maximize their chances of a successful enforcement in Indonesia?
Afriyan: I think we need to see from the contracting states or from the early states to ensure that the contract complies with Indonesian law. This is where local council advice is helpful, even if the governing law is not Indonesian law. Under the Indonesian Civil Code, there are four important elements for a contract to be valid. First, there must be a consent of the parties who are bound thereby. Second there must be capacity to enter into an obligation third there must be a specific subject matter and last there must be a permitted cause or in accordance with the Indonesian laws and regulation example of point this is that the node in particular the requirement for availability of Indonesian language under law number 24 of 2009 for contract the SSH and Indonesian party In practice, the contract will be made in bilingual language and the parties may choose English as the governing language. After the award is issued, ensure that all the relevant formalities and documents are comply with for enforcement. For example, the court requires the original wedding awards, which can be tight timing for domestic awards which have to be enforced within 30 days. Also, if the word is not in Bahasa, a sworn translation must be prepared.
Joyce: It's all very helpful tips. Thank you. One final question as we wrap up. Have you observed any trends in Indonesia-related arbitrations which our listeners should be aware of?
Afriyan: Well, since COVID-19 in 2020, virtual hearings have been on the rise. While convenient, these raise all sorts of issues. For example, confidentiality issues. Unlike in-person hearings, parties need to be mindful of their surroundings and the impact on confidentiality of the arbitration process. BANI also issued a new rules in 2025 that comprise among others the availability of emergency arbitration for case handled by them with arbitration fee of 200 million rupiah, and is a fixed fee and shorter period of arbitration proceeding. But interesting to see how this develops and how the enforcement of emergency arbitration when it is requested to the court. Indeed, I look forward to hearing more about how this develops.
Joyce: Afriyan, thank you so much for your time today. This has been really insightful and I've learned so much.
Afriyan: Thank you, Joyce. Thank you again for inviting me to this podcast.
Joyce: My pleasure. Take care.
Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's Global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com and our social media accounts at Reed Smith LLP.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
All rights reserved.
Transcript is auto-generated.
Host Gautam Bhattacharyya welcomes Isha Shakir of Henderson Chambers for this episode of Spotlight on… The conversation explores Isha’s decision to enter the legal profession as a barrister, mentors she has benefited from along the way, career highlights to date and what SAHM 2025 means to her.
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Transcript:
Intro: Welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Gautam: Hello, everyone, and welcome to our latest episode of our Spotlight on podcast series. And this is one of our special mini-series to mark South Asian Heritage Month 2025, the theme of which is Roots to Roots. And I'm really delighted today to have as our guest the wonderful Isha Shakir. Isha is a barrister at Henderson Chambers in London. I've been really looking forward to this discussion with her because she's really one of the real bright stars at the bar. And I know she's got a huge career in front of her. She's already done lots and lots, and I'm going to introduce you to her by saying a few words about her. So Isha, as I mentioned, is a barrister at Henderson Chambers. She has a broad practice, both litigation and arbitration, and inquiries of which she has considerable experience. And interestingly she's involved currently in the Dieselgate group litigation and amongst other things in the post office inquiry. It's a really great experience and amongst her areas also she can include insolvency and various aspects of commercial law practice. So it's really really good to have you on Isha. I'm really looking forward to our discussion. Let me ask you this to get us going then. Tell us a little bit about your background, because this is about heritage. So tell us a little bit about your, well, first of all, maybe your family's background, your own personal background in terms of your journey to where you are today as a, as I say, a bright star at the bar and why you chose to do law and ultimately also why you wanted to become a barrister.
Isha: Sure. Well, firstly, it's an honour to be on your podcast, and it's an honour to meet you. In terms of my family's background, so my granddad emigrated here to the UK from Pakistan, and he chose this little town called Bishop Auckland in County Durham to settle down. He had my dad, so my dad is first generation English, and my mum is Pakistani, and that's my background so I grew up in Bishop Auckland which is in County Durham next to Newcastle that's the accent I'm trying to retain my accent in a form of defiance.
Gautam: You should be very proud of it you should be very proud of that accent.
Isha: I am I'm very proud of it I am and so I guess where I started was you know growing up in Bishop Auckland and it's quite serious from the get-go because I'm the only ethnic minority in my school and also in my town and I'm the only visibly Muslim person there too and as I grow up I realized that during school and you know when I walked to town there is a lot of resistance against who I am and my identity in the form of Islamophobia, racism and it was quite intense growing up because you know I can tell you my first memory of primary school is being called dirty sat on a bench crying and I told the teachers about this and this is like a reoccurring story in my life is that I do tell people and nothing is done and I'm told to have thicker skin I think that was the sort of starting point for me to go internal and to gain this resilience and strength from myself from my faith and to then embrace my identity years later, which was the cause of so much pain growing up. And just moving on to secondary school, it was no better. In fact, it was a lot worse because, I mean, kids at that age are very judgmental. But when incidents happen, like terrorist incidents or whatever, I would be called a terrorist. I'd be told it was my fault. I'd be spat on. One of the main incidents was that a teacher drew the Prophet Muhammad, peace be upon him, on the board. And thought that was okay and a funny thing to do. And this is like, this is the background that I guess created who I am. And another sort of pivotal moment, I think, in my life was a careers advisor. You know, I went to a state school. I'm the first in my family to eventually go to university and the first in my family to have a proper profession in that sense. And I was really motivated growing up to go to uni and I wanted to do that so I told that to my careers advisor and she said to me that I wasn't smart enough to go to university and I should do a beautician course in the local college instead and that was her advice to me without looking at my grades without assessing my aspirations without knowing anything about me I was stereotyped into being a beautician and then even more heartbreaking is when I leave the this meeting this awful meeting and I talk to my school colleagues and they say that they were told the exact opposite that they were told to go to university and to aim high and I just thought that is systematic racism that I've had to come across and it took, it actually devastated me for about a week. And I went home and I was crying and my parents were asking me, you know, what's, what's going on? Come on, tell us. And then I told them, and that is, I think. The support that I received from them is so important in my life because they just said to me, don't let anyone tell you no. You go for it and you try. And it's going to be hard. It's not going to be easy. But if you work hard, if you hold on to your faith, you can accomplish things. And I really internalized that. And I was like, okay, these people are writing me off. They're underestimating me, which still happens to this day. And we'll talk about that. But it doesn't define my capabilities and my potential right I I can do I can change, opinions and I can aspire for great things so I used that incident as well to convince my family to let me go to a six form and outside of my little town in a different town called Darlington and I convinced them to let me travel on the bus for an hour and a half each day to get there. And that place was a bit more, it was more diverse. I didn't feel like the odd one out. And the teachers were really supportive. And I managed to get good grades at A-level and I got into York University. And as I started university, that careers advisor was still in the back of my mind. And I was thinking, I got in, that's great, but am I really smart enough to be here? And I just had to battle against that self out and I just tried really hard. I worked hard. You know, my faith comes into it because I truly believe that I'm protected. There is a plan for me and that all I have to do is try my best and everything else will work out. That's what I believe in. And it did. So with York, I think someone was looking after me and trying to really correct that, in a dialogue that I had with that careers advisor and every single person that told me that I wasn't good enough or that I don't deserve to be here because I ended up getting the highest academic grade three years in a row at York. And I graduated top of my year. and I think that that moment was just the seal on all of that negativity of the past that actually I am smart enough to be here I do deserve to be here and I can accomplish great things at York I was told about well actually I can phase in when becoming a barrister was you know on my radar because growing up I didn't know what a barrister was and there's that that cliche of barrister/barista and I honestly did not know the difference and obviously I knew I knew about lawyers things but I didn't know about the bar and how I came across that was in my first year of university I randomly signed up to become a witness in just this you know the advocacy training process they do for barristers to just refresh their skills like CDP and I was playing this witness who couldn't see very well and I was just acting at this point. And the senior silk who was training the other barristers said to me, you'd be very good at mooting. And I just smiled and nodded and I was like, oh, thank you. And I secretly hoped that mooting was a good thing because I had never heard of it. And I remember afterwards, I came off the stand. And I Googled what is mooting and I realized what it was. And I just threw myself into it because I thought, okay, well, let's give this a chance. Let's try. And as I did that, I discovered more about what being a barrister was because I was actually doing it, these little mock trials and cross-examination pieces and all of those things. And I realized that I really like advocacy. I really like complex legal problems. I was already dealing with that in my degree, sort of the law side of things. But it was the advocacy side of things that really came alive for me. And I felt electric every time I was on my feet. And I felt the idea of representing someone in court and speaking for people and for clients. It was amazing to me and something that I truly believe that I was created to do. I think another part of my passion for advocacy came in a little bit earlier than that because I decided to do something about this Islamophobia problem, to do something about the racism in my little town. I mean, my town has annual marches, which is Bishop Auckland against Islam. And it is a very, very difficult place to grow up in with someone like me to grow up. So I know for a fact that there are more people like me coming into that town and my sister was there, my cousins. And so I wanted to try and make a shift, make a change in the way that I could. And so I contacted my MP, this is again in my first year of uni, and just out of the blue. And one of my lecturers actually helped me put a letter together and that's when it actually gained traction because I had a professor backing me. And I arranged for me to go into primary schools and secondary schools and talk about respect and Islam, just clearing up the misconceptions that the children may have, but also just about backing yourself and having confidence, but also doing so in a way that you are kind and you are uplifting other people, that you don't need to tear each other down because another person is different to. And the change that I saw in these students from when I first walked in and they were judging me because of how I looked to then at the end of the class when I pulled out the scarves and I'm like does anybody want to go and everybody puts their hands up and they're telling me facts about Islam or tell me tell me stuff about Pakistan that I was telling them it was just such an eye-opening experience of well actually maybe I have a skill here that I can I can convince people and change their opinions of me in an eloquent way. And if I can get through to the 10-year-olds, maybe I have a skill to get through to the judges and go further. So yeah, that was sort of the start of becoming a barrister for me in my first year. And then also coincidentally, and I think this is like the true love story in my life, is that I randomly again signed up to an event at Henderson Chambers in my first year of uni after I'd found out a bit more about the bar and I met barristers there and I truly I just liked the sort of friendly vibe I didn't feel like they were inaccessible to me and I think I had this like youthful overconfidence because I didn't know the world and I just went in there thinking that And not having the doubts and the sort of scared feeling that maybe I should have had. I done more research and found out about who I was actually speaking to. I just went in there, smiley, happy, and trying to make conversation with other barristers and people there. And then I did my mini pupillage there in my second year of uni. And again, I loved it. And then from that moment, I was like, Henderson's where I want to be at. And that's where I focused all my attention. After graduating from my undergraduate degree, I got into Oxford to do the BCL. And again, that was another marker for me that I'm pretty smart and I can do this. And during my BCL year, which was a very tough year, it was during COVID. So I got the first year I got to experience the sort of feel of being at Oxford. And then yeah the first term and then the second term and third term it was just locked down so I didn't really get that experience but during Oxford I as a trial run applied for pupillage at Henderson and I got it I got it first round so I said to myself it's a really intense year let's just see it as a trial run let's just see where we go to but it was it it was just meant to be. And that's how I got to Henderson.
Gautam: Well, you know, that's an absolutely sensational. Account you've just given me and given our listeners. And in fact, we could just stop the podcast there now, which we're not going to do, by the way. And that would just be the most inspirational section I think we could ever hear. Thank you hugely for sharing that story. It was very personal. It was very raw. That's what it's all about. And genuinely, you were born to do this. What you've said, Isha, it resonates not just with me, but with so many people. In all those naysayers, and I really hope, and I know the chances are very remote, to say the least, but that careers advisor who tells you to do a beautician's course, I really wish he or she could listen to this podcast and look at you now. I really wish they could because these naysayers, and there are lots of naysayers like this, I had... Trust me, I had a few naysayers in my time, and I'm, of course, a lot older than you, but I remember, and I'll share this with you. I was 17 and doing my A-levels. I'd just done my first year of my A-levels. And as you know, that's when you start to think about what you want to do for a degree. And I wasn't doing law as an A-level because very few people who do law actually do law as an A-level, as you know. And I wanted to consider doing a law degree. And I remember one of these teachers at my sixth form college in Northwest London, where I grew up, said, well, I'm not sure a career in law is for you, and really tried to put me off. And I asked, Well, why not, right? Because when you're a product of immigration, which people like you and I are, and many of us are, those two words should be at the forefront of our mind all the time. Why not? And I was brought up that way by two loving parents. They're both up in the heavens now. But they always taught my sister and I to think, why not? So all those naysayers, I mean, you know, and there are lots of naysayers out there, But well done to you because I'm so proud to hear what you've said that, you know, despite all of that and despite all the prejudice, despite everything, it's like I said in the introduction, you are a real bright star and there are so many people. Who will come up through the system, being inspired by you. And I just loved hearing that. And, you know, let me turn to something then that spins out of that, which is, and you touched on this in your fantastic segment there, but about your heritage. And this is all, you know, that's very important because it makes us who we are. And all those things, family, faith, the example that we get set by our elders and the determination we gain from all of that and the values, not to say the languages that we can all speak as a consequence of that, because I dare say you and I are not just bilingual, we're trilingual. But in terms of all of that, tell us a little bit about, as we celebrate South Asian Heritage Month, why heritage is so important to you and what are some of the big things that it does for you to drive you every day of your life and your career?
Isha: That's a great question. I think who you are and where you come from are so intertwined. And I think that knowing that I have Pakistani heritage, I have, you know, one of the key players in my life was my nana, so my mom's dad. And one would think that you know, because of cultural stereotypes and things like that, he wouldn't be supportive of my career aspirations. But he was the one that was backing me throughout this whole journey. And every time I would call him over the phone, and that's one of the reasons why I know Udu and I know Punjabi, so that I can converse with him growing up. And he would just, you know, he would always check in on how I'm doing, you know, what's the next step? Are you there yet? This support that I got from this, you know, strong man, who was, you know, full of faith and full of light was such an important influence in my life and knowing about his story as well. And he had to, you know, overcome so many challenges in his life to get where he was. And same for my parents and my wider family. We've all had to struggle. We've all had to, you know, put our big pants on and keep going. And the fact that you know my granddad chose to move here I'm so grateful to him for that and I love hearing about his stories about how he only had 20 pounds when he got here didn't know what to do and he found some friends and all of these things I just think that gratitude. For where I come from plays such a big part in who I am today and that is really important and And the skills that it comes with, I can tell you a funny story of me turning up for an emergency injunction in Clerkenwell and Shoreditch County Call. And on the other side were litigants in person who also spoke and they didn't speak any English. And the case was essentially about us as the local authority going in and preparing damp and serious things in the home for their children and they didn't understand what was going on. And so I was there in the hearing and before the hearing translating and being a barrister and achieving the right outcome for both parties. And so on the court record is my Urdu, which is which is quite cool but but i remember there's this is saying to me that you know if i wasn't there with my skills that could that could have gone horribly wrong because there was such a miscommunication between the judge and the parties and so it is a strength and i think anybody who's listening to this that has some difference that has a rich heritage because it is a it is a strength should truly embrace that. And starting off how I did with truly when I was growing, you know, resenting being different and just wanting to fit in and getting penalized for it to this point now where I embrace my difference. I think it's my superpower. I love being Muslim. I love being Pakistani. I love being English. I love it all. And I think that's the stage that every person should get to because we are made up of inspiration people around us and we can draw on their strength and the culture and the beauty of it. I mean, when I go to Pakistan and I eat the food and I wear the colorful clothes and I just feel such an embrace and what a privilege it is to have that side of me and have that beauty as well so it's something to embrace and and that's what heritage means to me.
Gautam: Again very very powerful and again really strongly hits me and will hit so many of our listeners because you know it's something that gives us a lot and it's only when we think about how lucky anyone is who's got a different heritage because we're all very proud to be British I mean I am very proud to be British, and I think it's the greatest country in the world. London's the greatest city in the world. I can go on and on and on. At the same time, I am empowered by the fact that I've got something else I can lean into so much, and my background is so incredibly important to me. And if anything, Isha, my reflections on it are that I probably understood just how important my heritage was as I got a bit older. Because I think it hits you when you get a bit older. It probably hit me when I had that naysayer at sixth form and my mom's words when I came back and told her, because my mom only began working part-time when my sister and I were well-established in school. I remember this conversation so well. I came back, my mom came back and I was at home And I said, I'd had this conversation and my mom's words were, you know, I've always told you why not, right? And you going to prove her wrong, right? And that's the, I can remember that conversation so well. And, you know, and I, so look, what you've said really resonates so strongly with me. And thank you again for being so honest about these issues. And, and, you know, I want to touch on one quick thing before I move into the final section of the podcast, which, and I, and as you may. Know Isha, I always like to end podcasts with more lighthearted conversation about hobbies and pastimes and fun things like that. So we'll come to that in a second. But I want to ask you one other thing that's really important to me, because I love championing women. And I particularly love championing women from an ethnic minority background, because the more advocates and champions that fabulously talented women can have from that background, the better. If you were to give some advice to an aspiring young girl or young lady who's thinking about entering the law and is a bit unsure about it, what little bits of advice would you give that person?
Isha: Another great question. I love this podcast. I think the advice I would give to any young girl is just be brave just be brave you can feel scared you can do it anyway and and dream big. You know you don't need to limit yourself and the true limits that we have in life are the ones that we put on ourselves sorry I'm just getting a bit emotional saying that but it's it's so true and for me when I when I decided I wanted to become a barrister and I was looking at chambers and I didn't see anyone like me in that position, I could have, and I know people have this feeling that there is no place for me there, that I don't belong, that this isn't right for me because no one who looks like me is there. But what I did and I encourage others to do is flip that around and say, well, I'll be the first. They'll look on that website and they'll see that there is a hijabi Muslim Pakistani woman there and and other people can see that of that same background that it is possible and that I can do it and so that's that's what's taken me through my career that yes I'm doing it because I think it's the best job in the world and I love that I love the intellectual complexities the public speaking and all of this but also I'm representing my community. And I'm trying to inspire them to do, as I said, be brave, think big, and just go for it.
Gautam: Wonderful. I mean, absolutely wonderful. And that's how it should be, right? That's how it should be. And I'm a firm believer that the only obstacles in our path are the ones that we allow to be there. We've just got to think, hey, we're here on merit. It's a meritocracy, despite what might happen sometimes and might be said sometimes. Life is and should be a meritocracy and having the pride in being different is good and so thank you so much for sharing those thoughts i mean i was i was really excited at the prospect of doing this podcast with you i'm even more excited having done the podcast with you and as we entered the final bit which is going to be about some fun stuff i'm truly in huge debt to you for being so candid and open and honest and raw about all of these things, because it's how it should be. So let me end on this note, right? You know, you're a busy young lady. You've got a great practice, and it's only getting even greater. You're destined for wonderful things, and one day you will be one of His Majesty's counsel. Of that, I have no doubt. And I shall look forward to that day with huge enthusiasm and keenness, I can assure you, Isha. But tell me this, what sort of hobbies do you have? What's your favorite interests and pastimes when you're not in practice as a barrister?
Isha: Well, thank you so much for your kind words. That means everything coming from you. so my hobbies it might surprise you but I know Thai boxing, Muay Thai. My dad was a Thai boxing instructor and so growing up I think there's footage of me being two years old trying to kick and punch things. Amazing I love it I love hearing that gosh I am surprised that I love it though I love it. So that's something that I do and I still keep up to this day you know I just think women should know how to defend themselves with one and number two it's such a good outlet for any of the tangled of emotions that we as human beings have right and so yeah that's that's something I do I also horse ride which is something that I love doing it's my happy place and I've been a horse riding since I was pretty much seven years old and that was something I was worried about actually moving from County Durham to London was whether I could keep it up or not because it's a bit more difficult to access, and because I was quite an experienced rider I didn't want to do lessons and things like that but just I'm so grateful because I found someone who has horses that she lets me ride them and train them up for her, So my weekends are spent going through forests, galloping through fallout forests. And I'm just in this sort of serene world of not thinking about law, not thinking about who I am and all the struggles that I have, but just thinking about how beautiful nature is and my connection that I have with horses. So that's another outlet for me. And then aside from those things, my faith, every day I'm trying to get better and being a good human being and becoming more grateful and giving out more and being more kind and so that's another I would say interest that I have too
Gautam: Well an amazing end to an amazing podcast with an amazing guest thank you so much for being such a wonderful guest I mean I I've genuinely loved doing this a podcast with you as someone who's done a few podcasts I've And I've been very fortunate to have spoken to many, many wonderful people. You truly are very much at the top of the tree. And I'm very grateful to you for being who you are and doing what you do, being the example that you are, striving to do such great things as you do, to be a great person, to be a great lawyer, because you can be both. You can certainly do both at the same time. And I'm also inspired by the fact that you're a martial artist, because I think, I mean, I generally mean this as we end this podcast. I think some of the most talented people in the world are mixed martial artists because you've got to be specialists in a number of disciplines and be very disciplined mentally and be very fit and be so resilient. And so, you know, it's one of like, I could carry on talking with you for ages, but I'll save that for when we meet in person. So let me say this again. And thank you so much, Isha, for being one of our podcast guests for this mini-series to celebrate South Asian Heritage Month 2025 and for being such a superb guest. So thank you and see you very soon, I hope.
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Transcript is auto-generated.
Reed Smith lawyers Mahmuda Kamalee, Ravi Pattani and Akshay Sevak join host and international arbitration partner, Gautam Bhattacharyya, for a special episode to kick off this year’s SAHM celebrations. In this reflective conversation, our speakers share the inspirations that have shaped their careers and lives, lessons passed down through generations, the best advice they have received (to date!) and what heritage means to them.
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Transcript:
Intro: Welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Gautam: Hello everyone and welcome to the first of our Reed Smith podcasts to celebrate South Asian Heritage Month 2025. This year the theme of South Asian Heritage Month is Roots for Roots. And I'm delighted to say that for this episode I've got three of my very dear colleagues at Reed Smith as our guests. I'm going to briefly introduce them to you. And then by the end of this podcast, once you've heard them speak to the questions I will be putting to them, you'll realize what fabulous people they are, let alone what brilliant lawyers they are. So first of all, I will introduce Mahmuda Kamalee, Mahmooda is a newly qualified associate in the Global Commercial Disputes Group in London. and she is doing a broad range of work in a number of areas in that practice. Secondly, I will introduce Akshay Sevak, who is another associate in the Global Commercial Disputes Group in London. He too does a broad mix of work and he is, at the time that we're doing this podcast, he's halfway through his Higher Rights of Audience course. So by the time this podcast goes out, I'm sure he'll have a further set of titles to put after his email block when he sends you all emails. Last and definitely not least is my partner, Ravi Pattani, who is a partner in our corporate group doing a broad mix of corporate transactional work and is definitely one of the future leaders of that corporate practice. So delighted to see you all and have you all here. I'm looking forward to our discussion, and I don't want any of you to hold back, okay? So I want you just to let it flow and tell me exactly what you think about the questions I'm going to ask you, because you are some of the shining lights in our practice of South Asian heritage. So let me go straight into it and ask the first question, and I'm going to ask each of you this question. I'm not going to ask you all the same questions, but I'm going to ask you all a few of the same questions. The first thing I think is always interesting, because I know I've been asked this question so many times in the course of my career so far. Why did you choose law as a career? So maybe I start off with Mahmuda on that, please.
Mahmuda: Thank you, Gautam, for the lovely introduction. And I'm really pleased to be here with you all today. If I'm very honest, I can't actually remember a particular reason as to why I chose a legal career. And I know as a lawyer, we can shy away from saying that because there should be multiple reasons why we chose it. But I think my earliest memory of wanting to become a lawyer was when I was around 14 or 15 years old. And I recall we had a careers day at school where we were learning of the different roles and jobs in society that we could take on. And I was introduced to the idea of a judge, a solicitor and a barrister. And I just remember leaving curious as to what their roles were and the way in which their roles enabled them to achieve justice in different respects. And then from there on, I decided to research as I grew older into different work experience opportunities at law firms. I attended legal clinics and I attended other events for other jobs to see whether sort of my curiosity in law was shifted at all. And I'm really pleased today to say it wasn't. And all of these experiences enabled me to see how impactful legal work can be, both in a courtroom, but also in everyday lives. So this continued to reaffirm my interest in the field. If I look at it from a more academic perspective, I've always been interested in analytical thinking and subjects which emphasise written skills. So naturally, law stood out to me as a discipline, which combined these elements. And I particularly enjoyed doing a law degree. And like I said, the analytical thinking and the emphasis on written skills was the motivation behind choosing to study law at undergraduate level. And then I proceeded to seek a training contract at Reed Smith, which I was very lucky to get. And now here I am today as part of your wonderful team, having the opportunity to work with yourself.
Gautam: Well, thank you, my Mahmuda. Well, you know, I can certainly say that I've been a witness to your analytical skills and your drafting skills. So I'm very glad you made that choice. And I'm very glad that your curiosity was really brought about because we've got you. So thank you. So let me ask that same question to you, Akshay, please.
Akshay: Thanks, Gautam, and thanks for having me on this podcast. I don't mean it in any small way when I say it's a real honor and it's a real privilege to be able to share the stage with yourself, Mahmood and Ravi. So I think mine was, my reasons were a lot less structured than Mahmuda’s. I actually, so I grew up in Kenya and my plan, to be honest, when I was 16 was, when I look back at it, I was very much trying to become a professional pianist. I was going to go to music school and And then I decided when I was 16 that I didn't have the maturity to understand music in the way that you needed to do that. Certainly not at that age. And I thought, well, what else do I like doing? And I like talking, which is why I'm here. I liked the analytical subjects like history, English. I liked physics and maths quite a lot, the detail in that. And someone said, well, why don't you consider studying law? And I thought, well, I am coming from abroad. I probably should do something relatively rigorous to justify the endeavor to my family. So I came to law school and I just, I was so great because everyone was so, so smart. The work was really difficult. It was really interesting. And I just didn't appreciate until I started studying it that you really can sort of grasp and really grapple with so many different facets of life through this one medium. So when I was at law school, similar to Mahmoodo, I applied for vacation schemes and training contracts. I was so fortunate to land one at Reed Smith. And even to be honest, as my training contract completed, I really did think that it was time now to go back home. And there was no intention to stay on. And so when the department I'm now in, Gotham, your team, the Global Commercial Disputes team, offered me a job to stay on, And it was just very, very good luck. And so here I am now.
Gautam: Well, thank you, Akshay. And I mean, I know you still play the piano very well. But I'm also very glad that you chose law over the piano. And I'm also glad that you made London your home. So that's very good. Thank you. Okay, last but not least, I'd like to ask you, Ravi, the same question. So what brought you into the law in the first place?
Ravi: Thanks good to be here I wish I could say that I was like Mahmuda or Akshay and really thought about the career choice I was going to make and thought about my skill set and how that would complement the law but I was probably about 12 or 13 watching TV and seeing all these high-powered lawyers and suits and fancy offices and fancy cities around the world I thought oh that sounds like fun and I kind of just stuck to it and had no imagination to go for anything different to what what I thought I wanted to do back when I was a 12-year-old watching TV. I come from a South Asian heritage, like all of us here, and despite the regular view of your parents want you to be a lawyer or a doctor, my parents were very much against me being a lawyer and wanted me to be either a doctor, a dentist, a pharmacist, anything in the sciences. And so actually when they said, no, don't do law, it was actually almost like a weird rebellion. Given that it's law, It's quite a sensible rebellion, but it was a slight rebellion. And so I kind of just wanted to get into the career. And like Mahmuda and Akshay, and actually I did study law as an undergraduate, I actually didn't enjoy the undergraduate degree, so much so that I kind of didn't really put a lot of effort into thinking about my career and applying for roles and doing the vacation schemes. But thankfully, I had really good friends around me who encouraged me to apply for a vacation scheme. I applied to Reed Smith and the rest, as they say, is history.
Gautam: Well, I am very grateful to those friends of yours who gave you that nudge, really. Because in life, we all need a nudge now and again, right? You know, since we all share that South Asian heritage, as you said, it is interesting that point you made about how, you know, we study things, but there's a sort of perception of what we might want to do, what people think we ought to do. And sort of just finding our own way is so important. And I want to pick up on that theme with you all, actually, and ask me the next question. And this, again, is going to be directed to all of you. What's the best bit of advice that someone has given you so far in the course of your career? Is there something you can particularly remember that made a real impact on you that's helped you and guided you to drive forward in what you do. And maybe I can start with Akshay on that one first, please.
Akshay: Thanks, Gautam. I think, so not to embarrass you, but I think you've definitely given me quite a lot of very useful and great advice in my career. I think some of the most useful things that I've really, really held on to when we've spoken has been that you've got to keep things simple. There is no monopoly on wisdom. And those two things have been real, real confidence boosters to back, to feel, for me to feel like I can back myself with ideas, with also, with trying out different things. I think the advice I got from my parents and from my grandfather was, in turn, just take it a step at a time, which is probably an iteration of keeping it simple as well. But I just didn't appreciate how profound that was at the time. And from my granddad, just always be bold. And perhaps we'll touch on this later, but I don't know any, quote unquote, relaxed or timid South Asian people, certainly not in my family. And I found that skill to be incredibly useful in a career in the law, perhaps in litigation as well.
Gautam: Yeah, very true. I think, yeah, I mean, having that ability to stand up to things, you know, cleanly is very valuable. Well, thank you, Akshay. Why don't I turn next to Ravi, if you can perhaps share with our listeners something about some of the advice you've got and why it made an impact on you?
Ravi: I think for me, it was your opinion matters, your opinion is valid. Like a lot of people, I think I have suffered and do suffer from imposter syndrome you you enter this big city law firm and especially when i joined thankfully it's improving and has been improving I’m sure since your time Gautam but there wasn't a lot of people who who looked like me not necessarily even at my level but in kind of in the senior roles and and you start to think oh or should i be bringing this viewpoint into this conversation should i be raising my opinion and having not really worked in a city environment or an office environment I was kind of nervous or skeptical about doing that and I remember someone saying to me no no your value your opinion is valid your opinion is important and you need to raise it and I'm not saying that it was an overnight journey for me it took me a while to feel comfortable to do that but it was the thing that I think really helped propel my career that I felt empowered to to join conversations with senior stakeholders with clients and not be worried about expressing a view expressing an opinion even if it was counter to to the senior partners I was working with because sometimes my viewpoint made them think of things in a different way and and helped our client achieve the results that they were looking for so that for me was a real big one and it's something that I still sometimes struggle with today and I'm still working on but it's also the one that I hope that I will be able to impart on other people that no matter where you come from no matter what kind of level you are or what stage you are in your career. Speak up and in a respectful way, make sure your voice is heard and it can make a big difference even at a very junior level.
Gautam: Thanks, Ravi. I couldn't agree more. And I think that's really an impactful thing. And keep, please, expressing your views. Keep speaking up because it's really important. It's so valuable when people share their inputs and thoughts. And Akshay said there is no monopoly on wisdom. And we're all better for sharing thoughts, for ensuring that everyone has a say, because no one can say, I've got the right answer on everything. And people see things in different ways. I know I learn every day from people I work with, my great colleagues I work with. I learn every day. The day I stop learning is when I'm going to hang up my legal boots, because we've got to keep learning. So, no, thank you, Ravi. Thank you, Akshay, so far for that. Let me turn to you Mahmuda and ask you the same question about some of the best advice you've got and why it's had an impact on you.
Mahmuda: Thanks Gautam and thanks Ravi and Akshay for sharing your advice as well which I think was really empowering. I can resonate with Ravi on the imposter syndrome as a South Asian Muslim woman who looks different from the general crowd. I must admit I do suffer from heightened imposter syndrome and I'm not sure if the person on this call remembers what they said to me but Gautam interviewed me in 2018 when I was when I had just finished my first year of my law degree and he was interviewing me for the placement year which Reed Smith did in collaboration with my university Queen Mary and I remember finishing the interview and I was an absolute wreck I might have not shown it at the time but I was so nervous I was thinking why would they choose me. Someone who looks different might speak different and doesn't have the sort of traditional backing to becoming a successful lawyer, what I thought was necessary to become a successful lawyer. And I remember leaving Gautam in the lift. I was heading down to leave the building and he was heading back to the floor. And what he said to me was, you are a butterfly whose wings are learning to fly. Do not allow anyone to clip them and do not allow yourself to click them. And while it might not be traditionally a piece of advice, I just remember that statement sticking with me to the point that now, like, seven years later, I still remember that. And I left feeling that day that no matter what the outcome is of that interview, I won't allow anyone to click my wings. Whether they see my worth now, they may see it later. And that really stuck with me. And it allowed me to manage my imposter syndrome so much more better because that serves as a reminder to all of us that actually sometimes we might be our biggest critic. Other people might see our worth, but because we're overthinking so much, we end up sort of making the situation far worse than it is. And that could mean that we lose out on opportunities. So thank you, Gautam, for saying that to me back then in 2018. Yeah, first year law student Mahmuda really appreciates it. And actually NQ Mahmuda appreciates it even more now because I thought life was hard back then. But actually, it just gets tougher. But it's thanks to seniors like yourself who have enabled us and empowered us to continue.
Gautam: Well, that's very kind of you. But I mean, the real superstar of that whole event was you. And, you know, it shows, right? Look where you are today. Just look at you now. And that's the wonderful thing. And I tell you, just going off-piste for a while to share with the three of you and our listeners, one of the great things that I look back on, you know, I've been in practice now for almost 35 years. And one of the great things that I love to see is to see young talent blossom. And I've seen many a nervous person like you, Mahmuda, who, you know, and you were really, really good. I still remember that interview, by the way, and I still remember our conversation, just for the record. I just love seeing people do well, and I think the role of more senior people is to enable that and empower that and make sure that lawyers like you, Akshay, and Ravi don't just equal people like me, but you surpass me. Because that's what passing the baton is all about. And that gives me a lot of satisfaction and happiness. So, no, no, I love it. I mean, look, I think the world of all three of you, and it's evident from the first video of this podcast, just how brilliant you are anyway. So our listeners will work that out for themselves. I should avoid more commentary. But, you know, let me ask you this. I was going to ask you a bit about why Ravi chose corporate and why you, Akshay, and Mahmuda chose disputes. But I think we've really learned so much about you anyway in the course of our first part of our discussion. But I want to ask you this, if I may. And this is all about heritage, right? We're doing this podcast about South Asian Heritage Month. And of course, Ravi's a great corporate lawyer. Akshay and Mahmuda, you do disputes work, litigation, arbitration, investigations, etc. But one of the things that we all know is that our heritage is really important. And there are many more people who will come after us and who will do well and who will look to us and think, yeah, well, if they can do it, I can as well. Heritage has many aspects to it. But I wonder, given the whole subject of heritage, I wonder if I could ask you to say what heritage means to you and why it empowers you. And actually, I think this is a question that's worth asking of all of you because we're moving on the questions. But I think, you know, why don't I go to Ravi first on that? Why is heritage so important to you and how does it empower you and make you better at what you do every day in your practice?
Ravi: I think for me heritage is not just about people coming next it's about the people who have come before me who've kind of fought the fight trolling that path not just in the legal career but i look personally at my my family they like many south asian gujaratis they my family came via uganda so they were there in the 1970s and then moved over here and you know they had a very settled happy life back in Uganda. They were uprooted and moved to the UK in the 70s and rebuilt their lives. And for them, it was about making their next generation's lives better, the focus on education, the focus on career and building a comfortable life for yourselves. And I'd be very grateful for my family for putting those kind of values in me, instilling those values in me. And that's what kind of helped drive me to where I am now. And I also... And that's kind of the more serious point of it. But also I grew up in a nice bustling, big Asian family with people in and out of our house every day. And we had to learn to one multitask and balance our work with hosting people in the home and also making conversations with people that I'd never met before and all of these kind of life skills, which at the time you don't really appreciate how important they're going to be. And all of those things have been so valuable for me in my career. So as a corporate lawyer, we are working on multiple deals at one time. We have to be able to balance our work. We have to be able to balance our work and our lives. We have to be able to balance the various different competing tasks for clients. And all those skills, which I didn't really appreciate or kind of hadn't understood I was learning, have come to the fore. My ability to make conversation with anyone. I mean, I think all of you will be testament to this. I can pretty much talk to anyone at any time and I will talk to anyone at any time. And that all comes from the roots that I've been given, my heritage. And that's hopefully helped me to kind of make those connections with my colleagues, with my friends in the firm, but also with clients. And that's hopefully going to be the route for me to continue to build my practice and to demonstrate that actually all those things that you take for granted as a young child or the things that you think of as challenges that are different to other people who are growing up around you are really valuable things and they are the things that set you apart and they are the things that will help you identify skills in yourself that you didn't even realize that you had.
Gautam: Thank you, Ravi. That was fabulous. Can I ask Akshay to share your thoughts, please?
Akshay: Thanks, Gautam. Yeah, no, thanks, Ravi. Really, thank you so much for sharing. Ravi and I have something in common in that we're both Gujaratis and we both have family who came from Uganda. And what I thought was really interesting from the answer Ravi gave is that he said his family were uprooted from Uganda. They had a comfortable life and then they rebuilt here. But he doesn't use the word that was used to describe them at the time, which is refugee. And I think that's quite telling. And I think it leads into my answer. Because I think that there are so many, it would have been so easy for people coming over them to let their circumstance better them. And I think that permeates the language we talk about it today. And we speak now about how everyone of the South Asian heritage and other heritage as well, to be honest, have come here and rebuilt their lives and made something for themselves. And I think that just taking a moment to pause and recognize how significant an endeavor that was, for me, is an empowering act in and of itself. It says to me, certainly... You are from stock that is very well tested. And you've got it in you to really go the distance if you want to and if you put your mind to it, because others before you have done that and much, much, much more. So I think that for me, heritage means honoring those who have come before, really just recognizing the awesome power and grandeur of what they, in relatively or seemingly normal lives, how they have achieved the extraordinary. And I think it's also, heritage also means to me recognizing how beautiful it is to have something which is slightly different about you. What a privilege. We all get 24 hours a day in a set number of years on the clock, which you can't change. And you get yours added with extra masala and spice as well as everything else that you gain in this country. I mean, it's extraordinary privilege. So I think for me, I just wouldn't feel, life for me just wouldn't be as fun. If I didn't have a recognition of that heritage. And I think that if I'm doing anything right, then it's by standing on the shoulders of very, very many people in my community and in my family. And hopefully someone will be able to stand on mine too.
Gautam: Fabulous. Thank you, Akshay. I'll save some thoughts until after I've heard Mahmuda, because what you've both said so far really resonates with me too. Mahmuda, share your thoughts, please, on that.
Mahmuda: Well, firstly, I want to say, Akshay, you said masala and spice, and all I could think of was karak chai, and I wish we had some right with us now.
Gautam: Well, as if by magic, I'll get some to you, don't worry.
Mahmuda: That would be amazing but I think for me Akshay hit it right on the head our heritage and being different is a strength and it brings a different level of fun to our lives if I if I can call it fun for me being different is a strength for those who know me the first thing I always say to everyone well the first thing my family introduced me to everyone is by saying I'm a lawyer but for myself it's always saying hi I'm a British Bangladeshi Muslim and I take a lot of pride in stating that and stating that I'm different. And it's not always been the case. However, I can say that it's now a core part of who I am. And without my heritage, I can't even imagine who I would be or the life that I would have. For some context, my mother came to this country when she was about 14 years old from Bangladesh. And I'll use a lovely term that Ravi said, uprooted from Bangladesh to start a new life here. And whilst they came for a better life, it wasn't always so easy. And my maternal grandfather, who is still around and who I'm so grateful for, he always shares the stories with us of how he had to come to this country first to establish himself before bringing over his wife and his kids and how that distance just reminds him of how important family is and the fact that if he hadn't maintained that distance and tried to establish his life here first of all my mother wouldn't have come here and if she didn't come here I wouldn't be here and have the journey that I've had to date so I think my heritage is really important to me it's a reminder of not only the impact that I will have going forward but also a reminder that I should be grateful for those who came before me and what they've done for us. My heritage has shaped my professional life in multiple ways. And I guess the key skills and values that I've learned from being a South Asian woman is values like community. Like Ravi said, the household was hustling and bustling with guests at any hour, lots of food to go around the table and lots of conversations. So communication was one of the key skills that I picked up on. Also, I learned empathy, emotional intelligence, which I think we might not know as a key skill and value that a lawyer should have, but I think it's enabled me to better understand my clients, to think about the emotions that a client goes through, that a firm goes through when we're strategizing as to how to help them best. And like I mentioned, my grandfather came, he uprooted himself to this country and he spent a good few years without his family, without having much contact with them and without having much resource to build a life for them. He taught me perseverance and resilience. And those are two attributes that I hold very closely to myself. And I think without that, I wouldn't be the lawyer that I am. So my heritage, my upbringing have allowed me to appreciate that difference is not always negative. And I've got a deep appreciation and I'm really proud of being different, whether this is my language, my religion, my way of living, or even the way I dress. I take pride in being different. And I think it helps me to stick out in the crowd in a positive way.
Gautam: You know, you three are just sensational. Thank you, Mahmuda. You know, you've said so many brilliant things and I know that our listeners will resonate because these are your personal stories. And they also hit very much the Roots to Roots theme of this year, South Asian Heritage Month. And everything you've said just really resonates with me so hard because, you know, my parents came to this country. It was the first time they'd ever been abroad, right? They came to this country and they enabled my sister and me to have opportunities. And I will always be eternally grateful to my late parents for that. And the routes that they took to come here and lay down routes meant that they were very keen for us, even though we were outsiders, and we will always…. Unfortunately, some people will always regard us as outsiders. We were able to lay down roots, integrate, and learn all those lessons that all three of you, rather, have so eloquently spoken to. And the fact is, all four of us speak more than one language, right? Now, very few people would be able to be brought up bilingual or trilingual, or even speak more languages than that. But we're all able to say that we have had that privilege and we do have that privilege and different is good. And that's a theme of what you've all said. And I think that is, for me, that really summarizes so much of what we're talking about. So thank you so much for your fabulous, candid thoughts, thoughtful points you've all made about it. And, you know, very fitting that we talk about all of this as we celebrate South Asian Heritage Month. So I'm very grateful to you all. We're now approaching the end of our podcast, but for those of our listeners who have heard podcasts that I've done before, I always like to end our podcasts with some more lighthearted conversation, totally unrelated to the subject matter of the actual a podcast, and this one is no different. So I'm going to ask each of you a separate question and love your thoughts. I'm going to start with Mahmuda first, because I know, apart from your incredible prowess as a lawyer and your effervescent nature, you're also a real foodie. So tell us what food means to you and what sorts of food we're talking about.
Mahmuda: Thanks, Gautam. If there's one thing I can say about food, if I'm equally passionate about something as much as I am about law, it's food. And not just because of the fact that I just really enjoy eating. I think food, especially in our shared heritage of being South Asian, just I saw food as a way of bringing people together. I saw food as a way of showing affection, showing appreciation. And food was a way that I regarded my mother's efforts. She might say that she couldn't do much for us and she says that often she she wasn't educated to the level that we all have been privileged to be educated at and the one thing I say to her was you provided us with food and food is the fuel for everything and anything and without that delicious food I wouldn't be the strong woman that I am today so that's that side of it but aside from that I have to say I've always been conflicted between what my favorite food is the British side of me always says well it has to be it has to be a good roast a good roast dinner like that's my absolute favorite and when Christmas time comes and we have all of these lunches and dinners at work I'm just so looking forward to the roast dinner but I've got to give it to my heritage nothing beats South Asian food and we're all going to be biased on this call nothing beats it for me it's a good biryani just the layers sauces like actually said the spices the masala nothing tingles my taste buds more than a biryani and just to put it out there if anyone wants to bribe me with something, it's going to be that biryani because I can't say no to that biryani. So I'll work late all night for you. Just give me a biryani.
Gautam: You shouldn't have said that now because now everyone's going to be getting you biryanis every day of the week. But no, thank you.
Mahmuda: I don't mind. I don't mind at all.
Gautam: Yeah, yeah, yeah. No, I love it. I love it. I love it. Thank you. I'm going to turn to Ravi next, if I may, and we'll close out with Akshay. I want to ask you a different question, Ravi. Is there a particular sort of music you like, and do you have a favorite album?
Ravi: I have a very eclectic musical taste, so I would like everything from, you know, the cheesy, hot top 40 to a bit of indie rock to obviously some Bollywood and a bit of pangra. But I'd say my go-to comfort music kind of goes back to the noughties garage R&B scene, which would always be my go-to music. I recently went back to leicester where i grew up and Craig David was performing and it reminded me of so many youthful nights out and enjoying a lot of time with my friends and family at the time and so going to my favorite album i feel like Craig Davids first album born to do it was just such a pivotal uh kind of time in my life and that album will always be one that's uh close to my heart and i'll always remember and i will always dance along to and sing along too but i hate karaoke so you'll never hear me it's just in the shower for me.
Gautam: Well next time I get you in the karaoke I’m gonna ask them to do either Rewind or Seven Days or or i might even find another track you know there's a few tracks why Craig David from his early days which i'm sure you can do really well but look thank you for that it's a great one i i love it i love it i've learned something new about you now from that that's brilliant right now last and definitely not least Akshay i'm going to ask you this question leaving aside the UK have you got a favorite holiday destination that you just love going to or and i'll give you a choice or that you've not yet been to but you'd love to go?
Akshay: It's a tough it's a tough one it's definitely a tough one i'd be i'd be remiss without mentioning Kenya. I know it's not a holiday destination because I grew up there, but it really is God's own country. It's not in Yorkshire. It really is in Kenya. But I think the best travel destination I visited by a country mile has to be Sri Lanka. It was such a beautiful island. And I think it's a fascinating combination of the Buddhist culture, the Hindu culture in the north. It's an island that's small enough that you can go around the entire thing. Multiple times if you wanted to. The transport's great. The people are so friendly. It's beautiful. I visited after I qualified as a lawyer, and I spent just under a month traveling around there. And after a while, I must have been coming across as a little too comfortable, because people started assuming that I was Sri Lankan, which I exploited, that's for sure. And then one day, someone pulled up on the road and asked me in Sinhala for instructions. And I just pointed straight and they just said nice one and continued on and that's when I knew that I'm going to have to come back here either to apologize to this person or to see other parts of this wonderful country so to anyone listening to this Sri Lanka if you haven't been make sure you go.
Gautam: Brilliant. Thank you. I'm sure it was the right direction, by the way. But listen, thank you very much. That brings us to the end of our podcast. I'm very grateful to you all. So thank you, Mahmuda. Thank you, Akshay. Thank you, Ravi, for not just sharing your thoughts today and being so fun and candid, but also being so thoughtful about all of the issues we've spoken about, and particularly on heritage. And a big thank you for being such great colleagues. The one thing about working in a law firm and the practice of law is it's hugely assisted by having brilliant colleagues to work with. And having people like you and seeing people like you do well and blossom and flourish makes me really happy. So thank you all very much. And I look forward to seeing you all very, very soon.
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Discover the key features of Cambodia's arbitration regime with Joyce Fong and guest speaker Guillaume Massin from DFDL. This episode delves into the practicalities of Cambodia-related arbitrations, including the role of Cambodian courts in supporting arbitral proceedings, the process for enforcing foreign awards, and the most common grounds for challenge. Tune in to hear about the latest trends shaping Cambodia-related arbitrations, along with practical advice for practitioners navigating this dynamic jurisdiction.
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Transcript:
Intro: Welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Joyce: Welcome to the latest episode of our Arbitral Insights podcast series. I'm delighted to have Guillaume Massin as my guest today to share with us some Arbitral Insights from Cambodia. Guillaume is the head of the European desk of DFDL. He was previously managing director of DFDL's offices in Thailand and Cambodia, and he's currently a partner in the dispute resolution team. Guillaume has been based in Southeast Asia for almost 20 years, and he has extensive experience in facilitating foreign direct investment into the region. Good afternoon, Guillaume. Thank you for joining me on this podcast today.
Guillaume: Thank you, Joyce, and thanks to Reed Smith for organizing this very interesting session. We're really delighted to be part of this podcast program that covers not only Cambodia, but the entire region where we operate. and I'm happy to be in touch with you, and I'll make this as interesting, as informative as possible.
Joyce: Well, I'm looking forward to our discussion already. To kick us off, why don't you give us an overview of the arbitration landscape in Cambodia? Are there separate legislations for domestic and foreign arbitrations?
Guillaume: Sure. Well, everything started in Cambodia in years 2000, 2005. Cambodia has been quite open, tried to be quite open to foreign investment, and as part of that, tried to make arbitration as a way to protect investment in Cambodia. So we have a 2006 law on commercial arbitration, which actually covered the implementation of the New York Convention. We also have the 2007 Code of Civil Procedures, which also provides key, covers the key aspects of the enforcement of arbitral award. So it's basically, for international awards, it would be more the 2006 Law on Commercial Arbitration, and for domestic arbitration, it would be more the 2007 Code of Civil Procedures that would be the key legislation. In terms of the model, Cambodia has been relying on UNCITRAL, so Cambodia is a party to the New York Convention. From 2009, Cambodia has taken steps to create its own arbitration center. And that was modeled, including for the rules of the National Commercial Arbitration Center of Cambodia. It was modeled after the SIAC rules, so directly linked to the UNCITRAL model for that matter.
Joyce: That's really helpful to know. I hadn't realized that the SIAC assisted with drafting the institutional rules for the National Commercial Arbitration Centre. Since arbitration is relatively new in Cambodia, how is it perceived by the local business community? Do you often see arbitration agreements in contracts?
Guillaume: So where are foreign parties involved? Yes, most likely there would be an arbitration agreement. There are still some matters where there could be skepticism from local parties about arbitration, or some matters where enforcement would be more difficult with arbitration, including for enforcement of securities, for instance. But generally, arbitration is well accepted in Cambodia. You're right to say that it's fairly recent. In fact, the arbitration center in Cambodia has been up and running. There have been several intakes and developments with new promotions of arbitrators for the past 10, 15 years. So it's been really part of the picture and really open to the business community, let's say, practically speaking, since 2014, 2015. So we have maybe a 10-year track record, and we see that it's more and more used, including for domestic arbitration.
Joyce: Yeah, what you've just described is consistent with the position in many developing countries, as you know, it takes time and effort to educate not just the lawyers, but and arguably more importantly, the contracting parties and judiciary about arbitration and its benefits. Even what we've just discussed, is it common for parties to nominate Phnom Penh as the state of arbitration? And when might parties do that? And what are the advantages of selecting Phnom Penh over, say, Singapore or Kuala Lumpur?
Guillaume: So, indeed, the arbitration in Cambodia, as we said earlier, is administered by the National Commercial Arbitration Centre. And it is generally perceived as being, again, when a foreign party is involved, depending on the type of transaction, but as being a process that is more straightforward and cost-effective, including compared to cost-related to court proceedings. As for the choice of seat of arbitration, it would also depend on whether there's a local party involved in the proceedings, depending also on whether assets would be located in Cambodia. But of course, as you can expect, domestic arbitration is usually cheaper than the international arbitration. And for that matter, it's quite clear that there could be a preference also for local parties in Cambodia to choose Phnom Penh as the seat of arbitration.
Joyce: For foreign parties, at least, one of the factors which determine C's attractiveness is the local court's willingness to uphold and support the arbitration process. Now, would you describe the Cambodian courts as being generally pro-arbitration?
Guillaume: In practice, courts would tend to be willing to keep the proceedings locally within the courts. But once arbitration proceedings start, or once there's an arbitration agreement that is raised in a dispute, the court would generally favor arbitration. There is still an option if both parties still agree to go to court instead of arbitration, they can still elect to do so even after the dispute has started. But generally, again, the courts would recognize arbitration as a valid process.
Joyce: That's really positive to hear that the Cambodian courts respect the autonomy of parties to enter into arbitration agreements. On a slightly related note, can Cambodian courts issue orders such as injunctions or asset preservation orders in support of both domestic and local arbitrations?
Guillaume: Yes, to be clear, both local courts and our arbitration tribunal can issue injunctions. It could be done also through the local arbitration center. And indeed, it's quite frequent that a case would start with preservative relief being sought locally in Cambodia through court proceedings and then referred to arbitration as a main case. The courts would actually recognize that process. There is always a risk that because you start with the courts in Cambodia, then it can continue with the courts. But if one party really makes clear that the entire dispute should be referred to arbitration, then arbitration will kick in at some point.
Joyce: Okay. Yeah. I think it's really good to understand that the Cambodian courts really respect the party's decision to arbitrate. So if I may, let's now move on to another hot topic, enforcement. How long does it normally take to seek recognition and enforcement of foreign awards in Cambodia, and what might this process look like?
Guillaume: Well, as we said, Cambodia is a party to the New York Convention, so it would enforce arbitral awards within re-examining the merits of the case. In practice, recognition and enforcement could take from six months to, let's say, two or three years. That would be depending whether all legal avenues to potentially appeal have been exhausted. Because once you get in the recognition phase, so you go straight to the recognition enforcement by the Court of Appeal in Cambodia, but then there could be a further appeal. And in certain instances, it could go to retrial, so back and forth between the Appeal Court and the Supreme Court. And this is where it might take longer. That being said, we see that in many instances, awards are voluntarily executed at some stage, and also may involve a settlement.
Joyce: So just to be clear, you mentioned earlier that recognition and enforcement proceedings can take from six months to two or three years if all legal avenues to appeal are exhausted. Are you saying that, assuming that a party who doesn't want to pay attempts to appeal, it takes up to three years, and within three years, parties would get closure on whether or not the award would be enforced, or are you saying that two to three years at the first instance, and then you get more time to appeal to the Supreme Court after that?
Guillaume: No, it would be, in fact, the first instance would be usually about six months as we voted. Then there might be some public order grounds that can be raised, including by a local party. We try to delay the implementation and enforcement of an award. So that's where it might go to the next stage. However, in practice, we've seen that, It is only, in most cases, the local courts will still try to expedite the process for the recognition of the arbitral award because they will not change the outcome of the award.
Joyce: Understood. Understood. You mentioned earlier you referred to delay tactics and public order objections. Are these the types of grounds that parties rely on to challenge recognition and enforcement in Cambodia? are you able to share some of the common tactics that parties use when they're trying to avoid having to pay up under arbitral awards?
Guillaume: Yes. So public order is something that, as you might expect, could be interpreted very broadly. So there might be a number of grounds that are raised. Including the fact that there are some, in the event of an arbitral award in relation to a transaction which was not governed by Cambodian law, there could be an argument that at the enforcement state that because the scope of the transaction involves some assets in Cambodia or involved parties in Cambodia, then certain section of the transaction should have been governed by Cambodian law. In which case, what a local party may try to do is to try to get a Cambodian course challenging the fact that the initial award was only rendered based on a foreign law. In practice, it would not work, but they would probably still try, right? In the case of a dispute that is subject to Cambodian law already, there's probably less room for that. But again, you could have a situation where the main transaction is governed by foreign law and you have a section of like the security, for instance, enforcement of security. Would be governed by Cambrian law. In that case, there could be a mix of both, and that will also help the local party to try to raise argument to resist the recognition or enforcement of the award. We've seen that in a few instances. What we usually do when we work for a claimant in the enforcement of an arbitral award, we, of course, keep all these local tactics in mind. And from the start, But we just make sure that the filing, that the local filing with the court for recognition enforcement takes into consideration possible grounds that would be raised by the other side in relation to public order grounds. And we'll try to make sure we'll reject those grounds or make sure that we argue in a way that is in favor of the claimant for the recognition of the arbitral award.
Joyce: Yeah, what you said is really interesting. I completely agree that it's important to prevent attempts by parties who try to use delay tactics to delay the enforcement of their wards. You mentioned also the certain procedures that you take when filing for recognition and enforcement to avoid, to reduce the ability of local parties to rely on these delay tactics. Is there anything else that parties can do during the arbitration itself maximize the chances of a successful enforcement in Cambodia?
Guillaume: Yeah well basically everything starts at the time when the transaction is still underway so before it closes before it completes. So ensuring that the arbitration close in the contract is clear ensuring that you don't have as part of the same transaction or project, two different agreements where there could be one agreement subject to local courts and another agreement subject to arbitration, because then there could be a risk that local courts will find themselves having jurisdiction based on the first agreement. So making sure that from the start, the arbitration closing the contract and all the contracts that might be related to the transaction is clear. So that whenever entering into an M&A deal, you start with an NDA, you have a term sheet, you have an SPA, make sure that all the three are aligned. Otherwise, there might be if just one of the three agreements, and usually the term sheet or the NDA are drafted as a very early stage when things are not definitive. So if there is no clear arbitration provision from the start, then it could be potentially challenged later on. So that's really, really important. Another recommendation is, yes, when you start with a dispute, at the beginning of a dispute, there's potentially a recourse to local injunctive relief. We want to make sure that the courts are aware that it's just injunctive relief that's going to be subject to their jurisdiction and not the main case, there could be an assumption locally, and a local respondent or a local party involved in the dispute may try that, that the local party would attempt to have all the issues at hand in a dispute assessed during the injunctive relief proceedings. So it will try to have a main case, arguments for the main case, included in the injunctive relief proceedings, then, the injunctive relief decision might also impact the main case and might be contrary to the principle of having the case resolved through arbitration at a later stage. So that's also quite important.
Joyce: That's very interesting. Thanks again for these helpful tips. A final question as we wrap up our conversation today. Are there any trends in Cambodia-related arbitrations which our listeners should be looking out for?
Guillaume: Yes. So for both domestic and international arbitration, I think it's being favored really for a more sophisticated matter where there is a foreign element. So when, depending on the size of the transaction, the amount in dispute, or when things are fairly technical, When we're talking about new commercial practices, implementing transactions that are similar to what is being developed in Singapore and Cambodia would not be really familiar with, then in that case, the trend is to go to arbitration because we estimate that the local practitioners, judges, and lawyers would not be really familiar with the scope of these transactions and very long transaction documents. Also, it's quite natural, but in Cambodia, if you do a court filing, you will have to translate all the documents and supporting documents in Khmer. So when there is a foreign element and you're relying on transaction documents in English, you will tend to favor arbitration because it would be a lot more practical to use documents that are already in English.
Joyce: And obviously, Khmer might not have the specific words for the specific transaction that you're trying to achieve.
Guillaume: Indeed. That's usually quite the case, again, for very specific matters. And it is very technical matters. And it is better to start resolving the dispute by arbitration. You can use foreign experts. You can also use local experts, including in a foreign arbitration. So the local element will always be there. But it would be probably better to have a forum that is able to handle the dispute in English than just in command.
Joyce: And I think, Guillaume, you mentioned to me previously that the mushrooming of specialized courts in Cambodia, which might take away work, so to speak, from arbitration. Are you able to share a bit more on that?
Guillaume: Yeah, I think there's been an ongoing trend. Everything we've described in terms of the implementation, including of the National Arbitration Centre and the Commercial Arbitration Law, since the early 2000s, there's been a trend where Cambodia has tried to redevelop or update its legal framework. And as part of that, the Ministry of Justice has tried to implement dedicated courts. So for instance, the commercial court, which has been a project that's been ongoing for maybe 20 years. And probably the Cambodian authorities had to wait for more judges to be appointed, the newer generation. And this is all coming as well. So there would be also some local alternatives that are dedicated to resolving disputes, maybe simpler disputes or disputes of a more limited size in terms of the disputed amount and going through local courts, specialized courts. That's also going to be an option. But all in all, I think with the most sophisticated matters going to arbitration, arbitration has also helped raising the standards. So the courts will also know, I think courts would take example on some of the cases that have been resolved through arbitration or some of the matters that up to now have been resolved through arbitration, including through local arbitration, to build up their capacity in terms of dealing with specialized matters in specialized courts as well.
Joyce: That's interesting. Guillaume, thank you so much for joining me on this podcast. This has been really insightful. Thanks again and have a lovely evening.
Guillaume: You're welcome. It was a pleasure.
Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Read Smith LLP.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular or lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker.
All rights reserved.
Transcript is auto-generated.
Shahwar Jamal Nizam, Partner and Managing Director at DFDL Bangladesh, joins Joyce Fong to provide insight on the arbitration regime in Bangladesh. This episode delves into the availability and enforcement of interim measures in support of arbitration, the procedural steps for enforcing foreign arbitral awards, and the judiciary’s increasingly pro-arbitration approach. Shahwar also examines common grounds for challenging enforcement, providing practical examples and advice for parties navigating the Bangladeshi arbitration landscape, supported by illustrative case studies from recent practice.
Esha Kamboj, attorney-advisor for Asia-Pacific with the U.S. Department of Commerce's Commercial Law Development Program, joins Rebeca Mosquera to share her professional journey from private legal practice to her current governmental role. She discusses the motivations behind her transition, the skills and experiences that shaped her approach to international arbitration, and the evolving ADR landscape in the Asia-Pacific region.
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Intro: Welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Rebeca: Hello, everyone, and welcome to another episode of Arbitral Insights. Today, I'll be your host. My name is Rebeca Mosquera, and I am an attorney at Reed Smith here in New York. And today, we have the pleasure of speaking with an incredible guest who has made remarkable strides in the world of international arbitration and ADR. Joining me is Esha Kamboj, attorney-advisor for the Asia-Pacific Region Team Commercial Law Development Program of the U.S. Department of Commerce. Esha, welcome to the podcast.
Esha: Thanks so much for having me, Rebeca. Thank you for the lovely introduction. It's my pleasure to be here today.
Rebeca: Well, let's dive in into things. And to kick things off, Esha, could you share a bit about your background and how you got into international arbitration? What was your practice focus when you first started?
Esha: Yeah, of course. So my background really is in international arbitration and private practice for about seven years before moving over to the U.S. government. And how I got into international arbitration is, I think, an interesting story. I grew up in the Bay Area in California with immigrant parents from India, and I had kind of the pleasure of having a lot of family all over the world. And so each of, you know, whenever we would go on a family trip, it would be to visit a different family member in a different part of the world, whether it was in India or parts of Europe. So I really had the benefit of growing up with a very global experience in terms of meeting different types of people, learning about different cultures, foods, etc. And so I was always very much interested in kind of international policy, international law, and focused my undergrad degree in global studies. And then, you know, shortly thereafter, did the teaching assistant program in France via the French embassy. So I taught English in a high school just outside of Paris for about a year prior to going to law school. And, you know, I didn't really know too much about international arbitration before law school. There aren't a lot of lawyers in my family. But I learned a lot about it when I went to law school and had really focused my curriculum on international law. And it really stuck out to me as something that was incredibly interesting. You know, I wouldn't say a newer area of law, but definitely younger than many other practices. And really pursued firms during on-campus interviews that had dedicated international arbitration practices within the firm. So that kind of led me to Norton Rose Fulbright, where I did my summer internship as well as my first year in their New York office before I moved to Washington, D.C. And over the course of the next six or seven years, I did a lot of international arbitration, including investor state disputes, commercial arbitration, and a lot of large-scale kind of commercial litigation. So that was the private practice part of my career and how I kind of transitioned and got into international arbitration in the first place.
Rebeca: That's fascinating, Esha. I mean, you've basically grown to some of the most, maybe we call it epicenters of where, you know, international arbitration develops today. So you established yourself in private practice, right? But what inspired you to make the transition to your current role? And was there something specific that drew you from private practice or the governmental side of, you know, international arbitration and ADR?
Esha: Yeah. So, you know, as I mentioned, I've always been interested in foreign policy, specifically like public international law. But when I was at the firm, you know, I never really had much thought about transitioning into a government role. I think it really came to a head when I was in my sixth and seventh year when I was kind of a senior associate and I had to decide at that point if I wanted to pursue partnership at the firm, which would entail me starting to build my book of business, doing a lot of networking, doing a lot of training to be able to apply for that role, or if I wanted to kind of transition out of private practice and maybe try something new. I knew I've only ever been in private practice and so I didn't really have a lot of experience as to what other international arbitration adjacent jobs there could be. How I ended up at CLDP is kind of by happenstance, in fact. So while I was going through this, what should I do with my life? Should I move on to partnership in private practice or should I do something else? I was asked to actually be an expert for CLDP. So they asked me to do a short video on how to draft an International Arbitration Clause. And following that, I learned about this division, learned about the great work that they do, and was so interested in it. And that's kind of joined their office from there.
Rebeca: So it all began with an arbitration clause, basically.
Esha: Yep, it did. It sure did, as many things do.
Rebeca: Very good. I mean, that's incredible. I really like hearing that. And obviously, it's always, to me, right, it's very interesting to hear about those pivotal moments in a career. I have done many myself as well. I mean, being an immigrant myself and having worked in-house and then in private practice, I understand how sometimes those pivotal moments just come out of the blue or based on a knowledge that you had. So, you know, it's just really, they shape the person that you are. And maybe sometimes we didn't quite understood certain training or certain things that we were going through until we get to that other position. And we're like, oh, now that's very useful, what I learned back then into the current role I am. And so speaking of transitions, how would you say your practice has evolved, right, from that private practice to the governmental role, especially now with the work that you do in the government focused on ADR?
Esha: Sure. So let me give a brief background as to what my current role is and how ADR fits into that. As I said, I focus my private practice on international arbitration, representing states and the private parties and the private investors in international disputes. And what the Commercial Law Development Program really does is, and we've been around since 1992, just after the fall of the Soviet Union, and the purpose is to ameliorate or improve the commercial environment or legal environment for businesses worldwide. What that means depends on the region that you work in. So as I said, I work in the Asia-Pacific team. We focus on the Asia-Pacific region, and there are various other teams that focus on other regions. We've got the Latin America team. We've got a Middle East, North Africa team, Europe, Eurasia, Sub-Saharan Africa, et cetera. And the focus of what we're doing within each country depends on a multitude of things. One, what the country's needs are, and also what our foreign policy directives are from the State Department. Our whole point is we are a legal office that really helps with infrastructure development, specifically in the Asia-Pacific. So we are looking to really accelerate U.S. business investments in critical infrastructure in Asia and protect those investments, you know, through legal protections. So what we, and the kind of the purpose of this and why we do this in part is because there's a huge infrastructure gap all over the world and specifically in the Asia Pacific. And I'm talking critical infrastructure, port infrastructure, airports, you know, bridges, roads, et cetera. And that infrastructure gap, you know, these host governments are looking to fill very, very rapidly. And so they're seeking investment at a rapid rate. And for the last 10 years or so, the People's Republic of China, the PRC, has been very diligent about filling that investment gap. And so they've. Funneled billions and billions of dollars of financing into large-scale infrastructure projects all over the world via the Belt and Road Initiative. On our end, the U.S. government doesn't do that. We don't funnel billions of state-backed bank money into infrastructure projects in other countries. But what we do at the CLDP is we kind of make it so that private investment from U.S. Businesses can be funneled into these investment projects. And we do that by making sure that the legal landscape in the country that we're working in is conducive to attracting and protecting that investment. Often that takes the form of making sure the project finance mechanisms are in line with international best practices, you know, making sure that there's regulations like a public-private partnership law or, you know, good government contracting processes, again, that are in line with international best practices that will then attract U.S. Investment and also then ensure a return on investment for those U.S. Businesses that are investing in this infrastructure. And how arbitration kind of fits into that? Well, ADR, Alternative Dispute Resolution, is very important for these large infrastructure contracts. Because if you're, you know, from an investor's perspective, you probably don't want to be fighting out a dispute in the local court of a country. You know, a lot of those courts are very bogged down. It can take a long time to resolve. And so ensuring that these infrastructure contracts have arbitration clauses and that the judiciary follows the New York Convention enforcement of arbitral awards and that the government officials that are working on these infrastructure projects have some experience with dispute resolution in terms of arbitration as well. So that's the type of work I do for arbitration.
Rebeca: It's absolutely interesting. I obviously didn't have much of the background of this is a huge machine, basically. And what I understand is that there are different groups, right? You focus in Asia Pacific, you have Latin America, the Middle East and such. And so you spoke about how you ensure or how the team ensures that there is the legal landscape and project finance and all of these details and building blocks are in place for U.S. foreign investment to feel safe to go into all these different places. How do you accomplish all of that? You know, what kind of mechanisms do you use in this region to ensure that that is a, you know, it's an infrastructure that is in place for U.S. investors to go in there and say, look, I am interested, I feel safe in this environment? What does specifically your team, what have you done and what you do?
Esha: Yeah, that's a great question. So what we do is we do directly government to government assistance. So we will partner directly with the foreign host government and we'll start our, you know, any type of work stream that we do. And again, these work streams are, they're kind of directed by the directives of the State Department based off of foreign policy goals. So we really work with the State Department to decide what the foreign policy goals are in the country. And then we will conduct an assessment, a legal assessment ourselves. So I will go, for example, in country, meet with various ministries, conduct a legal assessment about the specific sector that we're trying to work on. For example, it might be alternative dispute resolution. So we might want to improve the environment for our alternative dispute resolution. It might be government contracting in the port sector, in which case I might meet with the port authority of the relevant country. And so I'll conduct this kind of legal analysis, gap analysis, to see what kind of practices and procedures and regulations and laws are missing, lacking, could maybe use some improvement. We'll then go back and create kind of a work plan of what we're trying to achieve long-term within the scope of our agreement. And we will then go seek willing partners within the host government. And, you know, that can sometimes be challenging because it's not that all government agencies across the Asia Pacific are always willing to, you know, receive assistance. But that is something that is really important to have a willing partner on the other side. And so we'll ensure that we partner with a willing partner, a willing government agency like a port authority, maybe the Department of Transportation of a specific country that really needs our assistance. Once we do that, we will work with that government agency or entity to really try to push through the changes that we see as important. And that might involve a lot of training of the government officials to get them on board to understand why the practices that we think should be pushed are important to be included in there and the way they kind of do the government contracting.
Rebeca: Now, that's very interesting. And also sounds like you do have to understand some of the culture and how to connect with these people. And I know, based on what I know about you, it was precisely because of an invitation that I received to go and give some of these trainees in Sri Lanka last year. And so I know you've done some work in Sri Lanka and Thailand, and I just want to know if you can probably, you know, for our audience, if you can tell us a bit about the key takeaways from your experience working in those jurisdictions.
Esha: Yeah, of course. And, you know, it's funny you mentioned the cultural aspect because it is a big thing to consider. And it is a huge change, I think, from private practice where you're dealing with a lot of kind of private clients to now dealing with mostly government officials with various different cultural differences and, you know, having to respect those traditions and learning about them and making sure that you are not being disrespectful in any sense and making sure that the, Ensuring that it's as much of a partnership as possible. So that's a really big part of my job and kind of working on that diplomacy aspect. But in Sri Lanka and Thailand specifically, so the countries I focus on are really Sri Lanka, Thailand. The Philippines. And, you know, the Sri Lanka event that we did that I wish you could have joined for was a great one. So the purpose of that was to kind of bring together arbitral institutions across the region for information sharing. And this was really to make sure that the arbitration, arbitral institutions in various countries, like we invited the Mumbai International Arbitration Center, the Thailand Arbitration Center, the, you know, the SIAC, we had folks from Malaysia, Nepal, etc. Pakistan, I could go on. And we pretty much got them all in a room together and had them share what their institutional practices were and what the rules were and what type of things they saw that worked for their institutions and what didn't work. And what we see from this kind of information sharing is just betterment of practices across the board. So that's kind of what we did in Sri Lanka. And in Thailand, I'm far more involved in the actual policy making or trying to push some policy changes for the landscape for alternative dispute resolution. So there, I've been working directly with the attorney general's office, trying to get, for example, arbitration clauses in their model contracts, and trying to work with the judiciary on enforcement of arbitral awards, because often what happens in Thai courts is we've seen, for example, re-litigation of arbitral, the merits of an arbitration during the enforcement processes, specifically where the government is a party, the Thai government is a party. Some of the judges will tend to favor the government. And so we will try to kind of. Work with the judiciary there and work with the attorney general's office to make sure that they're kind of pushing a pro-arbitration policy as the U.S. does.
Rebeca: No, and that's really incredible in the sense that your work not only has touched so many different regions, but you're really shaping them with the work that's been done. And that's incredible. I think, at least from my experience in Latin America, one of the most, you know, complex things is always to work with the judiciary for them to understand how and why arbitration or alternative dispute resolution might not be a competition to them, but, you know, mostly a cussing or something that they can rely on at times. So I, you know, I'm very fascinated by the work that you're doing. But now I want to shift gears just a bit. And I would like to, you know, I would love to know who's been your biggest career or personal inspirations along this journey, right? You've come from private practice, obviously coming from immigrant parents, establishing in the Bay Area. I'm sure that you've had plenty of, you know, personal inspirations, but if you could mention, you know, one or two, what would those be?
Esha: Yeah, you know, I've always been very inspired by the strong women in my life. I think that's something that has pushed me to kind of pursue the career I have. I'm, again, very lucky to have had a mother who is very passionate, who was very passionate about her career, but was also, you know. An excellent mother and could do it, basically do it all. And so I think my biggest role models are the people in my life personally that I know and I've seen the way that they handle adversity and I've seen the way that they kind of move through life and make it seem easy even though it's not. And so, as I said, my mother was a huge inspiration to me growing up, having moved from India at a very, very early age to a family that she didn't really know that well and having a career in corporate finance her whole life and kind of making all of that work and still managing to maintain boundaries and to be a good person, et cetera, all the things that you need. And now I'm very blessed to have my mother-in-law in my life, who has been an inspiration to me for the last 10 years of knowing her because, again, very strong woman. She worked at the World Bank her entire career and raised three lovely, intelligent, great children, including my husband. So women that I know that have really just made it have been my biggest inspiration.
Rebeca: That's amazing. And honestly, I can relate. My mom was and continues to be one of my biggest inspirations. I mean, you know, the things that they have had to face in order to be the professional women that they were and raise the family that they have is just, you know, commendable and nothing short of extraordinary, to be honest. So I completely can completely relate. And so I would like to maybe also, you know, come just make it a little bit more personal. If you, Esha, were not an attorney, who would you be?
Esha: You know, this is an interesting question, especially for attorneys, because I feel like our lives are just, you know, so surrounded by just the law. It's hard to think about doing anything else, especially in private practice when you don't have much time. But one thing I've always really loved is food. I love cooking. I love creating menus. And I, you know, I find creativity through food has been always really fun for me. So I've always thought that if I were not an attorney and if I weren't doing what I was doing, I might try to go to culinary school and, you know, make it as a chef, which sounds like a little bit more brutal than even private practice.
Rebeca: It certainly does. But you know, now that I know that you love creating menus, I'm just going to hop on a train from New York to D.C. And I will just go and taste the food that you create.
Esha: Well, you know, Rebeca will both be in Paris for Paris Arbitration Week. So perhaps you can enjoy some food together while we're in the city that makes the best food.
Rebeca: Absolutely. I would love that. I would love that. And well, Esha, I mean, thank you so much for sharing your experiences and insight with all of us today. I honestly feel that your journey has been and it is so inspiring. And I'm sure our listeners feel the same. And, you know, before we wrap up, is there anything else you would like to share or any advice you would like to give to those navigating their own paths in international arbitration and ADR?
Esha: Yeah, of course. You know, I think it's really important to be open-minded, right? I wouldn't have ended up in the situation I was if I weren't open-minded about my career. There is more than one path to success, and that doesn't always look like a law firm or the government or an NGO or an international organization. And it's really what you want to do that is going to make you happy. I loved private practice. I loved practicing international arbitration. And I also love what I do now. So you'd be surprised if you just take a chance. So that'd be my advice.
Rebeca: No, absolutely. I couldn't agree more. I mean, everyone needs to have their own meaning of success. And most of the time you get there and it's your own journey. It's not linear and it's okay. Right?
Esha: Exactly.
Rebeca: So, well, thank you again, Esha, for joining us on the podcast. It's been an incredible pleasure speaking with you. And thank you to our listeners for tuning in. Stay tuned for more conversations on Arbitral Insights. Until next time.
Esha: Yeah, thank you for having me. It's been such an honor to be here.
Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's Global International Arbitration Practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP.
All rights reserved.
Transcript is auto-generated.
As the Hong Kong International Arbitration Centre celebrates its 40th anniversary, Reed Smith’s J.P. Duffy welcomes Secretary-General Joanne Lau to discuss the center’s major milestones, including the launch of its Beijing office and the updated 2024 rules. J.P. and Ms. Lau explore trends in the HKIAC’s caseload, its goals for the next five to 10 years, and its strategies for maintaining its leadership in dispute resolution across the Asia-Pacific Region and beyond.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
JP: Welcome back to the next episode of Arbitral Insights, in which we'll discuss recent developments at the Hong Kong International Arbitration Center with Joanne Lau, who is the HKIAC Secretary General. I'm JP Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai, where I previously practiced. I routinely represent clients in arbitrations involving China and East Asia, and I also have the good fortune to be listed on the HKIAC Arbitrator panel. With us today is Joanne Lau. Joanne is the HKIAC Secretary General and Principal Officer, which is a role she assumed just about a year ago in February 2024. Prior to becoming the HKIC Secretary General, Joanne was an international arbitration partner at Allen & Ophrey in Hong Kong, where she practiced for over a decade. Joanne brings a wealth of experience with us today and a wealth of information, and we're really lucky and grateful to have her speaking with us. So thank you, Joanne, and welcome.
Joanne: Thank you for having me.
JP: Great. Well, we're so glad you can join. Let me begin just by setting the table a bit and giving a bit of background information on the HKIAC. While it doesn't need any introduction because it's so well known, there may be listeners in the U.S. Or elsewhere that are less familiar, so I'll just start by giving a bit of background there. Celebrating its 40th anniversary this year, the HKIAC is an independent, not-for-profit arbitral administrator that was established in Hong Kong in 1985 by a group of leading business people to provide dispute resolution services in Asia. It provides a full range of alternative dispute resolution services, including arbitration, mediation, adjudication, and domain name dispute resolution. Joanne will discuss them in greater detail later on, but the HKIAC also has some of the most modern and innovative arbitration rules in the world, having just updated its rules last year that took effect on 1st June 2024. The HKIAC also offers state-of-the-art hearing facilities that were ranked first worldwide for location, value, IT services, and staff helpfulness. To give you an idea of how prominent the HKIAC is globally, the 2021 Queen Mary Survey, which most listeners will know, also found that the HKIAC is the third most preferred used arbitral institution globally. And in 2023, it received more than 281 arbitration cases, with a total amount in controversy of approximately $12.5 billion. Around 90% of the administered cases are international. So clearly, the HKIAC has accomplished amazing things in its first 40 years, and we're really lucky to have Joanne tell us more about it. So with that, let's turn to Joanne so we hear more from her and less from me. And let's start by talking about the HKIAC's caseload a bit. Joanne, the HKIAC is one of the most transparent arbitral organizations in the world, and it publishes detailed case statistics on its website. But I'd like to dig into those statistics a bit more for the audience's benefit. While the HKIAC administered cases involving parties from 45 jurisdictions in 2023, what were the top three jurisdictions in that year?
Joanne: Sure. And I might be a bit greedy here talking about more than three jurisdictions. But just to answer your question first, in 2023, our top jurisdictions, first of all, unsurprisingly, is Hong Kong, Hong Kong parties, followed by mainland Chinese parties. Again, I think that one is unsurprising. And then at 3, 4, 5, 6, in that order, BVI, Cayman Islands, Singapore, and the United States. I would say these are pretty consistently featured in our most popular jurisdiction. So 2023 was similar to the previous several years in terms of parties who often submit cases to HKIAC.
JP: Joanne, you mentioned the Cayman Islands and the BVI as some of the top five jurisdictions, I think. What's the reason for that?
Joanne: For BVI and Cayman Islands, a lot of those entities from those places, they could be investment vehicles. I think quite a lot of them also have Chinese shareholders or Chinese interests, although not exclusively so. So I think that's one of the reasons why BVI and Cayman feature heavily in our caseload.
JP: Got it. So it's a function of offshore Chinese investment structures that parties typically use. Is that right?
Joanne: Yeah, correct. And I think another reason is to also look at the types of cases that HKIAC gets. So we do have a lot of shareholder disputes or post-M&A disputes. And especially when it comes to, as we discussed earlier, some of the China-related transactions, parties often choose to structure those through offshore vehicles. So hence, you do see BVI and Cayman entities in those transactions and consequently those disputes as well.
JP: Yeah, that's really interesting. I've certainly done HKIC arbitrations that have involved that structure, which is why I asked, because I think it's a surprise sometimes to people in the U.S. To see that that is so common. Now, you mentioned as well, I think some of the other jurisdictions you mentioned were the U.S. and Singapore. Let's start with Singapore. How often do you see cases involving parties from Singapore?
Joanne: Pretty regularly. And I think if you look at parties from Asia, Singapore is the active economy, large economy in Asia. So it's not surprising that we have lots of cases from Singaporean parties. The other one, I would say, you know, South Korea and Singapore might be the two most common Asian parties that we see in our cases. So yeah, we do see those pretty regularly.
JP: That's really interesting, given that both jurisdictions have their own arbitral institutions or arbitral institutions that are associated with them. Is that a function typically of the counterparty to the dispute, do you find?
Joanne: I would say sometimes, but not necessarily so. So we, in terms of our case law, I think around 40% of our cases would involve one mainland Chinese party. The remaining 60% don't have any mainland Chinese parties. So I think you're right that in a number of disputes with Singaporean parties or South Korean parties on one side, you might see a mainland Chinese party on the other side. And HKIAC would be a very natural choice of arbitral institution in those cases. But then we also see some cases, say, between a Singaporean party and another, say, Southeast Asian jurisdiction or between South Korean party and a party from elsewhere in the world. So there's a variety, although I think you're also right that in disputes which involve one mainland Chinese party, there may be even more reason for parties to think of Hong Kong and HKIAC.
JP: Got it. Got it. Well, that's still a very strong endorsement for the HKIAC as a strong arbitral institution in the region that people would choose. That's a really interesting figure. Now, you also mentioned the U.S. being one of the top five or six parties. Is that a trend that you have seen continue in the years, or is that a trend that's increasing? What's the trend there that you're seeing?
Joanne: I would say that's a pretty steady, it's a very steady observation. So US features quite consistently in our top 10 popular jurisdictions throughout the years. There are a lot of US, China investments and transactions going on. And, you know, despite some geopolitical tensions in recent years, I don't see that changing. And that I think, you know, US and China, they will continue to be very active, strong economies. So I do foresee that we'll continue to see US being in our top 10 jurisdictions. If you say whether we've seen any particular changes in parties in our cases, I would say maybe in the past two, three years, we've seen more activity from Middle East. I think that's one. The other one is we've also been seeing some cases with the Latin America connection. And again, going back to the types of cases that HKIC often handles. And by that, I mean, you know, where the Chinese investments are going. I think the reason Middle East and Latin America has come up more may also be a reflection of the fact that there are a lot of Chinese investments going to these parts of the world.
JP: That's fascinating. I want to talk in a minute about what industries you're seeing there, but let me focus for just a second on, take those in pieces. Let's start with the Middle East. Are there particular jurisdictions in the Middle East from which you're seeing more cases rather than less?
Joanne: UAE, yeah, we've seen, we haven't released our latest statistics yet. But to give you a teaser, I think UAE might be in our top 10 jurisdictions for 2024.
JP: Okay, great, great. Yeah, I would suspect that would be the case. You know, it's been a little bit since I've lived in the UAE, but that's a jurisdiction that even when I was living there, was seeing increased cross-border activity with China. So that's an unsurprising development, in my view. What about Saudi?
Joanne: Saudi, not yet last year, but I managed to make two trips to Riyadh last year. And there is definitely a lot of mutual interests on both sides, I would say. In Hong Kong, we hear a lot of businesses talking about the activity and opportunities in Saudi Arabia. And likewise, when I was in a Riyadh last year, there was a lot of interest in Asia. And we've also seen visitors from Saudi Arabia in Hong Kong. So even though we haven't seen it in our cases yet last year, it's certainly a jurisdiction that I'm very interested in exploring more.
JP: Yeah, I wouldn't suspect that it's far behind. It's a very, very, very active jurisdiction. So I'm certain the amount of time you're spending and the effort you're putting into it will certainly see results. Now, you mentioned Latin America as well. Are there particular jurisdictions in Latin America from which HKIC is seeing more parties? And are there jurisdictions that it would like to see more parties from?
Joanne: Yeah. So in Latin America, last year I made a trip to Mexico City, and we do have some cases involving Mexican entities. But apart from that, I think there are still a few places where we are seeing more activity and are hoping to see even more. Places like Brazil, Peru, there are more and more Chinese interests in those places as well. And I think, you know, with more transactions, it's inevitable that you also see more disputes. So we're hoping to be more visible in Latin America to capture those opportunities.
JP: That's great. That's great. And I'm sure that that will be the case because those jurisdictions are all very, very active. And certain jurisdictions like Brazil really do rely very, very heavily on arbitration, both cross-border and domestically to resolve disputes. So I'm certain that will be a fruitful exercise for you. Now, let's talk a bit, if we could, just about some of the industries from which HKIAC tends to see more cases. I know you said shareholder disputes, which is, in my experience, pretty common. Are there particular industries within the shareholder category in which you see more or less disputes?
Joanne: Yeah, I think in terms of shareholder disputes, some of the industry which have been generating quite a lot of disputes are the tech industry. And in particular, we actually thought, well, maybe cryptocurrency disputes are just phased and might end. But actually, the reality is even last year, we've continued to see crypto disputes. So tech is one big area and not just crypto, but fintech, like e-commerce. And the other one is like medical tech. Yeah, we've seen a lot of disputes, including shareholder disputes in those areas. The other industry is life sciences. I think last year we've seen quite a number of pharmaceutical disputes. So that's another big area. And then the third one, not necessarily shareholder disputes, but Hong Kong being a business commercial hub, we also get a lot of disputes in the banking and financial industry. Although not necessarily shareholder disputes. And just to maybe add on one point, it depends on how you categorize industries and cases, but across these different industries, when it comes to shareholder disputes, we see a lot of private equity investors involved in those shareholder disputes as well.
JP: Well, it's funny you mentioned that because the first ever HKIAC arbitration that I did as a young associate was a PE investment, a US PE investment in the tech sector. So I think that was actually routed, I think, through the BVI and the Caymans. I forget, I think it was called the WOFE structure, but that's a very interesting development. Now, you mentioned life sciences as well. Is there a particular aspect? You mentioned medtech, I think, as well, but is there a particular sector of the life sciences industry in which you're seeing more disputes?
Joanne: Not really, but like, say, licensing of drugs, that is one area where there's definitely some noticeable trend.
JP: Licensing disputes. Yeah, that makes a lot of sense as well. I do a lot of that work and I see a lot of people choosing both Hong Kong and HKIAC. Hong Kong is a seat and HKIAC is the administrator in the deal documents. So that's unsurprising as well and a good development. Now, are there particular industries that the HKIAC sees as underrepresented, like industries on which you would like to focus in the future and see more of?
Joanne: I think one of them, like we are already doing quite a lot of that, like construction, infrastructure disputes. I think they consistently feature in our top three or top four sectors in terms of numbers of disputes. But I feel like especially like from my trips to like the Middle East, that there are still so much more of those transactions where HKIAC can actually play a really helpful role in administering those kinds of disputes. So I do hope to see even more construction and infrastructure project disputes in the future. But other than industries, we also look at our opportunities through the lens of jurisdictions. So I mentioned Middle East and Latin America just now, and those are places where HKIC really wants to continue to invest time and energy in. But on top of that, I think I made quite a lot of overseas visits last year, but one place where I haven't managed to go yet and will definitely be doing so this year is Africa. I think there are a lot of opportunities in Africa and there is scope for HKIAC to build more presence there to introduce our services to Africa-based parties.
JP: Definitely, definitely. And if you look at the capital flows coming from East Asia and China in particular, Africa is certainly a critical location.
Joanne: Yeah.
JP: I mean, it's such a diverse area as well. I mean, it's a continent, so it's got any number of possibilities.
Joanne: I mean, it's not like one trip would do the trick, but it's definitely not. I think it'll take many, many, many trips.
JP: Well, no, I'm laughing because someone asked me the other day, they said, you know, can you give us an update on arbitration in Africa? And I kind of chuckled and said, you know, you realize it is a very, very large continent. So which part are you talking about? But that's, yeah, that's certainly, it's a very, very fruitful jurisdiction. Well, let's shift gears a bit then and talk about the new HKIAC rules that you released in 2024. Those took effect on 1st June of last year, if I recall. And they've got some really innovative aspects, what do you see as the most innovative aspect of the updated rules?
Joanne: I think, first of all, before turning to the innovative changes, one thing that has not changed is HK IAC has maintained what we call a light-touch approach to case administration. So even though we've reflected on it, we still do not have, for example, a formal award scrutiny process. So we're light-touched, we prioritize efficiency, we focus our energy on the appointment of arbitrator process, but then we leave the arbitrator to manage the process and we trust that they'll do a good job in award drafting. So that ethos has not changed, but there are a few changes, which I think are really interesting and have been very positively received by users. One is Article 13.6, where we added a provision to spell out the range of case management powers that a tribunal has. So we talked about how the arbitral tribunal may, in its discretion and after consulting with their parties, determine preliminary issues, they can bifurcate proceedings and conduct arbitration in sequential stages, etc. So what we want to achieve through that is to just encourage tribunal members to be a bit more assertive and tailor. Trying to tailor-made the procedure so that the case can be conducted as efficiently as possible. And I think having this provision here really encourages tribunal members to be a bit braver in not always adopting the same procedure, but really thinking through what makes the most sense for parties. The other one, which is very innovative and has been very well received, is our new Article 9A on diversity. And in particular, the first subclause talks about how the parties and co-arbitrators are encouraged to take into account considerations of diversity when designating arbitrators. And even just last year, since we've implemented the 2024 rules, we've already seen some change in behavior in that co-arbitrators, especially, they've been turning their minds more consciously and trying to come up with some names which they haven't tried out before. So we were very delighted to hear the positive feedback from adding this new Article 9A. The third one, I would say we've also added some provisions in relation to greener arbitration. So we expressly put in our rules that tribunals should take into account environmental impact when designing procedures of the arbitration. So that I think is very new as well, if you look across the globe of different versions of arbitral institutions rules.
JP: That's fascinating. And the diversity point is really important. So it's really great to hear that the HKIAC has taken it by the horns and really embraced it. And really great to hear that users and tribunals are embracing that as well, because that's really where the decisions get made. So wonderful to hear that. Now, one of the aspects as well of the new rules, or I guess the updated rules is the better way to say it, is emergency arbitration. Now, how does emergency arbitration under the 2024 HKIAC rules work?
Joanne: For the emergency arbitration procedures, we've had it for a very long time already. So the 2024 update is more a refinement of the procedure. So it remains the case that when an emergency arbitrator is appointed, he or she will need to issue a decision within 14 days. So that has always been the deadline and that has remained. But what we've introduced in the 2024 update is to provide for interim, interim relief. So what we've seen in the past is sometimes parties have a super, super urgent situation where they can't even wait for 14 days to get their relief. And emergency arbitrators, they might want to just issue a relief to maintain the status quo first, to hold the ring whilst they decide the emergency relief being requested. So what we want to make clear in our 2024 rules is that if an EA decides to grant this kind of interim-interim relief, they can do so pending the conclusion of the EA proceeding. So it avoids any kind of argument that, say, if the EA has granted this interim-interim relief, does it mean that their jurisdiction is then over? So it's to avoid that kind of uncertainty. and because we see it in reality in emergency arbitrator proceedings. So having that clarification is very helpful for parties, I believe.
JP: Yes, that is extremely helpful because I have faced that situation within the last two years where someone made that argument that what was effectively a procedural order to hold the status quo, there was really an interim EA award that terminated the EA's jurisdiction. It led to an awful lot of fighting. So it's very, very good to see that that's been taken into consideration. Now, there's also been some developments in the enforcement of EA awards between Hong Kong and the mainland. Am I right about that?
Joanne: Well, between Hong Kong and mainland, what we have is something called the Hong Kong-Mainland-China Interim Measures Arrangement. And that is the reason why, say, if a party wants to seek urgent interim relief in a China-related case, often they would seek to utilize the interim measures arrangement rather than emergency arbitrator relief. And just to provide a bit of context, in, say. Mainland China right now, there is still no mechanism or no express mechanism for a mainland Chinese court to grant interim relief in support of a foreign seated arbitration. There is also no mechanism in mainland China for the courts to enforce an emergency arbitrator relief. The only exception is if it's a party to a Hong Kong seated arbitration administered by certain institutions, including HKIAC, then those parties are able to rely on that interim measures arrangement to make an application to mainland Chinese courts to get interim relief from the mainland Chinese courts. So this has been in place since October 2019, and it has been very, very effective. So HKIAC has handled more than 140 applications for interim measures and And the total amount of assets frozen in mainland China by mainland Chinese courts under this arrangement is around 3 billion US dollars. So that is a strong reason why parties often think of HKIAC and Hong Kong SEAT when they are dealing with, say, a counterparty with assets in mainland China.
JP: Yes, that is a very, very, very important thing to keep in mind when people are structuring deal. So that's a very, very good endorsement for both Hong Kong and the HKIAC. Now, that's actually a good segue as well to talk about what some of the HKIAC's plans are outside of Hong Kong. Now, HKIAC has its principal office in Hong Kong, but that's not its only office. So the HKIAC opened, as I understand it, in Seoul in 2013. What was the impetus for opening that office?
Joanne: Yeah, so Seoul was our first representative office outside of Hong Kong. And back then it was quite a natural choice because South Korea has always been a jurisdiction where Hong Kong and HKIAC collaborated with a lot. So there is a vibrant dispute resolution community and the jurisdiction was supportive of international arbitration. It was developing quickly, going from strength to strength. So it was to help us get closer to the users and practitioners in South Korea. And that led us to open an office so we can collaborate more closely and to hear feedback. And it was the same in 2013. And I would say it's still the same today in that over the years, we still see Korean parties featuring consistently, regularly in our top jurisdictions. And we still see a very supportive and vibrant dispute resolution community in Seoul.
JP: Yeah, it is definitely an active jurisdiction. It seems to be getting increasingly more active. Now, that is obviously a great development in 2013. But the HKIAC has also opened an office in Shanghai that's celebrating its 10-year anniversary. And in December of 2024 HKIAC opened up a Beijing office if I'm correct, is that, Is that right?
Joanne: Yeah.
JP: Great. Well, tell us more about those offices then.
Joanne: Yeah. So mainland China is one of our big markets. And HKIAC, we play a unique function, I think, in bringing international arbitration and common law jurisdiction closer to mainland Chinese users. And by opening a Shanghai office in 2015, what we really wanted to do is to act as a bridge to help mainland Chinese practitioners and users to get to know international practitioners, international dispute resolution, but equally also to introduce international practitioners and international users to the practices and the stakeholders in mainland China. So by having a Shanghai office where we can host more events, conduct trainings, that has really served an important function for. HKIAC in achieving those objectives. For opening a Beijing office, that was a hugely exciting development for us. It happened just last month. I think it's also a reflection of just how, how. Like the extent of development that we've seen in mainland China and the opening up of the arbitration scene, because by opening a Beijing office, HKIAC has actually become the very first offshore arbitral institution to have an office in Beijing. And I think Beijing will serve some of the similar functions as our Shanghai office, in that it will also engage in capacity building, training, seminars. But on top of that, Beijing also has a very active group of state-owned enterprises who are interested in international dispute resolution. So there are more activities and opportunities that we can capture there. And for our Beijing office, we will also have hearing facilities. So say if in the future, say some witnesses or some parties want to make use of our Beijing office and doing some of their hearings, that is a possibility as well. So we're very excited about all the new things that the new Beijing office will bring.
JP: Well, that's great. And I know I've spoken to your staff about getting the director for the Beijing office in, and I think we're planning a podcast on that in the future as well. So looking forward to hearing more about that because it is a really, really impressive development. You've now been the Secretary General for about a year, and HKIAC is celebrating its 40th anniversary this year. So it's a natural time to reflect on past successes and to look at what the organization hopes to accomplish in the future. So as we get towards the conclusion of our conversation, I'd love to hear what you see as the future. What you think, well, let me start with this. What, you know, let's talk a bit about what you see as your accomplishments over the last year and then where you'd like to see the HKIC, say, in five years, 10 years in the future.
Joanne: On accomplishments, I must start by saying whatever accomplishments that HKIAC has achieved, it's always a huge, huge team effort. So very grateful for the whole Secretary's hard work in the past year. It was a big year for us because we did the ICA Arbitration Congress in May, followed by the Hong Kong Arbitration Week again in October. And both of these had record-breaking attendance. So I think that was a huge boost for us, especially after the pandemic. It was a very good time for us to introduce Hong Kong to those who may be less familiar with our jurisdiction and to just showcase the vibrant nature of the dispute resolution community in Hong Kong and also showcase what HKIAC has been doing. So that was fantastic. Yeah, the 2024 rules were published and well received last year. And we had a very busy year in terms of caseload. So that is very significant for us. And towards the end of the year, we set up the Beijing office. So again, that's a very encouraging highlight and a big milestone for us. I think looking into the future. What I hope to see and achieve, I think for arbitral institutions, of course, we need to spend a lot of energy in promoting dispute resolution services and educating users about international arbitration best practices. But on a day-to-day basis, it's so important that we continue to maintain the highest standards in case administration and in appointment of arbitrators. And that means always being efficient, always giving guidance. Parties, the assurance that institutions are completely neutral, completely independent. And I think that requires constant effort and dedication on a day-to-day basis. So that is something that the whole team at HKIAC is constantly focusing on. But aside from that, I think there are a few things that I hope to see even more in the future. I think one is the tech development. HKIAC was one of the first movers in having an online case management platform. But given how quickly tech and AI is developing, I think this is going to be an ongoing journey. So further digitalization, further use of technology and how we can help arbitrators and users adopt the technology that can help cases be resolved more efficiently. I think that is something that HKIC is very focused on and is really looking forward to doing even more of. I think the final thing is just looking at the arbitration landscape in Asia over the past few years. And I think this trend will continue. I think it's a fast evolving landscape. So I think in recent years, you see more participants in arbitration. Common law lawyers, but also civil lawyers as well. You see foreign lawyers in Hong Kong. But increasingly, you also see Hong Kong local lawyers participating in international arbitration. You see more mainland Chinese practitioners. It's not just solicitors doing arbitration work. We also see more barristers in Hong Kong. So what I hope HKIAC and I'm confident will continue to do is to play that role in bringing the community together and to build that up so that, you know, new generations, when they enter into international arbitration, they would feel that it's a very supportive, inclusive community and that we can all work together to continue the development of international arbitration and to make sure, you know, Hong Kong as a jurisdiction stays at the forefront. In all the innovative developments.
JP: Joanne, that's really great. Thank you so much for sharing all that. And as I say, we are going to be recording a podcast in the future with the head of the Beijing office. So we're looking forward to hearing more about that as well. That concludes our discussion of the HKIAC. I want to thank our guest, Joanne Lau, for her invaluable insights. And I want to thank you, the audience, for listening. If you have any questions, you should feel free to reach out to Reed Smith about today's podcast. And we look forward to having you tune in for future episodes as well. So thank you again, Joanne. And we look forward to hearing more in the future.
Joanne: Thank you so much for having me. I really enjoyed our conversation.
JP: Great. So did I. Thank you. And look forward to having you back.
Joanne: Thank you.
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Reed Smith partner Gautam Bhattacharyya sits down with Professor Yarik Kryvoi, Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law. Yarik reflects on his career journey, highlighting the mentors who influenced his path. The duo then discuss the interplay between corruption and arbitration, the evolving role of public international law in the global legal landscape, and the intricacies of sanctions regimes and their impact on arbitration, before turning to the challenges arbitrators face when navigating these complex issues – and Yarik's love of judo.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Gautam: Hello, everyone, and welcome back to our Spotlight On podcast series. And I'm delighted that our spotlight today is on Professor Yarik Kryvoi. Hello, Yarik.
Yarik: Hi, Gautam.
Gautam: It's really nice to see you. Yarik is a senior fellow at the British Institute of International and Comparative Law, and he's also a director at the Investment Treaty Forum and a very well-noted and well-regarded academic in the areas of public international law and associated areas. So it's a real pleasure to be doing this podcast with you, Yarik, and I look forward to our discussion. There's going to be a number of things that we're going to talk about, which I know our listeners will find very, very interesting, given your very, very interesting background and your areas of specialism. So thank you again for joining me, Yarik.
Yarik: My pleasure.
Gautam: So let me first of all ask you about your background and if you could tell our listeners a little bit about your background and what drew you to the areas of international arbitration and public law, which of course you specialize in and which you teach.
Yarik: Yes, happy to talk about that So I've been in London for around 15 years of my life, so the last 15 years. And I first came here to work as an associate at one London-based law firm And prior to that I was based in Washington, D.C. where I also worked for another law firm doing primarily international arbitration work and going back prior to that Immediately prior to that I did an LLM at Harvard Law School, and prior to that, I was based in my home country, which is Belarus. So I was born in Belarus, I grew up there, but I did my first law degree actually in Russia. And after that, I also did degrees in England, in the Netherlands, and in the United States. So my path towards international arbitration was not very straightforward, because initially I was more interested in public international law, in international labor law, so more public side of public international law, if I may say so. But then I understood that there is not that much work for people who do just purely PIL. And if you want to work with international law issues, then you need to be a bit more of a generalist and be flexible and do commercial arbitration. And at some point, I discovered the area of investor-state arbitration, which is somewhere on the border between public international law and domestic law. So you have an interaction of domestic legal systems and public international law, important public policy issues are also decided in this context. And that was intellectually challenging, and that was also something quite sophisticated and quite new at that time. Even though I was in Washington, D.C., at that time, the area of ISDS was not as well-developed and as fancy as it is today. So that was sort of my reasoning why I wanted to explore more this area. And just before joining a law firm in Washington, D.C., I did a short clerkship. I worked as an extern law clerk for a judge on the U.S. Court of Appeals for the District of Columbia Circuit, which is quite an important court in the United States because it has jurisdiction over many disputes which involve public international law issues. And sometimes you hear about annulment proceedings or Guantanamo cases or whatever. So a very important case, a very important court, and I had a chance to work on some of PIL cases also within the context of domestic courts. And now I've been in London, as I mentioned, for a few years already, for, well, soon it will be two decades, and here I combine academic work, practical work, as well as other activities. I will be happy to discuss those later today.
Gautam: Thank you very much, Yarik. Now, that's a very, very interesting background. You certainly studied in many countries. You worked in many countries. And, you know, I suppose this explains why you are so international in your outlook, in what you teach, and in your academic interests of research. And we'll come to that. And I'll certainly be following up with you on some of the points that you spoke about there, because I know they'll be of interest to our listeners, and they're certainly going to be of interest to me. So so let me ask you this next in the course of your journey so far which we've obviously ascertained is a very interesting one and a very international one who along that journey have been your biggest inspirations and who've given you your biggest guidance and your biggest mentorship to make you the person you are today,
Yarik: Yeah, it's a good question. Because I started arbitration and investor state arbitration work fairly late in my career, so after I did my first PhD, the influence of people also so when I was doing my first law degree, I was not particularly focused on one area. So it was more generally international law and domestic law. But then once my focus has become more clear, I think already when I was doing my LLM at Harvard, at that time, arbitration was not even taught there. But there were some other areas of law which were very well taught. And for example, I was quite interested in law and economics classes. And it was possible to attend joint seminars of the Department of Economics of Harvard University and Harvard Law School, where they brought together students, or mostly LLM students and PhD students from Harvard and from these two departments of Harvard. And we discussed various areas and how to use law to regulate particular issues, a variety of topics, from damages to most efficient dispute resolution mechanisms. So this way of thinking about law as an instrument to deal with real-life issues, I think that was quite inspiring. And, for example, Andrei Schleifer, professor of economics, was there. And Louis Kaplow, who is professor of law and economics at Harvard Law School. So they certainly impacted me. Then when I worked for Judge Stephen Williams in Washington, D.C., the common law approach, the approach of judges to common law issues, understanding law, interpreting law, including public international law, had also great influence on me. I remember working on one case which involved. An archive of one Jewish group, which was confiscated by Russia at the beginning of the 20th century. And then this Jewish group was trying to sue the Russian Federation to get those documents back from Russian archives, and they relied on various international law concepts. And so it was possible to see how international law works in practice and how closely it's linked with politics and with history and Judge Williams at that time and he was a great mentor, unfortunately he passed away a few years ago and then i found my first job and partners who worked there Mark Bravin for example he used to work on the with the cases on the Iran-U.S. claims tribunals in early years of this tribunal and we had a case uh representing government of Romania in Roussalis vs Romania and I was in charge of preparing arguments on counterclaims. And it was still very novel at that time. Nothing has been written on counterclaims. So I had to come up with my own arguments. And then I published the first ever article on counterclaims in investor state issue settlement. And then when I moved to London, well, London is great when it comes to human capital and the number of people who are great experts in the area, particularly when I joined the British Institute of International and comparative law. We have a great advisory board. But actually, even before I joined, when I was interviewed for my job, I was interviewed by the then director of the institute, Robert McCorquodale, but also by Johnny Vida and by Audley Sheppard. Unfortunately, Johnny Vida passed away as well a few years ago, but I still remain in contact with Audley Sheppard, with other people on the advisory board, for example, Professor Andrea Bjorklund, with Robert Volterra and others. So we regularly were in touch to discuss events, discuss projects and so i feel very privileged to be able to work with with people of this sort of expertise and reputation
Gautam: Well there's some great names there and some really big names there who you've mentioned and you know and you know no doubt been huge inspirations to you and you know and i think this is an area of law i can remember Yarik when i was a young law student many years ago, and it was many, many years ago. Of public international law wasn't really that well-known at all. And I'm thinking back to my first degree that I began in 1987, and I graduated in 1990. It really wasn't that well-known at all. And it's been amazing how over the years, it's become such a popular area, and there's so much academic research and study in these areas, and also the practice of ISDS arbitration, which of course we can, which we'll discuss because I've got some issues to ask you about on that, not least given a written article that you wrote. So there's a lot of really, I mean, it's been great to see the development of this area. So let me just ask you this as a follow on. You're obviously a very active academic and you teach very regularly on the areas of public international law. Tell us a little bit about the courses which you teach and what some of the key areas are that you consider we should be thinking of as important areas to watch in the area of public international law.
Yarik: So at the British Institute of International Comparative Law, we do have teaching, but it's not really the teaching which you normally expect at universities. And I used to be a full-time law professor at a London-based university, and there I had many students and I had marking and so on. At BIICL, we do teaching, but it's primarily for government officials, for senior lawyers, for people who already have good understanding of law, who are usually qualified in one or more jurisdictions. But what our institute brings is focus on specific areas of international law, as well as international law more generally. For example, I teach on the public international law in practice course, which is, for some reason, it's very popular among government officials, not only the UK government, but also other governments. And what we do there, after the initial class of introducing the key concepts of international public law, such as state responsibility. Such as subjects of international law, jurisdiction, and so on, we then focus on specific areas of international law. For example, Investor State Dispute Settlement, the Law of Armed Conflict, International Trade Law, you name it. There's a significant number of those courses, of those classes. I think around 10 in total, where we zoom in on particular areas of law. And my particular area of law is Investor State Dispute Settlement. In addition, we recently started offering advanced workshops or masterclasses. And the first masterclass, which the Institute produces, will actually be delivered by me. It will be about corruption and international arbitration. I am involved in one study commissioned by the United Nations Office on Drugs and Crime, in which we try to understand the impact of corruption allegations on international arbitration and whether it's possible to use international arbitration as an instrument to promote anti-corruption treaties. For example, the United Nations Convention Against Corruption, which is one of the most widely ratified treaties in public international law. But for some reason, tribunals are not particularly keen to rely on this treaty, and perhaps the main explanation is that they're simply not familiar with this area of law, because most of arbitrators, be it in commercial arbitration or investor state arbitration, have background in commercial law, occasionally in public international law more generally, but not really in criminal law. So I think there is much to do in this particular area. Also, in addition to live classes, be they hybrid or in-person, I also created an online course or an Investor State District Settlement, which anyone can access at any time on the BIICL website. And again, for some reason, government lawyers are particularly interested in it. So you can take this course over the course of several weeks, which includes interviews with practitioners, lectures, quizzes, and so on. So I think that's one of promising ways to spread knowledge about international law is essentially to use technologies. And I think what we're doing now is also within these efforts to make international law more visible, to talk about practitioners. So podcasts, I also actually have a few podcasts which are integrated in this course. And when it comes to areas of international law, in addition to corruption and arbitration, which I already mentioned, I think sanctions become increasingly important because they involve interaction of domestic law, international law, they involve public policy issues, and you don't have anyone who can claim to be an expert on all sanctions in the world because each sanctions regime has its own limits and there are different jurisdictions with different laws. And that, I think, makes it important for lawyers from various jurisdictions to cooperate, to understand how to comply with particular regimes or, in some cases, how to challenge particular sanctions designations. So I think these two areas which kept me quite busy, and some of my work actually results from sanctions or from counter-sanctions. One of the jurisdictions in which I'm qualified is the Russian Federation, and I often act as a Russian law expert in various proceedings, for example, in aviation insurance litigation in various countries. And next week, I'm going to Chicago, actually, in one of those cases where I work with Reed Smith. So I think sanctions will continue to generate work not only for academics, but also for practitioners.
Gautam: Absolutely. It's a really incredibly important area now, sanctions. I mean, everyone knows that it's constantly evolving and your expertise will certainly be very valuable, I know. And let me say, I hope you have a very nice trip to Chicago. I dare say you'll need to take a warm coat because I think the weather in Chicago now is getting a little cold. No, you mentioned in the course of what you said about your work in the area of investment treaty arbitration and corruption. And I read your article that you recently very kindly sent me, where I think this is part of your study that you're doing. And I think this is a very interesting area because one of the things that, because it's still quite a, it's an unknown area in many ways. There's a lot of things to be settled in this area. But I suppose one of the interesting angles in all of this is, amongst others, is what role should tribunals be taking to deal with corruption issues? I wonder if you could briefly give us your thoughts about what more you think the tribunals can be doing in this area.
Yarik: That's a great question. And I think the first question here is whether tribunals should actually look at their own initiative into the possibility that corruption has occurred there. And traditionally, in commercial arbitration or even in investor state arbitration, and particularly in common law jurisdictions, tribunals are supposed to look at issues which were brought to them by the parties. So if someone is asking a particular legal question, they need to deal with this legal question. They don't need to go too far away from it because otherwise they could be outside of their mandate or they can be potentially jurisdictional challenges. Or someone will say all sorts of arguments which can be raised. On the other hand, we know that there are mandatory rules of law, be they domestic law or international law. And I think to address the question of whether tribunals should look themselves into corruption allegations or even to report corruption allegations to the relevant authorities, I think it's important to understand what law applies to that particular dispute. And very often, unfortunately, in the context of investor state arbitration, tribunals are not particularly pedantic let's say about applicable law they just explain their reasoning their logic and without relying on norms of law and they may rely on a treaty on a fairly vague provision let's say fair and equitable treatment and then they would explain how they understand this concept without really relying for example on domestic law and very often arbitrators are not experts in in a particular domestic law in the context of investor state arbitration. So if you look, for example, at those who were most frequently appointed as arbitrators, these are nationals of the United States, the United Kingdom, France, and Switzerland. I think there are also a fair number of Canadians there. But if you look at respondent states with legal systems of which those claims are usually most closely related, the vast majority of them are not from the United States, Switzerland, or the UK. They come from other jurisdictions, often with rather different legal cultures. So I think more respect to applicable domestic law is an important component of it. Plus, I think tribunals should be aware that international law is not aware, I think they are already aware, but they should in practice do more to reflect that international law is not only a relevant bilateral investment treaty. There are also other instruments which deal with corruption, which may deal with human rights, which may deal with jurisdictional immunities, with all sorts of issues. And I think it's important to be aware of it and to actually apply those standards. For example, the UN Convention Against Corruption is a rather detailed document, and there are also reports which are regularly published to see how states comply with this convention, how different provisions should be interpreted. So there is a wealth of evidence about how corruption-related norms can be implemented and should be implemented. And sometimes as a matter of law it's not even a choice whether tribunals want to do it or not sometimes they just must do it because as a result of application of mandatory rules of law so this is some of my thinking but if you're interested in knowing more then please read my publications.
Gautam: Yeah yeah I’m very interested in fact I read your article with huge interest and I certainly would recommend to our listeners to look into your recent article on ISDS and corruption because it's an area that I don't think there's been much empirical work on before. And I certainly haven't seen much on the subject because often many cases, as you all know, Yarik, where the states get sued by the investor. Some of those cases tend to come out of alleged corruption by government officials, state officials. But actually there's another set of corruption which could also be very interesting. And, you know, your article is, I think, very instructive on that. So I would certainly encourage our listeners to look into that. I wonder if I could ask you one last question on ISDS before we sort of move to close out the podcast. And it's this, over the years, as I've observed and as you've observed, many observers will have seen this, ISDS, so Investor State Dispute Settlement, has in some ways lost a lot of faith amongst the states. And there are many reasons for that. And we don't have enough time in this podcast to go through all of those reasons. But you and I know that this has been an ongoing issue. Do you have any thoughts as to how everyone involved in ISDS can do more to bring more faith into the system and give more confidence in ISDS as a concept? Because it has suffered in its reputation over the years, and some states, as you know, are very skeptical about it. I wonder whether you could give your thoughts as to how the process might be made more attractive and give more confidence.
Yarik: Sure and before I move into that if you're interested in empirical studies of various aspects of ISDS to see how actually ISDS works in practice I would recommend also checking the publications page of the Investment Treaty Forum because we did a number of studies on provisional measures on tax measures on cost duration and so i think working with numbers, working with real practice of tribunals is quite helpful. And also one of the reasons why it's helpful is because there is great inconsistency in the ISDS system, which is, I think, one of the main criticisms of the system. Because in domestic law, you more or less know that if there is some inconsistency, you can go to court and the court decides on this inconsistency. And then hopefully things become more consistent. Within the system of ISDS, each tribunal can come up with its own reasoning and if let's say it's an exit award and you can't really do anything about this award you can try annulment but annulment your chances of success are quite low and so you I think what worries many stakeholders and in the first place states is this inconsistency which also leads to high costs. It takes long because the issues are not settled so it's expensive it's long and also states, as I understand, many states think that ISDS is biased towards investors. And our institute is an observer at the UNCITRAL working group three. And I think these three issues, inconsistency, high costs and long duration and bias towards investors, are the main three points with which states are unhappy. And when it comes to what to do about it, well, indeed, many things can be said on this issue. What I think is that it's important to understand that if ISDS will be completely removed from the public international law landscape, I don't think it will happen, but let's imagine. Then what will happen is that investors and states will switch to commercial arbitration, which will be even less transparent. There will be less opportunities to reflect public interest, to make submissions, or to put pressure on stakeholders. I'm currently doing another study where I look at one aspect of corruption in the SDS, namely corruption in the SDS arising out of investor-state contracts. So not treaties, but contracts. And one striking thing is that the majority of those contract-based disputes come from African states, which have no sophisticated network of bilateral investment treaties. So that suggests that if you don't have treaties, if you don't have international law, then it will be national law, it will be less transparent, and I think there will be less opportunities to reform that sort of approach. And what else can be done? I think more respect to domestic law would be helpful. Also to show that it's not just three white guys in London who decide disputes, as I think one of Trump's officials described ISDS. It should be seen as more inclusive. And also I think some states are now switching from being just capital importing states to also capital exporting states. For example, India. In the past, you would only see it as capital importing country, but now you can see more and more investments coming out from India. The same can be said about China and about some other jurisdictions. So they may also think that at some point they may decide that it's important for them to protect the interests of their own investors to have some sort of stability and predictability, particularly in countries with a weak rule of law. Because if you don't have strong rule of law, then investors will just stay away from those countries and those countries will be hurt as a result. They will not benefit from technologies, from tax revenues, from other know-hows, various benefits which foreign direct investments can bring.
Gautam: Thank you, Yarik. Fascinating. And this will continue to be a very sensitive area and one that we'll watch. I should have just mentioned for our listeners, and I know our listeners take much interest in the academic side of what we're discussing. For those of our listeners who are interested, and I would encourage you to look at this, the article which I mentioned, which Yarik and I were talking about on corruption, the name of the article is Corruption and Foreign Investments, Empirical Lessons from Treaties and Arbitration Cases. And that was an article published by Yarik in the International Journal of Constitutional Law, Volume 22, Issue 2, in April of 2024. So I would encourage you to look at that article. It's a very, very interesting one. I'm sure one that will be written about further by Yarik in the months and years to come.
Yarik: Yeah, I should say that it was inspired by my work with the UN Office on Drugs and Crime. And hopefully next year we'll publish a much longer study looking at these issues.
Gautam: Thank you. And I hope you'll send that to me too when you do it.
Yarik: Will do.
Gautam: Because I certainly find this a very fascinating area and one that we need to all keep up with. So, Yarik, thank you. I mean, you're an incredibly busy man. You've got many, many things that you do. But the one thing that I always like to do in these podcasts as we finish them is ask our guests a few non-legal, a few non-technical questions. Because at the end of the day, we're all human beings and we all have other interests. So let me just ask you apart from you know your extremely busy legal life what sort of things do you enjoy doing in your spare time?
Yarik: Well there are two things which i think could be said to be unusual. The first one is that I did a second PhD and it was not in law but in education. So University College London has a program focusing on online education so i try to understand what makes legal education different from other areas and I implement some of findings from my study for my PhD project at the institute but also within arbitration lab which is an initiative a Swiss British initiative we where we promote international law internationally we organize a winter school and a summer school and a few other initiatives and we talk about really fascinating topics, for example, how to resolve disputes arising out of e-sports and gaming or blockchain-related arbitration and so on. But this is still, it sounds a little bit like work. And what is completely not related to law is my Judo practice. Just a few days ago, I got my brown belt in Judo. So it's one more step and then I'll be a black belt. And I find this sport quite interesting and rewarding as well because it keeps your body in a good shape. And also when I travel for work, I try to find a local Judo club, be it in Dublin or in the US or on the Canary Islands there would always be a Judo club and i could go there and and train there and and speak to people just to get a glimpse of what it what life is like in in those particular countries. I mean one sort of disadvantage is that sometimes when you come to a conference with a bruise under your eye you get too many questions so what what happened what really happened?
Gautam: I’m sure.
Yarik: But that's I guess the biggest inconvenience but otherwise, I would highly recommend this as something to completely switch off your mind from law and law-related work.
Gautam: Well, I know that martial arts takes a lot of discipline. So that's a very good lesson for us all, because discipline is a very important thing in what we all do. So last question is this, Yarik. Do you have any particular favorite music that you enjoy listening to?
Yarik: Well, if you look at what I have on my phone, then I have a huge collection of choral music, and boys' choirs, Vienna boys' choirs. I really like that. And also, on the other end of this music spectrum is a complete techno music, very energetic. There's a very different type of music, but I think they help me to get myself into a different mood when I'm driving or when I'm walking somewhere or during breaks. And actually, when I work on my computer, when the task is not super intellectually challenging, I also like to listen to Indian music.
Gautam: Oh, right.
Yarik: Bahjans, you know, the religious music?
Gautam: Yes, yeah, the devotional songs, yes.
Yarik: Yes, exactly, because they are so melodic, and they are not interfering with your thinking process and at the same time, they're inspirational in a way. So I like to have that music in the background when I work on my legal and other issues.
Gautam: That's fascinating. No, that's fascinating, yes. Because as you can imagine, I was brought up listening to Bhajans and devotional songs. And I still do. Because it's part of my religious beliefs. So that's fascinating. I've learned many, many new things about you today. Which I must say have been amazing and thank you very very much for being such a superb guest. I really could have spent an hour talking to you about all of the things we've been talking about and some of the things we spoke about we barely dealt with because there's just so much to say but thank you again very much Yarik. I wish you all the very best and I look forward to seeing you in person very very soon.
Yarik: Thank you very much Gautam. It was a pleasure.
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J.P. Duffy is joined by Jeff Zaino, vice president of the AAA-ICDR's Commercial Division, to discuss the AAA's upcoming centenary and its enduring reputation as a trusted choice for resolving commercial conflicts across industries. The conversation delves into the AAA's significant milestones and accomplishments, highlighting its commitment to innovation, including its approach to AI and the recent appointment of Bridget McCormack as president and CEO.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the American Arbitration Association with Jeff Zaino, who's the vice president of the AAA's commercial division. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales in the DIFC courts in Dubai, where I previously lived and practiced. I routinely represent clients and arbitrations involving a range of issues and frequently sit as an arbitrator in commercial disputes as well. I also have the good fortune to be a member of the AAA's commercial division arbitrator roster, the ICDR panel, and I'm a member of the AAA-ICDR Life Sciences Steering Committee and a member of the ICDR Publications Committee as well. So I get to do a lot with the AAA, which is really a wonderful organization. As I mentioned, with me today is Jeff Zaino, who's the vice president of the commercial division of the AAA in New York. He oversees administration of the large, complex commercial caseload, user outreach, and panel of commercial neutrals in New York. He joined the association in 1990, and Mr. Zaino is dedicated to promoting ADR methods and services. He's also written and published extensively on the topics of electronic reform and ADR, including several podcasts with the ABA, talks on law, and corporate counsel business. And he's appeared on CNN, MSNBC, and Bloomberg to discuss national election reform efforts and the Help America Vote Act. He was deemed a 2018 Alternative Dispute Resolution Champion by the National Law Journal and received awards for his ADR work from the National Academy of Arbitrators, Region 2 and Long Island Labor and Employment Relations Association. In 2022, Jeff received the Alicott Lieber Younger Committee of the Year Award for the New York State Bar Association Commercial and Federal Litigation Section. And in 2023, the Chairman's Award, NYSBA Dispute Resolution Section. So as you can tell, Jeff is a highly experienced, highly lauded arbitration expert, but we're really lucky to have his valuable insights today. So before we begin with some of the substance, let me just give a little bit of background on the AAA and the commercial division so that those that are less familiar have a little bit of information about what we're going to discuss today. The AAA is a non-profit alternative dispute resolution service provider headquartered in New York that administers arbitrations, mediations, and other forms of dispute resolution, such as ombudsperson and dispute avoidance training. It was founded in 1926 to provide an alternative to civil court proceedings, and that makes the AAA one of the oldest arbitral institutions in the world, as well as one of the largest, having administered over 11,553 business-to-business cases in 2023 alone, with a total value of over $19.1 billion. So that should give you a pretty good idea of the scope of what the AAA does. Notably, the AAA has several divisions that offer users substantial subject matter expertise. For instance, the commercial division, which Jeff heads, specializes in business-to-business disputes of all sizes, but has a particular expertise with large complex cases across a variety of industries, including accounting, communications, energy, entertainment, financial services, franchise, hospitality, insurance and reinsurance, life sciences, sports, and technology. There are also separate AAA divisions that focus exclusively on construction issues, consumer disputes, employment matters, government issues, healthcare, and labor disputes. Lastly, as many of our listeners will know, the AAA has a well-known international division, the International Center for Dispute Resolution, or what's colloquially known as the ICDR, that focuses on disputes that have an international component. Before we get into some of our recent developments, Jeff, if you could tell us a bit about what makes the AAA different than other arbitral administrators, I'm sure our audience would love to hear that.
Jeff: Sure. Hey, thanks so much, J.P., for having me today, and thanks for the kind words at the beginning. It's great to be here today. Well, you mentioned it. The AAA is the largest and oldest ADR provider in the world. We have over 700 staff worldwide and 28 offices, including one in Singapore. And we have a huge panel, and you're on that panel. We have 6,000 arbitrators on our panel, and we consider them experts in the industry. And we're really proud of our panel. And like you mentioned, we're hitting our 100th anniversary in 2026. And since then, when I started, I started in the 90s, like you mentioned, 1990. From 1926, when we were founded, to 1990, we did a million cases, one million cases. And then, since then, from 1990 until now, 2024, we hit 8 million, 8 million cases. So it's growing. And I feel that's because of AAA, AAA-ICDR. Again, we've been around for almost 100 years, and we keep on growing. And I feel that we took the A out of ADR. I mean, everyone says alternative dispute resolution, but I really think now it's, and you'll probably agree with me, J.P., that it's dispute resolution. It's something in our toolbox and it's not alternative any longer. And then another thing about us, a huge difference about AAA-ICDR is we're not for profit. That makes us unique in this space. Profit-based companies are a little bit different than what we are. We're not criticizing them, but we're unique in the sense that we work directly for the parties, not for the arbitrators.
J.P.: That's a really interesting stat, Jeff. Let me unpack some of that because I think, first off, if I understood that correctly, you said up until 1990, there were 1 million cases administered. Is that right?
Jeff: That's correct. We did 1 million cases from our founding, 1926, a year after the Federal Arbitration Act in 1925. So we did 1 million when I came on board in 1990. And then from 1990 until now, we've done a total of 8 million. So we doubled that, or tripled it. It's been amazing how the growth that we've seen. And also during a pandemic, we saw a huge growth at AAA-ICDR.
J.P.: And Jeff, one thing that I think you're obviously very involved with the New York State Bar, and I've done quite a bit with the New York State Bar myself over the years. One thing that I noticed, and you just reminded me of this, was an uptick in submission agreements during the pandemic, by which I mean parties taking existing disputes for which there was no arbitration clause, drafting an arbitration clause for it to submit it and move it into arbitration. And I think some of that was a function of the recognition that disputes would founder if the courts were closed and that parties needed things done. Did you see that kind of growth during the pandemic of submission agreements as well?
Jeff: Absolutely. The courts were shut down, like you mentioned, for three to four months worldwide. And the ADR providers, like the AAA-ICDR, did not shut down. And we did have submissions, more submissions than we've ever seen. And usually it's only about, I would say, 2%, 3% of our caseload is submissions, but we saw the court systems. And I had, personally, I had over a billion dollar case, a bankruptcy case that came to us from Texas and it was mediated. We had two mediators, one in Connecticut and one in Texas. We had six parties, 40 people showed up on the Zoom, J.P., it was amazing. And that was a submission to AAA through the court system. The judge talked to the parties and said, listen, we're shut down. This is an important matter. Why don't you go to AAA? And so, yes, we did see submissions during the pandemic. I'm not sure if that's going to continue on. Most of our disputes are features of contract, as you know.
J.P.: Yeah. I mean, that's always going to be the case in arbitration, right? That the vast majority of cases will be subject to a pre-dispute arbitration clause. But I think it's really interesting when you see submission agreements like that, because I think it's a clear recognition that one, arbitration is a really valuable tool. And two, it's a real plus for the AAA and a real nod of confidence that those are submitted to AAA because that's parties taking something they know has to be figured out and saying, all right, AAA is the guy to do. I wanted to pick up, too, on that exponential growth of 8 million cases between 1990 and the present versus 1 million over the first, you know, what is that, 70-something years or 60-plus years?
Jeff: 60-plus years, absolutely, yeah.
J.P.: Are there particular industries that you've seen significant growth in since the 1990 period that you were discussing, like between 1990 and the present? Are there particular industries that you are seeing more growth in or that you think there could be more growth in? Just be curious to get your views on that.
Jeff: Sure, sure. And my area of commercial, as you know, because you're on the commercial panel and the ICDR panel, is healthcare. And I know you're a big part of healthcare. Also, financial services. We've seen a huge growth in that in the last five years. We put together an advisory committee for financial services on insurance. And then also, as you probably know, consumer. We saw a big amount of consumer cases during the pandemic and even prior to the pandemic. And that's a big caseload. It's about 30% of our caseload at AAA-ICDR. But again, people criticize that sometimes and say, well, that's not fair to the consumer. They're forced into arbitration. But what I say, J.P., to law students and when I speak at events like this, I say, listen, we don't draft ourselves into contracts. AAA-ICDR does not do that. People draft us into contracts and we just try to make the process, we try to level the playing field. And we do a lot of consumer, but we do a lot of high-end commercial cases, as you know, a lot of international cases and things like that. But the two areas, I would say, a long way to answer to your question, J.P., is I would say healthcare and financial services, insurance, that's where we're seeing a lot of growth and also technology.
J.P.: The consumer aspect is one that is obviously very, very, very hot right now, given things like the mass arbitration rules and things like that. And we will probably touch on that in a bit, but it's a really valuable service to provide. And that's one thing that I think the AAA really does well. As you mentioned, it's a not-for-profit organization. It's not an organization that's out to make money off of consumer disputes. It's really there to help everybody resolve them. So something for everyone to keep in mind.
Jeff: The company bears the cost, not the consumer. And I hope people know that, that we're not out, like you said, we're not out to make a big buck on this. We're just trying to level a playing field and access to justice for these people.
J.P.: Yeah. And that's really what it is. At the end of the day, it's access to justice. And a lot of times the alternative is small claims court, which is not always a great choice. I've sat as an arbitrator in small claims court a few times, and I can tell you it's a great process when it works, but it can be a challenging process as well so
Jeff: Without a doubt.
J.P.: Always something to keep in mind. Yeah. Well, let's talk then about some of the recent developments because there have been quite a few. And as you mentioned, it's coming up on the centennial for the AAA-ICDR. And a lot has happened, obviously, in the 100 years of its existence, almost 100 years of its existence.
Jeff: Sure.
J.P.: And quite a few of those things are pretty monumental. And one of the biggest ones, I guess, is that in February 2023. Bridget McCormack took over as president and CEO of the AAA-ICDR from India Johnson, who was in that role for a lot of years. Bridget was previously the chief justice of the Michigan Supreme Court, if I'm correct, and was also a professor and associate dean at the prestigious University of Michigan Law School. So she brings a pretty extensive wealth of experience to the AAA. Now that she's been in that role for about a year and a half, how have things been different at the AAA-ICDR under Bridget's leadership?
Jeff: It's been wonderful. I mean, Bridget brings such life to the company right now. I mean, India Johnson was great. She put our house in order, our finances. but Bridget is now doing a wonderful job in getting out there. I'm not sure, J.P., have you met her yet?
J.P.: I have not had the pleasure of meeting her in person, but I'll sort of preview for our listeners that we are in the process of trying to get Bridget into our firm to talk to everyone about what the AAA-ICDR does and give sort of an insider's view for our partners.
Jeff: Oh, wonderful. She's such a dynamic speaker. If you go on YouTube, you'll see she speaks all the time. It's amazing. Whenever I ask her to speak at an event in New York, I feel bad about asking her because I know how busy she is, but she does agree. But I have to find a space in her calendar because if you see on LinkedIn, I know you're on LinkedIn too, J.P., and she is everywhere. It seems like every week she's speaking somewhere, very dynamic, and she embraces AI. And I know we're going to talk about AI a little bit, but also innovation. And she's been doing such a terrific job being the face of the AAA, and we needed that. India, again, did a wonderful job, but Bridget is out there and around the world doing international events, doing events here domestically. And it really, I think, is getting the word out there about ADR and about, well, I should say DR, sorry, dispute resolution, and also access to justice. Being a former chief justice of the Supreme Court of Michigan, doing a terrific job. And really, the people in the company are very excited. We have 700 plus employees, and we're excited with our new president. It really has been a great time with her.
J.P.: You know it's funny. The one thing I've universally heard from anyone who works there when I ask about Bridget is everyone says great energy, great leadership, and really, really, really strong presence, which is really wonderful to hear because you seem to be echoing that pretty strongly as well.
Jeff: Yeah, without a doubt. I mean, when she works a room, when she talks at an event, and it's great. We're forward-looking right now, big time. The AAA now is looking, AAA-ICDR, looking towards the future with innovation, with ODR, and we're going to talk about that, and with access to justice, which I love. And she's doing a terrific job.
J.P.: Well, that's great to hear. And I think we are going to talk about odr.com in just a second. But before we do that, I'd just be curious, because they may well be the same thing. But what would you say Bridget's greatest accomplishment is so far?
Jeff: I would say being the face of the AAA and embracing new ideas. For years, we didn't really, we moved kind of slowly. We embraced new ideas, but we moved slowly like a battleship turning around or an aircraft carrier turning around. We moved slowly. We're not doing that any longer. Bridget wants to move on quickly, which is great, and embrace things that are going on. And I think we're ahead of the curve on a lot of things, with acquiring ODR, with our embracing AI, with her ideas about innovation, access to justice. We are, I think, really ahead of the curve with respect to these areas, ahead of law firms, ahead of some of our competitors. And I attribute that to Bridget.
J.P.: That's really great to hear. That's really great to hear. And it's really hard with a large organization to be nimble. Exactly. I know we do that pretty well at Reed Smith, I think, too, but it's a challenge, and it does require great leadership in order to get everybody on board with that. So it's wonderful to hear that's happening at the AAA-ICDR, and you see it.
Jeff: Oh, yeah, without a doubt. And also, we're almost 100-year-old organizations, so you would think that we wouldn't be thinking about these innovation things in the future, but we are, which is terrific. We're an old organization, but not really. We're ready for the future.
J.P.: Well, let's talk about that future a bit because it's clear that there's a strong focus on that. And one of the first things that I noticed is the odr.com resourceful internet solutions acquisition. So for those that don't know anything about that, maybe you could fill the audience in and give us a bit of background about that one and what it's done for the AAA-ICDR.
Jeff: Sure. We just recently, a few months ago, acquired odr.com. It's a company that's been around for approximately 25 years. Online dispute resolution that can be completely customized for your needs for online dispute resolution. And they've been doing a wonderful job for many years. Okay. obviously much smaller than the AAA-ICDR, but they've been working with us. I'm not sure if you know this, J.P., but they've helped us with our no-fault business in New York. They help us set up our system initially years ago. So we've had a relationship with them for probably two decades with ODR. So we recently acquired them and we're working with them. Their most important area is right now is mediation. They have mediate.com and we're looking at our mediation.org and combining those two. Okay. And we want to expand our mediation business. And again, I mentioned it a couple of times, access to justice. We want high volume cases. Okay. We do obviously high-end cases, high dollar cases, but right now we're seeing with odr.com, we can spread the business, we can grow the business and we can expand our mediation business. And that's what we're trying to do because mediation is growing. As you know, J.P., it's it mediation has grown tremendously over the last couple of decades. But now with ODR online dispute resolution, I mean, it's going to really grow, I think. So that's what that's why we acquired it. And, you know, Colin Rule, I'm not sure, J.P., if you've ever met Colin Rule. The head of ODR.com.
J.P.: I have not had the pleasure.
Jeff: Yeah, he's he's phenomenal. know if anyone that's listening to this podcast, you just Google Colin Rule. He's been in this space for many, many years and he's a phenomenal person. And I'm really excited about this acquisition. And I think we're going to work so well together.
J.P.: Jeff, just for people like me that are a little bit less savvy with how some of these things work technologically and sort of mechanically, is odr.com and mediate.com is a function of that, right? Or a part of that?
Jeff: Yeah, it's a part of it. Yeah. And I believe they have arbitration.com, but now it's going to be merged in with the AAA. And the platform of odr.com is going to be used for our mediation services at AAA for online mediation services.
J.P.: Okay. That's what I was getting at. So this is like a platform where users or parties and the mediator all log in, communicate with each other. Exchange their positions, and do everything that way. So is it correct to say it's sort of a virtual mediation platform?
Jeff: Yeah, without a doubt. And now the timing is perfect, J.P., because we just came off the pandemic about a couple of years ago, and we were seeing, as you probably know, as an arbitrator at AAA, we were doing thousands of virtual hearings arbitration and also mediation, and it worked. It really worked.
J.P.: Yeah. And that's really one of the true benefits that came out of the pandemic, in my view. Prior to the pandemic, I had always done certain aspects of cases virtually. And there was video conferencing was something that you could suggest, but that parties and frankly, arbitrators were not always that willing to embrace. But I think the pandemic really showed everyone that you can do things virtually. Efficiently, cost-effectively, and in a way that you don't need an in-person hearing for, and that it can be really successful. So I'm sure the timing has been right for odr.com and that acquisition. In terms of integrating it, what's the full timeline for getting it fully integrated, if you don't mind my asking?
Jeff: Sure. I mean, right now we're focusing on mediation. Okay. That's going to be our focus for the next several months. And then I think we're going to try to see if we can move this into arbitration also, because we're still seeing a lot of arbitrations, not a lot. I mean, I would say that 30% of our arbitrations are still being done in the virtual world. We're starting to see, and JP you’ve been at my Midtown office in Midtown Manhattan on 42nd Street, and we're starting to see about 60 to 70% capacity as an in-person for arbitration. But there's still a segment that wants to do it in the virtual world. And this is where odr.com comes into play. And right now it's, but the focus right now is mediation and working with our mediation team at the AAA-ICDR.
J.P.: Got it. Well, you know, it's funny. I have an employment partner who told me the odds of them ever doing an employment mediation below a certain value in person again are slim to none.
Jeff: Interesting.
J.P.: Yeah. And I think you guys have really hit the nail on the head with this.
Jeff: Well, with labor similar to employment, we're seeing almost 80% of labor cases now in New York City, I'm talking, are being done virtual, maybe even a little bit more than that. They got so used to doing it in the virtual world for labor cases, union management. It's interesting to see where we're going with this. But commercial type disputes, the type that you handle, J.P., we're starting to see more people coming back into in-person. However, we're not seeing the days of a witness flying in from Paris for one hour because we have all the technology at the offices, our offices around the country, the voice activated camera. So we don't need to ship in people for one hour. It's a waste of money.
J.P.: Yeah. And that's, you know, that's really the great thing that this technology allows for, which is, you know, I just did a, to mention the hearing space, Jeff, I just did a pretty large week-long hearing earlier in the year at the AAA's offices on 42nd Street. And it was great, but there were, you know, and I do, you know, myself prefer in-person for certain things, but, you know, during that hearing, we had witnesses that were exactly what you're describing, I mean, really only required to confirm a few issues or give, you know, a short cross examination and they were located in pretty diverse regions. Absolutely no reason to incur the time or expense or frankly, just the headache of bringing those people in from around the world for scheduling purposes and everything else.
Jeff: Sure.
J.P.: We did those, you know, we did those witnesses virtually and that is a real, that's a real benefit. You know, you sort of do that hybrid approach and you can save, it's way more efficient, It's way more cost-effective, and it is just easier from a scheduling perspective. So this is a really great development.
Jeff: Yeah, and J.P., have you noticed, I mean, when you were probably at my office on 42nd Street, we have now the big monitors. And I've noticed that arbitrators like yourself and advocates like yourself are using more technology in the rooms. We have these cupboards in our hearing rooms where the binders used to go, the big binders for exhibits and things like that. No longer am I seeing that. Most arbitrators are now using our, we provide iPads, we have the big monitors, and it seems like people are going away from paper, which is great too.
J.P.: Yeah, it's funny. I'm sort of like probably the last of the Mohicans where people really had to do things like mini books. Like when I was a real junior associate, we would have hearing bundles that were in mini book form and they were, you'd have 55 volumes and everything would be in there. I mean, there's sort of those nightmare stories where parties would spend hundreds of thousands of dollars just pulling together the paper for a hearing. And that, you know, that to me always seemed a little bit crazy. In this day and age, it is totally unnecessary. I would much prefer to have everything electronically. And that hearing space really allows for that. So really, really great to hear that parties are embracing that because it's such a cost savings and it's an efficiency. You know, it just doesn't need to be the way it was.
Jeff: Sure.
J.P.: Well, let's talk then a bit about some of the AI stuff that you were mentioning, because I think that is really, I have to confess, I don't understand it as well as I should. I think most people, if they were being honest, probably have an inkling of what it does, but don't really know. I'd love to hear what the AAA-ICDR is doing with AI, because it's a really, really, really groundbreaking development.
Jeff: Absolutely. Well, if you Google Bridget McCormack, our president, she speaks on AI quite frequently and it really has embraced it. And how have we embraced that AAA? Well, she encourages the staff to use it. And we have, she's even recommended certain programs that we should use. But with respect to how are we using it with respect to running our business? Well, we have ClauseBuilder and you know about ClauseBuilder. It's a tool that was developed in 2013 where people can go online and develop a clause for arbitration. Now we have ClauseBuilder AI, which as opposed to going through various modules with the original ClauseBuilder, you can just type in, I want an employment clause. I want three arbitrators. I want limited discovery. And the clause builder AI will build that clause for you. That's something we just rolled out. Also for arbitrators, scheduling orders. We have an AI program right now for arbitrators where a scheduling order usually takes an arbitrator, and you can correct me if I'm wrong, J.P., usually about an hour to two hours after you do the preliminary hearing. Well, now AI reduces that time to probably a couple of minutes for an arbitrator. So we rolled that out. And we obviously were having discussions about low dollar cases, high volume cases. Can AI be used? And we're looking into that. We haven't rolled that out yet. It's not going to eliminate you, J.P., but it's something that we're looking at right now. And we are embracing it. I use it for various things. I'll give you an example. I use it for if I'm doing an educational program, I'll type in, you know, I'm doing a program on arbitration and discovery. Can you give me a good title for this program? I've been doing this for years. I've used a lot of different titles for programs, and it's wonderful to use AI for those purposes and for editing things. So I like the fact that our company embraces it. Some companies do not. Some law firms, as you know, J.P., do not embrace AI. And we had that case last year where I think an attorney, it wasn't arbitration, it was litigation, where he cited cases through AI that never existed.
J.P.: Yeah, that's actually happened more than once since then. And it's been kind of amazing to me. Yeah, it's funny. We as a law firm at Reed Smith have definitely embraced AI. We've got a person who's sort of C-suite level that addresses that and that heads that function up. And I know we are trying to bring it in much more for things that are sort of routine, that don't require necessarily true attorney time. And it is a real game changer. I mean, you know, anybody who doesn't get on board with AI is going to get left behind at some point because it is truly, truly the wave of the future, in my view.
Jeff: Oh, absolutely. And the way I look at it, people say, well, it seems scary or whatever. But what about Google Maps and things that we've embraced years ago? I couldn't live, J.P., without Google Maps. So that's technology that it's going to help us. It's not going to take us over or whatever. It's going to help us enhance what we're doing.
J.P.: Yeah, I think the concerns about Skynet are a little bit, you know, Skynet and Terminator are a little bit far-fetched, but it is something that we all need to get on board with. It's a lot like the way that, you know, when I first started practicing the notion of uploading paper documents to be reviewed and then using search terms was really scary for a lot of people, but that, you know, that became commonplace and you couldn't function without it. This will do the same thing to the extent it's not the same. Now, Jeff, what's the overlap, if any, between that you see between some of the AI initiatives and odr.com?
Jeff: We're not really combining those yet, but I think we will. There's discussions about it, but right now we're focusing on mediation with odr.com and we're discussing rolling out AI with various things to help to assist our arbitrators, are mediators, but I think eventually, you know, there'll be a combination, I think, but right now there's not.
J.P.: Got it. Well, we'll stay tuned because I can't imagine those two things are going to stay in separate houses for too long. Well, we could talk all day about what's going on at the AAA-ICDR right now because it's just amazing. I mean, it's really incredibly, incredibly dynamic at the moment. But what I'd like to do is sort of shift ahead to looking ahead to the future. We talked a bit earlier about how the AAA is rapidly approaching its centennial anniversary, And that's kind of a natural reflection point for any organization. If you were to sort of sum things up and say, what accomplishments from its first century of existence that the AAA is most proud of, what do you think you would point to?
Jeff: Well, I would point to two things. First, how amazing the AAA-ICDR was and also other ADR providers. When pandemic hit, within a week, we were up with 700 employees doing thousands and thousands of cases. And I was worried about the arbitrators, not you, J.P., but other arbitrators with the technology. And our 6,000 arbitrators, it was flawless. It was amazing or seamless. It really went well. And that I'm very, very proud of because I had been with the AAA for a long time prior to that. And I was really concerned that the arbitrators weren't going to get it. We weren't going to be able to understand Microsoft Teams, Zoom, all that kind of stuff. So we did a great job during pandemic. We had some of our best years during pandemic with respect to helping society in arbitrating cases. But also some of the things that we've done for state and federal governments, you know, state and federal governments, Storm Sandy, Katrina. Those are the things I'm very proud of. I was a part of the Storm Sandy stuff where we administered 6,000 cases for homeowners and with insurance companies. And we were able to do that very quickly. And we're a not-for-profit. So the federal government and the state governments look at us and will hire us to do those kind of projects. And we can quickly mobilize because of our staff. So those two things really stand out in my career at AAA.
J.P.: That's a really, really interesting thing to point to because that truly embodies the best that the AAA can offer. It's an incredible service that really helped people with real-life issues during really challenging times. So wonderful to hear. What would you see for the next 100 years in the AAA? Like, you know, looking forward, I know it's going to be here for, it's going to be having its two, it's bicentennial at some point. It will absolutely occur. What would you see is, you know, if you were to fast forward yourself a hundred years and still be in the seat, because by then technology will have kept us all alive for the next hundred years, and you're Jeff Zaino 2.0, sitting around in 200 years, where would you see the AAA-ICDR at that point?
Jeff: Well, I'm on part of the committee for the 100-year anniversary. We have a committee already formed two years in advance to get ready for our 100th year anniversary, and we're talking about this stuff. And I think some of the themes that Bridget's talking about, access to justice, I think we're going to be, we saw from 1990 to now 8 million cases, we're going to see far more. We're going to see the public now embracing arbitration. When I was hired by the AAA in the 90s, I didn't even know what AAA stood for. I mean, with the name, American Arbitration Association. I didn't know what arbitration was. We are reaching out to law schools. We're doing collaboration with a lot of law schools in New York and throughout the country, throughout the world. And I think the word's going to get out there that arbitration is the way to go. Our mediation is too. And I'm excited about that. Also, we're going to see far more diversity at AAA and also in the community. And that's something that we really care about at the AAA. Right now, J.P., as you probably know, any list that goes out at the AAA is a minimum of 30% diverse. So we're going to see an increase in that area, but also access to justice for the public.
J.P.: Really, really great. And I think we will all watch with rapt attention to see what happens because it's only good things in the future for the AAA-ICDR, that's for sure. Well, Jeff, I just want to thank you. But before we wrap this up, I'm going to reserve my right to bring you back for another podcast because there's so much more we could talk about. So, but is there anything I missed that we should hit on now that would be great for the audience to hear? I know there's just so much going on.
Jeff: Well, I hope the audience when in 2026, when we have our 100th anniversary, I hope people participate in it because we're going to do things worldwide and we're going to be doing events everywhere. And that year we really are, we have a huge team of people that are working in our 100th year anniversary and not to just necessarily promote AAA-ICDR, but to promote arbitration and mediation. And that's what we're going to be doing in 2026, and I'm very excited about it.
J.P.: You heard it here first, folks. Arbitration is the future. And Jeff said it himself. So we will definitely watch closely. Well, good. And just to give a very quick preview on this one, too, because Jeff, you mentioned it. We are going to, in the future, have your colleagues from the ICDR side of the house come on, and we're going to bring some of the new folks from Singapore and a few other people. So more to come. And it's just incredible to see.
Jeff: We look forward to it. And J.P., I'd love to have another sit down with you. It's been great.
J.P.: Good. We absolutely will. So that then will conclude our discussion at the American Arbitration Association for now. And I want to thank our guest, Jeff Zaino of the AAA Commercial Division for his invaluable insights. And I want to thank you, the audience, for listening today. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should absolutely as well feel free to reach out to Jeff. I know he's super responsive and he would love to chat with you directly if you have any questions. And we look forward to having you tune in for future episodes of the series, including future updates with Jeff and our podcast with the ICDR as well. So thank you everyone. And we will be back.
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Mehak Oberoi, Legal Head/General Counsel for GE Vernova, Hydro Power, joins Niyati Ahuja to discuss the importance of lawyers understanding business needs and the intricacies of construction disputes, emphasizing the importance of claim avoidance and the challenge of finding the right arbitrators for a case. The conversation covers top tips for minimizing risks during the construction phase, including detailed briefings and early involvement of project managers, before discussing the impact of technology on dispute resolution.
J.P. Duffy welcomes Luis Martinez, vice president of the ICDR, and Thara Gopalan, director of arbitration and ADR for the Asia-Pacific region, to discuss the organization and its strategic plans for expansion in Asia. Together, they explore the ICDR’s role in the global arbitration landscape, the opportunities and challenges that lie ahead in this dynamic region, and the potential impact of these developments on the global arbitration community.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights, and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights, in which we will discuss the ICDR and its Asia initiatives with Luis Martinez and Thara Gopalan, who are both vice presidents of the International Center for Dispute Resolution, or ICDR. I'm J.P. Duffy. I'm an international arbitration partner with Reed Smith, based in New York, that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai where I previously practiced. I also have the good fortune to be listed on the ICDR arbitrator roster and to regularly sit as an arbitrator in ICDR Matters, as well as acting as counsel in arbitration governed by the ICDR rules. We're very fortunate to have with us today a repeat guest, Luis Martinez. Luis is the vice president for the ICDR, which is the international division of the American Arbitration Association. Luis is responsible for their business development covering the East Coast of the United States, Latin America, the Caribbean, the EU, and the UK. He's co-chair of the ABA's International Arbitration Committee and an honorary president of the Inter-American Commercial Arbitration Commission. He's admitted to practice in New York and New Jersey and is a dual citizen of Spain and the United States. And our third guest today is Thara Gopalan. Thara leads the ICDR in Asia and is based in the organization's Asian headquarters in Singapore. Thara brings extensive experience in commercial disputes to the table. Prior to joining the ICDR, she was a commercial disputes attorney, representing clients in international arbitrations and at all levels of the Singapore courts. Her expertise spans a wide range of industries, and she has a proven track record of successfully navigating complex legal issues, including high stakes to bet the company disputes. So as you can see, we have excellent guests today, and Luis and Thara will be able to tell us not just about the ICDR's ongoing initiatives around the world, but in Asia in particular. So we're really looking forward to hearing their insights. Let me just set the table a bit by talking for a moment about the ICDR for those that aren't as familiar with it. The ICDR was established in 1996 and is the international division of the AAA, which was itself founded in 1926. The ICDR provides dispute resolution services to businesses and organizations around the world in cross-border matters and administers all arbitrations filed with the AAA that have an international component. While it's based in New York, the ICDR has offices in Houston, Miami, Chicago, Los Angeles, and Singapore. And it also maintains a separate group called ICDR Canada for Canadian disputes. The ICDR has some of the most modern rules in the world, which it last revised in 2021. And you can learn more about those innovations in a podcast I recorded with Luis in April 2021 that's available on iTunes, PodBean, and the Reed Smith website. Now, to give you a sense of the scope of the ICDR's caseload, it administered 848 new claims in 2023 with an amount in controversy of 5 billion. So as you can see, they're one of the largest and most active arbitral administrators in the world. And we're really fortunate to have Luis and Thara here today to talk about that. Now, let's jump right in on that caseload and those caseload statistics for a minute. Luis, of the 848 new cases filed in 2023, what were the top three industries represented?
Luis: Well, thanks, J.P. And it's a real pleasure to join you again on this podcast series and to be here with my colleague from our Asia Case Management Center. To touch base, our statistics are available on our infographics, which we do put one together each year to give some summaries and highlights of our particular caseload. You can find them on our website at icdr.org. But the top three caseloads came in using international arbitration, the ICDR system in the technology sector, the international construction sector, and international financial services. Those are the top three groupings we saw last year in 2023.
J.P.: Now, Luis, that's interesting to me. I think the third category you mentioned was international financial services. Can you expand on that a bit? Because that's an area that I think is underrepresented in most institutions in the international arbitration space.
Luis: Sure. They cover a range of different subtypes in the financial sector. There could be cases involving the financing of infrastructure projects. There could be cases involving financial documents in M&A agreements or shareholder agreements. It is an interesting cross-section, and it is an area that we are focusing on, not only in the international sector, but also working with our colleagues in the domestic divisions. So I think that with the construction and the technology caseloads are areas of focus for us.
J.P.: That's great to hear. Now, Luis, tell me a bit more, too, about the technology sector and the types of cases you're seeing there.
Luis: Sure. And that has been an expanding caseload for us in the last several years. The largest subtypes of these cases, they include, for example, software system developments. We have cases in related to that with partnership and joint ventures. You could have subcontracting agreements with independent contractors and, of course, licensing disputes. An interesting fact that goes with that is that over two-thirds of these technology cases, they actually settle prior to an award hearing and 28% prior to incurring any arbitrator compensation at all. As you know, we do a great deal at the outset to try to explore any procedural efficiencies. As we covered in the rules, the mediation step is actually obligatory with us unless the parties opt out. We will be amenable, of course, especially if the case falls within the appropriate range, use the expedited rules. So whatever the institution can do to bring the parties together and try to get these things settled at the earliest possible step is something that we try to explore.
J.P.: That's really interesting. And I guess it's unsurprising to me that the technology sector would be so highly represented in the case statistics, because we really are seeing a lot more cross-border technology transactions, both in software, hardware. I mean, I think all the different facets of the technology sector, which is really, really broad. So that's pretty interesting. What are some of the other industries, Luis, that you're seeing cases come from?
Luis: The other top leaders that use our rules are the real estate. We have entertainment cases. We actually are the administrators for the International Film and Television Alliance that also has opted to use our rules. Insurance, energy is very important. We have subgroups, by the way, that we've created joint teams internally, combining international and our commercial colleagues to focus on various sectors. So energy, construction, life sciences, financial services are all areas where we're pooling our resources and studying the market and seeing how best to position our domestic and international services. Energy is very important. And I think, you know, the subtopic of that, of course, obviously the upstream and downstream types of disputes, but certainly the ESG-related claims that we're going to be seeing and we're forecasting that that's going to be on the rise, Cases brought to mandate perhaps climate change-related policy or conduct. Cases brought to seek financial redress for damages associated with climate change, etc. And I think the energy sector is going to see a surge on that and probably some other sectors too because it's not limited only to the energy sector.
J.P.: That's really interesting. And just to circle back on one of the earlier industries you mentioned, it's kind of fascinating to me. I've had the opportunity to sit as an arbitrator and to act as counsel in a few entertainment cases. And that's a sector globally that I think gets overlooked on occasion. People tend to not realize how broad that industry is and how much cross-border activity there is in that industry. So pretty fascinating.
Luis: It also plays a large part in our history. I mean, as you mentioned, the ICDR was started in ’96, but going far back as 1927, we had a foreign division. And in the 50s, we also worked with the motion picture industry, which really helped us establish offices throughout the country because they wanted to have local offices in many locations where they have theaters. And that really led to our national infrastructure to provide ADR services in the United States.
J.P.: Interesting. I was not aware of that history, but that makes an awful lot of sense. Now, let's turn to Thara for a minute, just to sort of talk about that caseload as well. Thara, how many of those cases had an Asian component to them?
Thara: So we're seeing about 351 Asian parties use our services in 2023. A lot of these parties come out of China, about 174 Chinese parties. And our second largest user is India at about 32 parties. We've got some uses in Central Asia as well as Southeast Asia and Korea as well. Those tend to really focus on construction as well as energy projects.
J.P.: Interesting. So just my sort of back of the napkin calculation, a little over 40% of the cases have an Asian component to them, if I've understood you correctly.
Thara: Absolutely right. 351 out of 848.
J.P.: That's great. And then of those users, predominantly China first and then India second.
Thara: That's correct. So China from really all over the Chinese market, whether that's Beijing, Shanghai, Shenzhen, and Hong Kong parties as well. But we're seeing that across a whole gamut of industries, a lot in technology, but quite a significant number in construction as well.
J.P.: That makes a lot of sense. And I would assume, I may have missed you saying it, but I would assume energy is a relatively significant one there as well.
Thara: That's absolutely right. You'll find that a lot of Chinese, Japanese, and Korean contractors are building some of the energy projects that we're seeing in Southeast Asia. And there's a big sort of energy transition era that's going on in Southeast Asia. So a lot of Chinese parties are involved in that, and we're seeing some of that work come to us.
J.P.: That's great. Now, amongst the Indian parties that you're seeing, what sectors do those cases typically fall into, if any?
Thara: Some of those cases are pure commercial cases, things like contractual disputes, partnership disputes. But we are seeing some technology cases, especially from parties situated in Bangalore. And we've got a small number of construction and infrastructure cases as well.
J.P.: Interesting. I would suspect that you're going to see many more technology cases. And I'm also surprised to hear that there aren't more life sciences cases. But I think that is probably coming as well, because those are two sectors I see an awful lot in the Indian market. Unsurprisingly, given the makeup of the Indian economy.
Thara: Yeah, you're absolutely right. I think pharmaceuticals, life sciences is a really big economic driver for India for some time now. And we probably will expect to see a lot more of cases that come out of those regions. But for the time being, really a lot of the stuff that we are seeing is in that technology and construction space.
J.P.: That makes a lot of sense. That makes a lot of sense. Now, amongst the caseload or the 2023 caseload, how many cases were emergency cases?
Thara: Right. So we've actually had about 160 cases up till the end of 31st December 2023 that are emergency arbitration cases. And quite a lot of these disputes, we had 72, I think, where emergency relief was granted either partially or in full. 24 of those cases, parties settled. 21 cases, the application was withdrawn.
J.P.: Interesting. Well, it's such a high number of cases settling at the outset. I think that's a real testament to how the ICDR does things because I'm not sure that's the case with every institution. So kudos to the ICDR for its administration plans.
Thara: You know, some of the things that are really interesting about the ICDR, and I love sharing this number because it's just astonishing, really. We have 72% of cases settle out of all arbitrations that are filed with us, and over 30% of those settle without any arbitrator compensation. That's based on a study that we commissioned in 2016, and we are in the process of updating that, but we expect those statistics to be roughly similar.
J.P.: Interesting. Now, will those statistics also break out? I know you said about 30% of those cases will settle without any arbitrate or compensation. Will it also break out, for instance, cases that settle before the final hearing or after the preliminary hearing conference? It would be interesting to see. And I don't even know how you would capture that easily, but the various stages of which cases settle.
Thara: Well, I've got to discuss that with my data analytics team. I don't think they're going to be my best friends if I make them do all that work. But certainly 72% before final award is just kind of remarkable. I don't think I've seen comparable statistics anywhere else.
J.P.: Yeah, I certainly haven't heard of any, so that's pretty amazing.
Luis: I will add that technology that we are implementing, incorporating AI, has been the focus for us, especially with the arrival of Bridget McCormack, who's really emphasized the need to update and focus on innovation, on the incorporation of AI. We're really looking at what we can do to simplify the capture and tracking of our data with these new tools. And the team has been increased, including adding some data scientists as well. So we all know that data is king, especially in this field. Obviously, we're bound by confidentiality to a great extent. But where we can pull relevant data from the actual process without revealing the identity of the parties, I think will really be helpful for the marketplace to understand the ICDR caseload and system. So it's an exciting time for us with this focus on AI.
J.P.: Yeah, that's really great to hear because it's such an interesting dichotomy that confidentiality is so important and such a valuable aspect of the process, but it does hinder some of the ability to get transparency and understanding from the outside. So finding a happy medium there with tools like AI is really important. Let's transition a bit to talk somewhat more about the ICDR's Asia plans. Thara, you've obviously been on the ground in Singapore for quite a while. Why don't you tell us a little bit and tell the audience a little bit more about the ICDR's presence in Asia?
Thara: Thanks, JP. So we've actually been in Asia since February 2006, where we were invited to come into Singapore to help them with their plans to grow Singapore as a hub for arbitration. We officially started an Asia case management center in 2019, and that's staffed with full-time case managers who handle a substantial portion of our Asian caseload. Apart from our sort of formal setup, what we've been doing in the last couple of months is really establishing inroads into the markets directly across Asia. We've refreshed something called the ICDR Asia Advisory Council, And that's chaired by a leading arbitration practitioner, former president of the CIArb, Francis Xavier Senior Counsel. And we've also set up national committees in Singapore and the greater China region. We will shortly be setting up a committee in India. And we're really excited about that because the whole gamut of AAA-ICDR is actually going to descend on India to launch that in a couple of weeks.
J.P.: That's great to hear. That's great to hear. Well, Francis Xavier is certainly an excellent person to help with that effort. And it's really wonderful to hear about the India Initiative, because that is such an important market. It's one I've practiced in or dealt with, I should say, more accurately for well over 20 years. And it's just such a rich market that really has so much possibility. So really wonderful to hear. Now, in addition to India and China, what are some of the other markets that the ICDR is focusing on?
Thara: Well, we're really looking at sectors, I want to say. So technology and construction are the focus, and we're sort of looking at geographic markets based on those sectors. So for the time being, apart from China and India, there's actually a lot that's going on in Southeast Asia at the moment. Malaysia, Indonesia, and Vietnam all have a ton of infrastructure projects that are up incoming and plans for the construction of significant infrastructure in the next five to 10 years. And a lot of that is being built by Chinese contractors, Japanese contractors, and Korean contractors, in addition to the very large domestic players in each of these markets. So that's really where a lot of our attention is going to be focused on for the next couple of years.
J.P.: Wow, that's really impressive. That's really impressive. Now, what are some of the other initiatives that the ICDR has to strengthen its ties in Asia?
Thara: What we're really focusing on now is trying to spotlight thought leadership that's coming out of Asia. We've got a ton of really clever lawyers all over Asia, and we're trying to give them better opportunities to have a greater voice, rather, on the global stage. So that's something that our national committees are working really hard to do. In Singapore, that's led by Theo Shen Yi Senior Counsel, and in Greater China, that's led by Dr. Zhang Lixia. So there's a bit of a focus on trying to ensure that there's pathways for younger practitioners who are up and coming in the market, that we tap on the expertise of our extremely qualified and senior international panel of arbitrators, but also that we spotlight or we shine the spotlight rather on groups that may not necessarily have as much access to high-powered arbitration careers. So in some jurisdictions, that might be minority racial groups, and in other jurisdictions, that might be gender-diverse groups like women in arbitration, for example. So those are some things that we're really trying to do to ensure we make a positive difference in the market, but also that we're spotlighting local practitioners as we engage in our efforts in those markets.
J.P.: That's excellent to hear. Now, let me drill down on that a bit because some jurisdictions are obviously very well known in Asia for being thought leaders. And the one in which you sit is an obvious one to me. India is certainly an obvious one, and you see a great deal of thought leadership coming out of China as well. But what are some of the specific ways that you're trying to increase visibility for practitioners in those jurisdictions? Is it through increased speaking opportunities, increased publication opportunities. How are you going about that?
Thara: So you've hit the sort of nail right on the head. Speaking opportunities and publications are the main focus of these committees. We will be bringing really substantive programs that involve genuine thought leadership, not purely sort of anecdotal recollections through to major cities across China as well as India. In China, that's Beijing, Shanghai, Shenzhen, Hong Kong. In India, for a start, that's going to be Bombay, Chennai, Bangalore, and Delhi. And of course, in Singapore, we're fairly small in Singapore. So that's really going to be all over Singapore that we're trying to do these programs. But apart from programs, we do have publications that have always been run by the AAA-ICDR, and we're looking to increase Asian content on those publications. Be that the AAA-ICDR blog for sort of short-form contributions up to about 2,500 words, or the AAA-ICDR dispute resolution journal, which is for slightly longer-form content.
J.P.: Excellent to hear. Excellent to hear. And let me put a very quick plug in for the dispute for the DRJ, which is the journal. I published articles in there. I always encourage our associates at Reed Smith to do so. It's a really excellent publication. It's really wide reaching. And it's a huge, huge benefit to you personally to put something in there in the audience. So definitely submit articles. It's a really top-notch publication and a wonderful way to increase your exposure yourself. So excellent to hear that you're going about that. Now, I'm sure we could talk all day. And what I'm going to do is rather than continue to do that, I'm going to reserve my right to call you guys back. But let me move on before I do that to some of the ICDR's other plans. I don't want to lose sight of those before we conclude this podcast today. So one of the things that's really amazing is the AAA has been very active recently. Luis, you mentioned Bridget McCormack taking over as president about a year and a half ago. You talked about some of the IA initiatives. There's been the recent ODR.com acquisition. With all that and the fact that the AAA is coming up on its centennial anniversary in 2026, which is an incredible achievement, there's a natural opportunity there for the organization to reflect upon its future objectives. What would you like to see the ICDR accomplish in the next five years?
Luis: Well, I really like the direction we're going in with exploring our traditional caseloads. Of course, we always start from the position that we want to make sure our services, the administration of arbitrations and mediations are at the top level that they can be. And we've looked at that and how to improve those mechanisms and the related technology in our administrative platforms. But I think there's so many new opportunities for us. You were discussing some particular caseloads. Certainly, you're aware of all our initiatives in the life sciences sector. We have an advisory committee that focuses on that particular market. We're looking at enhanced arbitrator selections and lists that have high levels of experience for those particular types of disputes. Other markets that I think are important is we're seeing a surge in cases that we administer involving sovereigns, states, state-related entities, for example, in Latin America, in construction and infrastructure projects, where the participating sovereigns actually design the arbitral provision they're going to offer perhaps a potential for an investor. And we've been selected to administer a number of caseloads following that type of mechanism and example. The ODR acquisition, which is relatively new, presents us with a number of opportunities. The ODR platform is incredibly sophisticated. It has some incredible features to be able to customize really on a dime for the needs of a particular sector or a caseload. It has language capabilities. And we're looking now as a team, all of us to explore in our assigned regions, what potential opportunities there are to handle caseloads that we would be hard pressed to bring in because we didn't have a tool such as odr.com. So I think that opens the door for us to explore some emerging markets. So looking at technology, looking at emerging markets, looking at cases with sovereigns and the focus on the sectors are all very promising directions for us. And I should really mention, by the way, that the AAA itself has invested considerably and expanded the ICDR team. We now have three new people working in just the business development side. And I think that expansion will allow us to explore opportunities that there were just not enough hours in the day before to do.
J.P.: Wow, that's a very ambitious program. And that's wonderful to see. Not surprising given the trajectory that the AAA ICDR is on, but wonderful to hear. Now Thara, where would you like to see the ICDR in Asia in the next five years?
Thara: You know, I think apart from innovations in procedure and technology, where I think we've really been leading the charge, what I do want to see is us focusing on a lot more appropriate dispute resolution, as opposed to purely alternative dispute resolution. The AAA ICDR really does have the full suite of dispute resolution services, everything from neutral evaluation, mediation, arbitration, as well as disputes, avoidance boards for construction. So we want to see parties have the information and have the resolve to be able to use the most appropriate mechanism for resolving their disputes across all disputes that they come across.
J.P.: Excellent. That is truly, truly, again, a very ambitious and sage outlook. And I'm quite certain you're going to accomplish it with the efforts that you're putting behind it. Well, one thing I just wanted to circle back on quickly is Luis mentioned ODR.com. We are going to have an episode released in the near future where I speak with Jeff Zaino, who's the vice president of the commercial division for the AAA. And he discusses the ODR acquisition a bit more as well. I definitely recommend that to listeners because it's a truly innovative move by the AAA and a really, really good reflection on how forward-thinking the AAA ICDR is. Well, we've got a pretty good idea of what the ICDR has been doing around the globe and in Asia in particular, and we've got a very good sense of where the ICDR would like to see itself in the next five years. So I would definitely like to reserve my right to bring you both back to hear how that's gone because I'm quite certain with all the forward-thinking and all the effort behind it that the ICDR will be highly successful in all its initiatives. But with that, that will then conclude our update on the ICDR and its Asia initiatives. I want to thank our guests, Luis Martinez and Thara Gopalan from the ICDR for their invaluable insights. And I want to thank you, the listeners, for tuning in. You should feel free to reach out to Luis or Thara with any questions you might have, as I'm sure they'd be happy to speak with you directly. You should also feel free to reach out to Reed Smith about today's podcast with any questions you might have. And we look forward to having you tune in to future episodes in the series. So thank you, Luis. Thank you, Thara. And we do hope to have you back soon.
Luis: Thank you.
Thara: Thanks so much for having us, J.P.
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Gautam Bhattacharyya welcomes Rebeca Mosquera, Reed Smith senior associate and the President of ArbitralWomen. Rebeca shares her career journey, detailing her path from Panama to Alaska, and then to New York, the mentors who have shaped her path, and the inspirations that fuel her future. The conversation then discusses the significance of ArbitralWomen, its notable achievements to date, and Rebeca's vision for the association's future reach and impact.
J.P. Duffy welcomes Serena Lee, the new President and CEO of the International Institute for Conflict Prevention & Resolution (CPR), for an engaging discussion about CPR's foundational principles, its unique origin as an organization dedicated to helping corporations, and the influential role it plays in the global arbitration community. Serena explains CPR’s inner workings, delves into recent case statistics, and shares her vision for CPR’s future.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the International Institute for Conflict Resolution, known in the legal community as CPR, with Serena Lee, who's CPR's new president and CEO. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai, where I previously practiced. I also have the good fortune to be listed on the CPR arbitrator roster, which is called the Panel of Distinguished Neutrals. With me today, as I mentioned, is Serena K. Lee. Serena is a lawyer qualified in New York who previously practiced on the West Coast. Before joining CPR, Serena served as the Vice President of Operations for JAMS in San Francisco, where she managed three resolution centers, San Francisco, Santa Rosa, and Seattle, and oversaw approximately 85 neutrals. And before that, Serena was vice president with the AAA in the construction and commercial divisions, first in Seattle and then San Francisco. So as you can tell, Serena brings a wealth of experience and perspective to her new role and to the audience. And we're thrilled to have her because she's a very recent addition to CPR. She's going to give us some updates on everything that CPR has been up to and what she plans for CPR to do. Before we begin, let me just give some brief background information about CPR itself for those that aren't as familiar with it. CPR was established in 1977 in New York by James F. Henry to help businesses find better ways to resolve commercial disputes. CPR does this through the CPR Institute, which acts as a think tank and a thought leader, and through the CPR Institute's subsidiary, CPR Dispute Resolution Services, which provides dispute resolution and prevention services to users, including the administration of CPR's arbitration rules. CPR has a unique origin because it was established by in-house counsel from Fortune 100 companies to bring together corporate counsel and their law firm clients to collaborate on ways to reduce dispute resolution costs by finding alternatives to court litigation. Today, CPR has a membership community that comprises corporate counsel, law firms, academics, and neutrals. Over the decades, this unique membership community has produced a variety of thought leadership pieces, and innovative yet practical rules for arbitration and mediation, as well as the CPR pledge, which more than 4,000 companies and 1,500 law firms have signed to show their commitment to considering ADR for the speed resolution. So as you can tell, CPR, while it is an arbitral administrator, does a lot more and is relatively unique in the space in the way that it operates. So with that, let's turn to Serena a bit, because I want to hear from her about everything that CPR has been up to. Serena, welcome.
Serena: Thank you so much, JP. Pleasure to be here. Good.
J.P.: Well, we're so glad you could join us. And I think, you know, one of the first things that our listeners would love to know is, how many cases did CPR administer in 2023?
Serena: Well, thanks for the questions, J.P., and you're right. I think often people are interested in the number of cases CPR administered. So CPR Dispute Resolution, our arbitral provider subsidiary, administers cases, including complex commercial arbitrations, and offers a number of related services such as mediation, fund holding, appointment services, and others. Our first rule set ever published was actually a non-administered arbitration, and we offer services to help parties through those ad hoc processes. So there's really not a straightforward answer to your question because it depends on how we dissect the data. Oftentimes, parties don't tell us if they are using CPR for their ad hoc arbitrations. Sometimes the parties will come to us for only parts of the services they're seeking, such as for fund holding or for appointment or for conflicts checks. So I don't have a specific number of how many cases CPR has administered based on the data I just shared with you. But I can tell you that CPR dispute resolution handles fewer cases each year than the AAA or JAMS. But because we're smaller, our team is oftentimes very high contact and responsive to questions. So I guess it's all good.
J.P.: That's a great answer. Now, it highlights a point, too, that I think is pretty interesting. What year, if I remember correctly, CPR introduced administered rules in sometime around 2010. Is that correct?
Serena: Close. 2013 was when our first set of administered arbitration weeks were located.
J.P.: Okay, so Serena, so the administer rules got introduced in 2013, and if I've understood you correctly, CPR still gets used relatively frequently by parties, or the CPR rules do, for non-administered cases.
Serena: Correct.
J.P.: What's the breakdown for administered cases between domestic and international cases?
Serena: The majority of the cases that we are aware of were domestic, but we also have received international cases. They're devoted to certain regions, such as in Canada and in Brazil, being maybe our two most prominent areas where we have received international matters.
J.P.: Interesting. And are there particular industries that feature more prominently in the cases than others?
Serena: Well, from the industries that we've seen in the past few years, that they are, as many providers also experience, they come from a wide variety of industries and sectors. Employment, healthcare and life sciences, energy, oil and gas, accounting and financial service are some of our largest caseloads. We also see franchise, insurance, technology, sports law, construction, professional fees. I'm rattling off some of the ones that come to mind. Of course, straight commercial matters as well. And we do see sometimes unfair competition matters come in as well.
J.P.: Interesting. So it's really a pretty broad range of disputes that CPR helps administer.
Serena: Correct.
J.P.: That's great. Now, how much of that is driven by CPR's membership? And it may be worth it when you answer that just to give a little bit of background on that and to explain how the CPR membership process works and maybe talk a bit about who some of the CPR members are. So to probably take this time to distinguish between the CPR Institute, which I'm going to refer to as the Institute, and CPR Dispute Services. So the Institute, of course, as you had mentioned, J.P., was started in 1977. And that is the think tank or the thought leadership portion of CPR and essentially why we exist. Now, CPR dispute resolution was created some three years ago to help parties who were interested in administered arbitrations or other ADR services to help administer those. So they were created as a subsidiary under the Institute to do so. There is a division between the Institute and the work that the Institute does and administration and dispute resolution services that CPR Dispute Resolution provides. Those who are interested in coming into the Institute as members of the thought leadership portion of CPR join as members and they can join as individuals, they can join as firms or as corporations. We have some of the largest organizations to the smallest companies in America who are interested in joining CPR Institute because they're interested in being part of the dialogue and workshopping ideas and solutions to issues they're seeing out in their business landscape. And law firms who also join as well as academics who want to contribute and also listen to what the businesses are asking for and what they're trying to resolve to make sure that the processes are efficient, that they're fair, that they are practical in a business context, and so forth. So I make mention of that because the Institute has very little to do with the case management. The only thing that the institute provides for CPR dispute resolution are the rules and the protocols are promulgated within the institute are then pushed over to the DR or the Dispute Services to issue out and to use. So those who file cases with dispute resolution services have no real interaction with the members. I hope that's clear.
J.P.: It is clear. Yeah. And I think there's a lot to unpack there that's really fascinating and different than a lot of other institutions. So let me just take that in pieces if I could. So the Institute has, that's what has the 4,000 members and the 1,500 law firm members. Is that right?
Serena: Yes.
J.P.: Okay. What are some examples of say fortune 500 companies, if you don't mind sharing that are members of the Institute?
Serena: Certainly, I mean, I can't name all 4,000, but if you actually just jump onto our website on the CPR Institute Board of Directors, you'll see some of the board members come from prominent companies such as Microsoft, Amgen, ConocoPhillips, I'm trying to think, Palo Alto Networks, and others. And the law firms, the biggest law firms in the country are part of the Institute. If you also look at our corporate leadership dinner brochure that's also online, you'll see some of the sponsors of the Institute listed, both corporate as well as law firm contributors.
J.P.: Well, that's really interesting, Serena. So if I'm understanding it correctly, those members that you mentioned of the Institute are the ones that are creating the rules pursuant to which cases may be administered. Is that right?
Serena: Well, it's a little bit more nuanced than that. The members can send associates and their in-house counsel and members of their in-house team to be part of committees within the CPR Institute, as well as law firms who also can comprise of neutrals and academics and attorneys from both maybe the more plaintiff's side and defense side. And they are the ones who workshop the protocols as well as the rules. So for instance, right now we are updating all of our rules as we do every five years and within the arbitration rules committee revision team, you'll see that there are members within all the groups I just mentioned, all the stakeholders who are involved at looking at the rules and discussing whether there should be updates.
J.P.: Got it. So really, at the end of the day, is it fair to say the rules are being pretty heavily influenced by both potential users and law firms? Serena: Yes, I would say that the rules and the protocols are created to maximize efficiency. Obviously, the businesses are in the business of not being in law pursuits, at least our corporate members aren't. And also to make sure that the arbitrators who may have some input into whether the rules can be refined or tweaked to promote efficiency or expediency. So I would say that the end users have a lot of say into the rules. And also the academics who are in the space of dispute resolution are part of the committee and part of the conversation to ensure that the rules and the protocols that we're issuing meet due process.
J.P.: That's really great. I mean, I think that's a really unique feature of CPR, that there's so much input from the actual users and the law firms that will likely be recommending it. It's a really unique feature that probably, if I understand it correctly, stems from the way that CPR was created. Is that correct?
Serena: It's exactly correct. Now, because I worked with the two other arbitral institutions, the largest ones in the U.S., I can say for certain that I find the rules and the refinements of the CPR rules to be different based on the feedback from the field.
J.P.: Interesting. Now that raises an interesting transition point, Serena, because you've been in this role, you haven't been in this role terribly long, right? When did you join CPR?
Serena: My first day of CPR was on April 1st. So it's just been four months.
J.P.: Wow. Okay. So still relatively fresh in the role. How have you found it so far?
Serena: It's been just very, very enriching, I think, for years after being, decades of being on the provider side, to finally work with the end users and to talk to the people who are drafting ADR clauses and trying to think on how to avoid disputes early on or to resolve disputes as quickly as they can when they arise in a way that's fair and economical and business friendly. Meaning for everyone, all the parties involved in disputes. I'm really enjoying the fact that I can share the other side of the equation, so to speak, feel as passionately and as dedicated in resolving disputes in a way that can minimize cost and damage to relationships. That's been really rewarding.
J.P.: I like that. You mentioned a way of minimizing damage to relationships, because it's something that I see a lot. I practice a lot in the life sciences space, and I find that arbitration in particular for those types of industries that have a lot of long-term collaborations like life sciences and some others can be really beneficial because it does allow parties to continue doing business together afterwards in a way that doesn't often happen with litigation. So that's a really interesting point to raise. And it sort of me to something else I wanted to just touch on too. Like, are there particular industries that you think CPR is better suited to than others?
Serena: I’m racking my brain because I frankly can't think of an industry that could not benefit from the structure of CPR dispute resolution. I suppose if the parties in a dispute are interested in preserving relationships and have a say in the rules that are being used to resolve their disputes, and they want to make sure that the rules are ones that they can be assured that they are efficient, then they should know that the rules and the process by which CPR Dispute Resolution follows are based on the end users from its creation. I also think that because we are not as big as the other arbitral providers, our case managers are very responsive and experienced, not that they aren't in the other providers, but because our caseloads are smaller, the case managers at CPR dispute resolution can talk through the variety of a la carte services that are available to parties. If they aren't interested in full-blown arbitration, there is something different that we can talk to them about. Our complete case platform is a very secure case management system that was built specifically for dispute resolution. And since we accept submission agreements and our roles were developed by task force of all the stakeholders we just talked about, I think that there isn't a industry or a group that I don't think wouldn't benefit from using CPR, dispute resolution service. I know that seems perhaps a bit self-serving to say, but I think that might be true given the fact that come from the other providers as well.
J.P.: Yeah, no, not self-serving at all. I mean, I think it's the best endorsement you can give. You know, it's a really broad statement that's reflective of how broad the Institute membership is and CPR's genesis. Well, now you've been in the role for four months, you mentioned. So let me ask you this, what would you like to accomplish for the remainder of 2024, given that we're sort of rolling in towards the end of the year?
Serena: Well, I'm very much looking forward to amplifying CPR's mission, our resources, and to involve incredible members here in the U.S. and internationally. We've been primarily focused in Europe, as I mentioned, in Brazil, and I imagine that in subsequent years we'll expand more broadly to other countries. We are actually right now testing a new membership concept to connect our members into areas where they live and they work. So to that end, what I've planned to do is to launch our inaugural regional chapter of CPR, something we've never done before, in Seattle in November. I chose a city that had very strong corporate support. As I mentioned, Microsoft has been a corporate member of CPR for many years, and one of the board members of CPR, John Palmer, is a huge proponent for CPR and its resources. And I also chose Seattle for its vibrant legal community that actively uses alternative dispute resolution.
J.P.: That's great. Now, tell the listeners a bit more about what you mean by the regional chapter.
Serena: Sure. So I'm hoping that these regional chapters can connect and provide those in the legal community with an opportunity to engage in the same thought leadership on a local level and also to consider CPR. In, I think, the ADR space sees our role as the conveners of conversations and discussions. So while we can have national and industry-specific conversations remotely in this day of post-COVID discussions, we also wanted to bring an in-person experience to the local chapters that we are starting. It will be a pilot for us in Seattle. And what I'm hoping that we can provide for a local chapter of CPR is an ability to bring all the local general councils of the large corporations based in that city, as well as the law firms, the law schools, as well as the neutrals who practice in that area to come together, again, to get to know each other in a way that is meaningful so that they may learn from each other to hear each other's perspective in real time. And then to broadcast or transmit their ideas from a regional chapter onto the national roster. There's no reason why the thought leadership can't originate from a regional chapter such as Seattle.
J.P.: That's great. Now, what are some of the other regions that you're envisioning regional chapters for?
Serena: That's hard to say. We have had a very, very strong presence in Houston for decades now. The energy, oil, and gas industries have been great supporters of CPR. I surmise this because they are a very small industry where there are lots of repeat players in the space. So because we're conveners, I think that we may look into Houston as our next regional chapter. And then I think I'll have to see. I think there has been an appetite in other areas such as Chicago. And of course, I'd love to be able to start a chapter in California.
J.P.: Right. Well, and obviously, California is such a large market. You could probably do one in Northern California and Southern California separately. But it remains to be seen, I guess, where you would want to go.
Serena: Correct. I'm also very interested in making sure that we are actively engaged with our members of arbitrators. Our panel of distinguished neutrals has about 600 members, and perhaps I'm showing my years of working with the providers, but I do think that the arbitrators, mediators, and other neutrals within our panel are a hugely important component within CPR, and I like to engage with them in more ways in the coming years. And I know that our law firms and our corporate members really appreciate the role of CPR as the conveners. So to have the opportunity to talk to neutrals and academics about thought leadership in the dispute resolution space is very important to them.
J.P.: That's great. Well, I think it's, you know, from my perspective as both someone who acts as both counsel and an arbitrator, I think it's really great when an institution does solicit the views of arbitrators because in so many ways they are the front lines of what's occurring, right? I mean, obviously end users have the biggest stake and should have the largest voice in my view because they are the people that are impacted by all this most. But certainly arbitrators do see, what works well, what may not work as well, areas that can be improved, things that might be made more efficient. So it's really important, in my view, to solicit the arbitrator's views. And that's a really great initiative.
Serena: Thank you. And I actually think that it's almost vital to ensure that everyone that's in the ecosystem of dispute resolution understand the needs and expectations of each other and to make sure that the rules and protocols that we are promulgating and asking our neutrals to use in their processes make sense and that there is buy-in. And if there isn't buy-in, if there is a way to iterate a better system, that we capture that feedback and to integrate innovations and refinements to process as we move forward into the future.
J.P.: That's great. I mean, absolutely. It's an inclusive environment that considers all the different stakeholders and all the different voices, always produces a better result. So wonderful to hear that that's something that you're considering. Now, that would be for 2024, which is a pretty ambitious agenda, it sounds like. What would you see or where would you like to see CPR in five years?
Serena: Yeah. Well, in five years' time, I, of course, hope to continue to build on an even stronger CPR institute that can work collaboratively with additional stakeholders to identify ways that parties can resolve their disputes more effectively. There's sometimes, I think, a sentiment in the legal community that the use of mediation and arbitration is now a mainstay tool in resolving disputes, in legal disputes. But I still strongly believe that mediation, as is being used now, is still more evaluative. It'd be great if the parties are open to a more transformative process. And I've seen over the years, unfortunately, arbitration being conducted more like litigation. And the benefits of arbitration, namely being more streamlined, quicker, and more cost-effective, and so forth, are being eroded by attorneys who are either not understanding the advantages of arbitration's more informal process, and also arbitrators who may not be willing to streamline the process. So my hope is that CPR can continue to help keep the dialogue of better dispute resolution process, open, engaging, and responsive to the expectations of the parties who go into mediation and arbitration. CPR dispute resolution services, which of course, as I mentioned, only issued out its administered rules in 2013, has shown steady growth year over year as more companies are either submitting their disputes to CPR dispute resolution or they're opting to write CPR rules into the contracts because they're comfortable with the rules and the process designed by the end users. So I'm hoping that we can continue to grow CPR dispute resolution services as well.
J.P.: It's a really important agenda to take on because there's absolutely a dialogue going on in the community right now that you're seeing on various platforms, particularly from arbitrators about, and some of the arbitrators that have been around for a little bit longer, about arbitration becoming too much like litigation, becoming too similar to court procedures, and becoming too burdensome to really achieve its purposes. And it's interesting to see that discussion arise because it sort of goes on hand in glove with, you know, the explosive growth of arbitration as an alternative process. And if it really becomes too much like court, then it's not really an alternative to court. It's just another sort of venue for promulgating those types of processes, which really defeats the purpose in some ways. So it's great to hear the CPR is taking that on and that you want to promote revisiting really what arbitration is about.
Serena: Correct. And I think that we must be vigilant and not rest on our laurels that we think that alternative dispute resolution is being used widely does not mean that it's being used as well as we probably hope or have promised parties at times.
J.P.: Yeah, absolutely. Absolutely right. The mere fact that somebody is doing something one way doesn't mean they're doing it right. That's a very, very, very good point. Right. Well, it sounds like if I'm doing my math correctly, in 2027, CPR as a body will have been around for 50 years. So it sounds like you've got a pretty good handle on where you want to see CPR when it hits its 50th anniversary. So that's pretty interesting.
Serena: That's right. We are actually excited to celebrate our 50th. I believe that the Federal Arbitration Act, I think, goes first in celebrating its 100th year anniversary in 2026, I believe.
J.P.: That's right.
Serena: So in 2027, we'll celebrate our 50th.
J.P.: Yeah, or maybe it's 1925. I can't remember, but there's certainly...
Serena: Oh, I think you might be right.
J.P.: I think they're certainly right around there. Either way. Well, good. Well, there's a lot of ground we've covered, and I think we could probably keep going all day. But it might make more sense to reserve my right to invite you back for a future update, because you've obviously got a lot that you intend to do, and it will be great to hear about how all that execution has gone on all these plans.
Serena: Well, JP, I'd love to come back. I really enjoyed our time together and this experience and opportunity to talk about CPR. And my new role has been welcomed. And I hope that in five years' time or maybe in two years' time, I can come back and report on our efforts to expand our regional chapters and to report back on other projects that we are working on currently.
J.P.: Absolutely. And I'll tell you right now, it'll be a lot sooner than two years time. It's certainly sooner than five years. I'm a little more impatient than that. So we won't wait that long, but thank you. It's been a real pleasure. That will conclude then our discussion of CPR. I want to thank Serena Lee for sharing her thoughts and vision for CPR. And I want to thank you, the listeners, for listening in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should feel free to reach out to Serena as well. I've had that discussion with her. I know she'd be happy to answer any questions you might have. We look forward to having you tune in for future episodes in this series. And we look forward to follow-ups with Serena in the future. So thank you very much.
Serena: Thanks, J.P.
Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
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Gautam Bhattacharyya welcomes Eunice Shang-Simpson (arbitrator, mediator, and lecturer-practitioner) to discuss her career journey, including key roles as a prosecutor, policy advisor, and practitioner. They explore her career highlights, transformational moments, and inspirations, before discussing the challenges and opportunities for improving parity and access in the legal profession, and how the industry can evolve to support future legal professionals.
José Astigarraga hosts Jason File, Director of Legal Affairs and General Counsel at the United States Council for International Business (USCIB), to discuss global arbitration trends, the future of international arbitration, and AI's impact on the field. They go on to explore Jason’s role at the USCIB, his career trajectory, and the distinctions in advocacy before international criminal, civil, and common law tribunals.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
José: Well, welcome, everyone. I am José Astigarraga , and I'm delighted to share this program with you. Very, very pleased to tell you that today we have Jason File, who, as I have the pleasure of sharing with you, is the new general counsel and representative of the USCIB in the United States. And I think we're going to have a really, really interesting conversation with Jason today. Let me tell you a little bit about Jason. He is currently the director of legal affairs for the U.S. Council for International Business in New York. He's a licensed attorney, has a very interesting background. He's licensed in New York, District of Columbia, England, and Wales as well. He's a graduate of Yale University as well as the University of Oxford and Yale Law School and is bilingual. He speaks English and French. He's had a very interesting career. Jason worked as a trial attorney in public and private international law since about 2005, and he began his career with WilmerHale, of course, the top of the top firms in international commercial and investor state arbitrations in a very wide range of cases that he had. Then as well, he worked with Cooley Firm in New York, again, working international commercial arbitrations in investor state, and as well did some court litigation related to the federal arbitration and the New York Convention. And I'll call it arbitration-related litigation. One very, very interesting aspect of Jason's career that I hope we'll have a chance to discuss is that he served as a war crimes prosecutor at a United Nations International Criminal Tribunal, and we'll hear about that. To top it off as well, Jason has taught international law in Europe and has spoken all over the world. So, Jason, welcome. I'm just so pleased that you've made time for us to be able to speak. Perhaps the most logical place to start might be to ask you about, can you tell us about your new position?
Jason: Absolutely. And thank you, José, for inviting me to be a guest on this. And thanks to Reed Smith for hosting. I think it's a great program that you guys have. Getting the word out about arbitration across the world and in the United States is one of the main focuses actually of my new position. I've been in the job now for about four months, Director of Legal Affairs. We have USCIB is a wide ranging business organization that represents the interests interests of our members in many different international organizations, UN, OECD, IOE, and the ICC. And one of our many components of certain policy areas and issue areas is arbitration. We serve as the U.S. National Committee for Arbitration at the ICC. We constitute and we lead the U.S. delegation to the ICC Commission on Arbitration and ADR. We have a nominations Nations Commission, which responds to requests from the Secretariat of the ICC when there is a need for an institutional appointment for arbitrators in pending ICC cases. They come to us with requests to end arbitrators in cases where there's a connection to the U.S. They're either looking for a U.S. National arbitrator or a U.S.-based arbitrator. We also intervene as as amicus curiae in pending litigation in the United States when there is an important arbitration-related issue, often related to either the Federal Arbitration Act or the New York Convention. Sometimes it's about evidence and discovery, those sorts of things. So it's a really fantastic opportunity that I've just started to enjoy, especially in terms of getting a little bit out of the trenches of litigation and arbitration, which is what I was doing for many years, and to have more of a kind of overview opportunity to be able to interact in a thought leadership way and a professional relations way with many of the practitioners in our field. And so it's been a really rewarding few months and I can't wait to continue in it over the coming months and years.
José: I did not realize the whole range of activities of the USCIB. I mean, there's so much that we could talk about. And I want to go back for a second. So I understand the response. And we're going to talk about arbitration and the USCIB's role in arbitration and so on and its vision. But I wanted to ask you in particular. What does your job entail? In other words, what is the responsibilities that you have?
Jason: So as director of legal affairs and general counsel, I am essentially the director of the arbitration committee, which I was just referring to. And I work side by side with Peter Sherwin, who is the chair of our arbitration committee. And we have, I think now 18 different subcommittees within this committee that it's a lot of plates to keep spinning. We have co-chairs from law firms around the United States and sole practitioners as well that run these various subcommittees that involve programming for events across the United States as well as abroad by our expat subcommittee, as well as looking at issue areas. J.P. Duffy from Reed Smith actually is one of the co-chairs of our new life sciences task force. And so we have a lot of different issue areas that we're tackling as a committee, and it's my job to help guide and direct that process across the different committees. I'm also the contact person when we receive these nominations requests, and also responsible for organizing the ICC commission on arbitration. But I have other issue areas that I I handle as well beyond arbitration. I serve as general counsel, so I do those types of general counsel tasks that one would expect in any organization. And I also handle the intellectual property portfolio. So we have member organizations and member businesses who are very focused on international intellectual property policy. And so that's also an area that I have responsibility for.
José: In other words, your responsibility includes not just arbitration, but all of the other aspects of international business that would be of concern to the business community?
Jason: That's right. That's right. We have another good example is within our trade portfolio, we have a focus on investor state issues. And so there is an aspect to that where we're working with UNIDOI and the ICC World Business Institute for a project that they're handling on international investment contracts. That's another area of current study. I think as bilateral and multilateral investment treaties begin to reduce the opportunities or narrow the opportunities to bring claims directly against states, it doesn't mean those disputes are going to go away. They're just going to probably happen in some other format. And I think that international investment contracts will probably be more often the recourse that we begin to see in cases where an investment has gone in a direction that was unexpected.
José: Very, very interesting. That could be a topic of a podcast in and of itself.
Jason: Absolutely.
José: But we'll keep this one sort of at a more macro level. Jason, what is your, if there's a difference, I'll ask you about the USCIB perspective and your personal perspective, but they have the sense that they're likely as overlap. What is your sense of international arbitration, of course, looking towards the future? I mean, how do you see this? It's a very general question, but there's just so many aspects of, well, and you've given us a perfect example, investor state arbitration, gee, is it going to evolve and so on, or how is it evolving? On that sort of macro level, if you had to say, what are you know, what are the three most important trends or developments that you see headed towards a future international arbitration from the perspective of the business community? What do you think they would be?
Jason: Well, I think there is certainly an expansion in specific subject matter areas and industries. I think we're seeing much more frequent use of international arbitration in the technology sector, which wasn't really the case 10 or 15 years ago. And I think that is certainly going to expand. There's a lot more energy, I think, coming from the arbitration community in California, where a lot of multinational technology companies are based and also where they are incubated in garages from the beginning. And so I think that, you know, leading up to the, you know, maybe within the past 10 years, it was more common to see companies, especially larger companies, using local courts and federal courts as their dispute resolution provisions because they had the negotiating leveraging contracts, international contracts, and they would push for that. And I think that sometimes, at some point, there was a dawning realization that winning in court on your home turf in an international case can be a bit of a pyrrhic victory because then you have to go and force that judgment. And if there aren't assets or very many assets here in the US, it starts to to get complicated and the U.S. doesn't have any arrangements or treaties with other countries to enforce those judgments abroad. So I think there's been a growing realization that. International arbitration is really the way to go for international disputes, especially because of that enforcement capability under the New York Convention. I mean, if you win an arbitration in Santa Clara County in California, and it's an international arbitration under the New York Convention, you can enforce that against assets in over 170 countries, you know, that are based on reciprocal enforcement under that convention. So I think that that's one trend that is going to continue happening, and we'll be seeing more of those cases in the future alongside the very traditional sectors that we've been seeing all along, like energy, construction, infrastructure, those sorts of things. Another thing I think that is happening is within the United States, I think, and this is something that I'm hoping to encourage in whatever way I can, that international arbitration, will be seen as more of a separate practice area. I think that the United States is a little bit different from what I've seen in Europe, for example, where international arbitration is treated a little bit more like a specialization. And here in the US, I think there are a lot of litigators who might get a case from a client that is an international arbitration case, and they'll just take it and run with it. And sometimes if they're going against a firm that is specialized or some attorneys who are specialized in this area, they might get outmaneuvered in certain areas, either in the arbitral nomination process, or it could be, not grasping the important differences in the way that document disclosure works or the way that you build a case, primarily your case in chief going in on paper, those kinds of things. I think that that's starting to change in the US. It's just been a little bit slower. And I'm looking forward to that happening because I think it's going to be good for the practice area, for the attorneys attorneys who are focusing on this area. And I think it's going to be good for clients and the companies that are using this dispute resolution technique.
José: You know, that's very interesting, and it very much resonates with me. I'll tell you two quick points. Basically, sort of the idea is you have excellent, excellent litigators, of course, and one of the challenges that they face is coming, if they're new to the world of international arbitration, is, as you point out, is that there are some nuances and specific requirements for international arbitration, and one firm can gain an advantage over the other. I sat as chair in a tribunal, and it was interesting because both excellent firms on each side, but by and large, made up of domestic litigators. And they got around the challenge by stipulating that the arbitration would proceed in accordance with the federal rules of civil procedure. So it turned out to be basically a mini U.S. courtroom trial with objections to evidence and all things that go along with it. So I thought that was a very, very interesting way for them to deal with that challenge. And the other part is that I so believe in your point about, look, as time goes by, there is just a need for, quote, more specialization. And I think particularly as clients become and all have become more and more sophisticated and attuned to international arbitration, I think that specialization is very key. I will tell you that when I, as you know, I founded a boutique on international arbitration back in the year 2000. And really what one of the things that drove me to that was my complete conviction that that was the direction that this was going. I had originally started out as a US courtroom litigator, but I saw what was happening in international arbitration and really believed on the idea of, you know, it's becoming a specialized practice. And when we founded the firm, my point is that the tagline of the firm was the power of focus. In other words, we were focused on that. And I think that clients responded to that. So I think you are 100% on the money that this is going to continue to happen.
Jason: I think that example you gave is a really good one because it does demonstrate that arbitrations are ultimately customizable however the parties want. And if they feel more comfortable having a federal court style arbitration that is using kind of, you know, full discovery techniques, you know, depositions, all that sort of thing, then that's perfectly fine. And they can absolutely do that if they want. And by contrast, if you have a situation, I had one case where we were opposite a, you know, large, global, very reputable firm, but litigators who were primarily federal and state court commercial litigators. And we were fighting over the scope of discovery or disclosure in this case. And we were making reference to the IBA guidelines on the taking of evidence. And this was a completely new concept for them. And. By and large, two of the three were more internationally minded. They accepted the guidelines, the applicability of the guidelines. And so I think that that was a surprise to them.
José: Absolutely. Your message definitely resonates, no question. Let me ask you, because you're based in New York. I know really you operate throughout and much beyond New York, but I understand you're based in New York. And one of the realities of the international arbitration space is that there are seats that are actively competing with each other to try to attract more international arbitration work. What is your view on that and the way that you see seats evolving and so on? Do you have any thoughts?
Jason: Yeah. I mean, I think at, you know, at USCIB, we definitely are advocates for arbitrations being seated in the United States. You know, we have a strong, capable judiciary that, you know, especially on the federal side is familiar with both the Federal Arbitration Act and the New York Convention's applicability. And I think we have a lot of solid protections for Hardees when they decide to have their arbitrations in the United States. We're agnostic as to the cities that they choose. I think that the statistics show that New York continues to be the most common seat for arbitrations, international arbitrations, in the United States. However, there are many other locations that are popular, And sometimes it depends on the industry or the type of dispute. As you know, having been based in Miami for a long time, Miami is a huge center for international arbitration, especially related to Latin American disputes and disputes that are heard in Spanish in many cases as well. And the ICC conference that happens every November or December at the end of each year in Miami has become one of the sort of marquee events for the Americas, North and South America, for arbitration, especially related to Latin America. I also think that you see more arbitral seats being selected in California, San Francisco in particular. And that, I think, goes back to this trend that I was identifying earlier with technology companies. Putting arbitration clauses in their international commercial contracts more frequently, life sciences companies as well. And we also have a lot of activity in Texas, in the Midwest, in Chicago. I think that we're moving towards a trend of having more seats and a more diverse set of seats within the United States. And I think that that's a good thing because it can build on the strengths of the international arbitration bar across the country, not only in select cities that have traditionally hosted the majority of them.
José: Interesting. And it's always interesting, you talked about sort of industry-centric seats and so on. And so that would be a topic in and of itself, but there's so much more for us to cover. And in particular, I wanted to talk to you about some of your practice experience. But before we switch, I'm going to ask, what I think is on the front of many, many people's mind, and that is, what is your sense of the impact that artificial intelligence is going to have on international arbitration?
Jason: Yeah, it's definitely the question of the day. I think almost every conference also has a panel on this. It's a frequent topic of discussion. I think the things that I've heard the most, which I'm not going to really rehash, are there's a lot of talk about making discovery and document review and that sort of thing more efficient, being able to process more information quickly without having to rely on human labor, which is one of the big cost drivers in our industry. Industry, you know, creating timelines, that sort of thing. And then there's also a lot of talk about the risks of relying too heavily on AI, you know, asking it to write submissions, and then it, you know, it invents and quotes from fictitious cases and that sort of thing. You know, we've all talked about that case in New York where this happened, and there were sanctions for the attorneys. But I think that there are other interesting things that are going to happen as well as time goes on. I think that not only for international arbitration, but for business dispute resolution in general, I think it's going to change a little bit the nature of the evidence that we rely on. I mean, I think that one of the main issues in many cases is establishing knowledge or intent. And the holy grail for that for the past decade or more has been looking at people's emails and trying to figure out what they received and what they said at a given time. But now you can get your emails summarized by AI. You can have your emails written by AI. And so. I think that we could end up in a position where it's going to be more credible when people say, I didn't see that, or I didn't even write that. And if that's true, then we may see an evolution in the sort of the value of certain types of evidence that we've been relying on for a long time. It's hard to say where that's going to go. But you know, if you can send an AI like to a virtual meeting, as you can now, and get a report, they could say, I didn't hear that person say that because my AI didn't report it to me. And so these, I think, are going to change the way that arguments are made and the way that evidence is collected. The other issue, I think, is that it makes, I think it's going to make us have to reflect a little bit more on some of the kind of pathologies of our systems of dispute resolution, especially in the United States, where we have this heavy reliance on very broad discovery, I think. And we did a panel on this, actually at Salesforce headquarters back in April, along with my colleagues from the ICC business development side of things, Marek Krasula and Abbey Hawthorne. This was a really interesting panel. I was moderating this panel, and a lot of the panelists were talking about how the AI could just end up amplifying what we're already doing, in a sense, by saying, now. If we have more processing power, and we don't have to, you know, have people looking at all of this information, then let's collect more, let's get more data. And let's, let's do broader discovery. And if we don't think about how AI interacts with the system that we have, I think it may not actually be a problem solver, it's just going to be a sort of a tool that that augments, you know, what we're already doing. And it may not, you know, that the data collection may just grow to fit the capacity instead of thinking more critically about how we might make this process more efficient.
José: Very, very interesting. Again, there's so much we could talk about, but before transitioning, let me pick up on something you said in the ability of AI to summarize. I mean, one of the things, particularly in things like investor state, but obviously private, big private commercial cases as well, that takes place when you're writing an award is, of course, this detailed procedural history about, you know, the case. What is your or the USCIB’s or the ICC's view on the advisability proprietary, propriety of having AI do the procedural summary?
Jason: I mean, it's complicated, and we haven't issued any official views or guidance on this issue. But it is something that I've seen, again, come up many times in conferences. It's a source of anxiety for people, I think, because I think that ultimately, arbitrators and decision makers have to be responsible for what goes into an award. And I think the challenge is trying to manage situations where AI could take a leading role and actually kind of, instead of executing the will of the decision maker, it ends up guiding the decision maker in a way that would make us uncomfortable, I think. And so there's a real tension there. And I don't think I have a good answer for it right now, but I think we all can agree that having an AI drafting awards is a real problem. And that even when it comes down to something that people consider a little bit more rote in terms of summarizing what the parties have said and what the procedural timeline has been, it could be helpful, but we've got to be careful.
José: There's no question. I agree. I'll give you a thought, and that is I spoke at New York Arbitration Week, gave a speech actually on, I won't call it AI, I called it really computer technology because AI is such a laden word right now with lots of baggage. But proposed essentially that computer technology can help us to overcome some of the flaws in our thinking. You know, I've spoken a lot about cognitive biases and how basically given examples of how arbitrators and their thinking are subject to anchoring and hindsight bias and the story model and so on. And I posited that computer technology can help us to overcome some of those flaws in our thinking and actually gave some cognitive tests, if you would. I mean, people can't see it, but I'm doing air quotes to ChatGPT and Bard and showed how they did not fall victim to these cognitive tests that when given to, I'll call it humans, you know, they were prone on, generally speaking, et cetera, to flaws in the reasoning. So I think it is just a hugely important area that I think really could help improve the output of the arbitral process. But again, the subject of a whole nother podcast in and of itself. Wow. But I'd like to switch really to another aspect of our conversation that to me was also very interesting. And then that really comes from your background. As I mentioned at the outset, you went to Yale for college and law school, you have a degree from Oxford and you're admitted to practice in the US and UK and taught in France and so on. How did you wind up with such a varied trajectory?
Jason: Well, I think there are a lot of reasons, but I think one in particular was, studying in law school with Michael Reisman, who was one of my mentors during law school. I took every class that was available from him at the time. And I think that the unique. Aspect to both his career trajectory and his kind of philosophy of international law was that this sort of distinction between public and private international law categories can be sometimes a bit of an artificial distinction, and that really the systems and structures of international law across all of their various forms and iterations have this sort of collective contribution to world public order. And it created the possibility, at least in my mind, that it would be possible to have an international law career that touched on different areas of practice. And when I started, I did a clerkship in New York and then moved to London to work in the WilmerHale International Arbitration Practice Group. That was a thrilling place to start and get very in-depth exposure to different aspects of international arbitration in different industries. But I also knew that it would be at least possible to aspire to the types of international legal practice that would involve more public organizations and that could address the sorts of cases that are handled in the Hague. And that's ultimately, as I was becoming a more experienced attorney, I did begin to have this desire to work on these types of cases to potentially have the opportunity to work alongside people seeking accountability for some of the worst atrocities that have been perpetrated in the latter half of the 20th century. And that became a focus of mine. And I think it was. Facilitated in some ways by the significant overlap in the trial procedures of international criminal tribunals as compared to international arbitration tribunals. I mean, obviously the subject matter is very different, but the procedures themselves have a lot of overlap. I mean, at the International Criminal Tribunal for the former Yugoslavia, the ICTY, which is where I ended up working, a lot of the case in chief for the prosecution, as well as the defense, goes in in the form of witness statements and annexed evidence. Much in the way that you would see in a typical international arbitration. And I think that's something that is inherited from certain civil law jurisdictions, as well as some common law jurisdictions as well. And then the sort of the predominant part of a witness's appearance in court ends up being cross-examination, which then comes to a certain extent more from the common law system. And those, I think those overlaps made it a smoother than one would expect transition to go from the practice of international arbitration to the practice of international criminal and international humanitarian law. And so that was kind of the sort of driving force for me. And I think I really relished the opportunity to have a real kind of induction into the trial attorney experience of spending a lot of time in court, doing a lot of witness work in The Hague. I think that was something that happened less frequently, especially as a junior attorney in a private law firm. And so having that opportunity was really invaluable, especially with challenging witnesses, often with simultaneous interpretation. That was a huge experience for me and for my career and just for learning to be a lawyer who could operate in court in those types of cases.
José: That is such a great point. I do think as the practice of law has evolved, obviously I started practicing a long time ago. As the practice evolved, I found that it was more and more difficult for the non-senior lawyers, called the young lawyers, if you would, to get the type of hands-on experience on cross-examination, on opening, on closing, and so on, that I, and I'll call it my generation, had been able to, I'm talking now American lawyers, my generation had been able to do at the outset. As I mentioned, I started out as a regular American courtroom litigator and was able to do live fire early on. That really experienced for me very, very well once I transitioned into the world of international arbitration. But to make very clear, I'm not contradicting what I had said earlier, which was, look, You can't simply, I believe that if you're purely a litigator that you can't just parachute into international arbitration and say, okay, I'm here, I can do it. But my point is that there are skills that you develop as a regular, I'll call it courtroom litigator that I think apply very well into an international arbitration context. I think that was a very smart career move on your part to try to get that frontline hands-on experience.
Jason: Yeah, and I get it. I mean, if clients, you know, if clients are hiring José Astigarraga to represent them in an international arbitration, it might be a harder sell to say, let's let this 50-year associate, you know, cross-examine this witness in a hearing. They might say, well, you know, let's have the guy who's done this, you know, 20 or 50 or 100 times. And so that's something where I think it's sometimes challenging, even when the senior partner on a case really wants to give those opportunities to a junior person. Sometimes it's just, it's hard to make it happen. And so I think that it's nice to try to get those opportunities when you can, because they're sometimes hard to come by.
José: No question. It was interesting because I mentioned to you, I found them all at my own firm. We made it an effort to try to make sure that people got experience along the way. But there were times where I would say to the lawyers, look, you're good enough to win the case, but you're not good enough to lose it. And what I meant by that was very simply, if this case goes wrong, I've got to be able to say to the client, okay, I did it. In other words, it went wrong for these reasons as opposed to, well, why on earth did you trust this to somebody, blah, blah, blah, and so on. So it's definitely, it's a balance. But can you contrast a little bit of your experience in terms of being before a purely common law tribunal setting and now having to practice before a, I'll call it a mixed or even predominantly civil law tribunal?
Jason: I think it's a really interesting question. Oftentimes, when I hear people discussing this or read about it, I think the first thing I see or hear relates to the difference between binding precedent versus not binding precedent and that sort of thing. And I'm not actually sure that that's really where the action is in terms of the distinction. I mean, you know, it is true that common law jurists may have a somewhat different relationship to the, you know, importance or binding nature of a prior decision that's on point. But even if it's not technically binding in a civil law setting, I do think that there I've never seen civil law jurists, you know, ignore persuasive on point authority from prior cases. They're just as interested as everyone in having a consistent application of law and vice versa. I mean, in the common law setting, if there are equitable circumstances that are really pushing in one direction. People will identify distinctions that will enable them to come up with a decision that is ultimately just, even if it might have certain tensions. You know, with prior cases. So I'm not so sure that that is a huge difference. I do think that the practice, the courtroom procedures end up being some of the most important differences in terms of what the expectations are, what a trial looks like. I think that-
José: Can you give me an example?
Jason: I think in common law or adversarial systems, there's more of a kind of background assumption that that you're going to be hearing from the witnesses, you know, telling their story, you know, a more robust direct examination that the trial that the trial or the hearing is really where the the story of the case is told and you hear it primarily from the from the witnesses mouths as they're on the stand. And in the civil law system, that's really not the way it's done. A lot of this evidence is put in on paper. And then the questioning of the witnesses in many countries is led by the decision maker, led by the judge. And so you have a much more active panel of jurists. And I certainly found that was true in The Hague. We had in one of my trials, the prosecution of Rakom Latic, we had a predominantly civil law judging panel for that case. And it was a real change for me in terms of having to adapt to a more interventionist panel with questions, especially when I was in the habit of structuring cross-examinations very rigorously with many kind of narrow questions, closing off escape escape routes for different for different points, and then and then sort of culminating in some final questions and moving on. And they were, you know, sometimes kind of elaborate and you would be going through these questions and you'd see the light bulb go off with one of the judges and then it was over. I mean, they would jump in with a question that would take it off the rails or indicate where things were going or provide an opportunity to explain something in a way that maybe wasn't what you were going for. And so it was getting used to and adapting to that kind of situation and thinking about how can I get the most useful answers out early before we start getting the involvement of the panel was kind of important lesson to learn. And I think that I haven't seen as many international arbitration tribunals really get in like that at that extreme level, but it does happen. And I think that the moment you know that that is beginning to happen, it does, I think, help to be able to adjust on the fly and restructure in a way so that you're not just going through a long process ultimately to have everything just kind of fizzle.
José: Well, Jason, again, what you've said just resonates with me. I have not done international criminal tribunal cases, but I, of course, have done international arbitration cases in very much mixed tribunals and purely civil tribunals and so on. And I have seen it where you're in the process of cross-examination and as you put it, you're sort of closing the escape badges for a witness that is not telling the truth and where the arbitrator basically says, okay, I get it. And then it starts in effect sort of intervening and it can allow a skillful witness to sort of undo and get away with, if you would, from the point that was trying to be made in cross-examination. So I've seen that, definitely. Just wondering what other thoughts, I've kept you so long, I didn't mean to do this, but it's been so interesting to speak with you. Do you have any other thoughts that you would want to share with our listeners in terms of of the, you know, the great tasks that you've got before you? And then as well, even in terms of some of the things that we've talked about on your career path.
Jason: Well, I mean, I think that that's one thing that we're also looking at within the USCIB in the arbitration field is making sure that we are getting the message out as broadly and widely as we can about this practice area, which is an area that I think is, you know, one of the most rewarding ways to spend a career in the law in terms of working with colleagues who often have really varied experiences from different parts of the world, different legal traditions, you know, the kind of open-mindedness and collegiality that you see on this international level, I think is just very satisfying professionally and personally. And I think that it's because of the intellectual challenges that are involved in some of the complicated issues that come up in our area. It also brings a lot of intellectually curious people, which I really enjoy. So I want to make sure that we are letting people know that this is out there. I think that even at the law school level, it's not a course, international commercial arbitration. It's not a course that you find in every single law school. And there are a lot of people who will graduate without even knowing that this exists and they'll find out about it later. And I think that's something else I would like to change. I think it's going to help with increasing the diversity of our profession within the United States, creating a broader pipeline of talent that will ultimately become the future leaders of practice groups and the future arbitrators of these cases. And so that's another goal I have is looking for ways to encourage people to practice in this area and learn about it and think about it and write about it. I think that it's been very rewarding for me and I would like to see more people have the chance to do it.
José: Well, that's fantastic, Jason. You know, there are so many, I think, more opportunities now as well. You know, sort of when I started out, the reality is that it was, you know, a fairly, you know, small group. So everything is relative, obviously, because we're talking about the world. But the point was, it wasn't, there weren't the opportunities for the under 40 arbitrators. Now there's even the very young arbitrators, you know, and things like this. And so there is opportunities for people to get involved. And, you know, it's be fantastic that you're going to do this work and sort of letting them know that, you know, the world is a roister in terms of the international arbitration world. So absolutely. Yeah. Wonderful. Well, just thank you so much for being generous with your time. I really enjoyed this conversation. Like I said, there's so much that we could talk about. And once you catch your breath and get settled, you know, I'd love to renew the conversation with you.
Jason: Absolutely. I look forward to it, José. Thanks for having me.
José: Well, thank you so much. And to our listeners, thank you for being with us. We look forward to seeing you at the next installment of Arbitral Insights.
Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.
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Andrew Tetley welcomes Prof. Dr. Eckart Brödermann, Managing Partner of Brödermann Jahn (Hamburg), to discuss the UNIDROIT Principles. The conversation delves into Eckart’s long-standing connection with these Principles, his authoritative commentary on them, and his practical experience applying them in business and arbitration. The discussion also touches on the benefits of the Principles and offers a glimpse into Eckart’s life beyond the law.
Global chair of Reed Smith’s international arbitration practice, Peter Rosher, welcomes Latin Lawyer’s 2024 Lifetime Achievement Award winner (and former chair of the Reed Smith international arbitration practice) José Astigarraga for a conversation reflecting on José’s arbitral career to date. José shares his advice to young lawyers entering the profession, his motivation for focusing on international disputes, his career milestones and his insights on future trends in the field.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights, and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Peter: Hello, everyone. And welcome to another episode of Arbitral Insights. And this time I say welcome to our viewers as well as to our listeners, because for the first time, we are on the screen. It's a video podcast as well as an audio podcast. As you will have heard. In the introduction I’m Peter Rosher. And since 2021 I’ve had the privilege of chairing Reed Smith's Global international arbitration practice. And in 2021, I stepped in to fill some very big shoes from the former chair. And that is José Astigarraga and José was chair from 2017 to 2021 I'm absolutely thrilled today to welcome José . For an informal chat. José really needs little if any introduction. He has been continuously. Recognized by all of the. Major publications and directories over Many, many years and that's GAR, Chambers, Latin Lawyer and also Latinvex And of course, most recently. José received the prestigious Lifetime Achievement Award from. Latin Lawyer for his contributions to international arbitration. Today I'm just going to have a chat with José. About his journey. Over the. Decades in international arbitration also going to seek his wise counsel for. Young practitioners. Coming into the profession and also. Ask for some of his insights. I'm looking into a crystal ball as to where he sees things going for international arbitration. So without further ado, I firstly a warm welcome José . It's great to see you.
José: Well, Peter, likewise. Thank you so much for those kind words. Much appreciate it. Totally justified. José if we go back and we'll go back now to the last century and the last decades of the last century. When you started one of the first international arbitration practices at a Florida law firm. And then in I think it was around the year 2000. So the beginning of this century you actually started, a boutique firm that was dedicated to international disputes and in particular, of course, international arbitration. I’d just be interested to hear sort of what motivated that. Well Peter, it's a good question. You know, as you indicated to me that you'd like to do this interview, I sort of naturally reflected. And, one of the things I did reflect on, of course, as we talked about, is the journey. And this was certainly a very, very important milestone in my journey. When, as you mentioned, I had been a partner at a large Florida law firm and founded the arbitration practice there and then. You know, it was the year 2000, and I left to start a boutique which was a very different model. You know, there were several things that motivated it but, there were two primary ones. First, it was 1999 and It was a big year, right? And so you reflect on things and I guess when I was a kid, I thought about 1999 and I said, “Oh my God, I'm going to be an old man.” And all of a sudden 1999 was there. And I say, well, you know, maybe not so old. And I felt that there was still a ways to run. But really two primary ones that that drove me was that I could see the wave of international arbitration that was coming. It was already been developing during the beginning, in 1990. And I could see that other firms were already moving into the space. And by that I mean other big firms. And I thought, frankly, many of them would be very similar to one another. And I figured, one way to compete was to be different. Right? But I didn't want to, and therefore I thought I'll call it the boutique firm model. But I didn't want us to become some small law firm doing whatever work came in the door. I wanted us to be able to handle the interesting cases that were going to be. On the road ahead. and to compete against this slew of big firms that was coming our proposition was we were small, but intense and so the tagline that we adopted was the power of focus and our message was very simple we don’t to many things, we’re not full service, we’re not even full dispute But what we do, we do very well. And hence the power of focus. Right? And that, frankly, that message resonated with clients and the marketplace. And, you know, at annual awards, you mentioned GAR and Chambers and so on. And, you know, every annual either or these awards for the best law firm of this, best law firm of that. And, you know, frankly, year after year, the awards were, you know, you'd have five of the mega law firms and Astigarraga Davis, you know. So that's it's we were. Unique. And it was a proposition that, you know, served us well and help position us very, very well. The second reason, because I told you there were two factors. The second reason, Peter was. Honestly the creation of a collaborative culture. When we founded the firm, we adopted some first principles. You know, things like not tracking origination, things like not referring to my client, but our client. Saying we won the case, that I won the case, even though the reason the case was mostly won was because of the lawyer who happened to be speaking. And we banished any talk about my book of business. And, you know, these weren't just platitudes. It may sound Pollyannaish, Peter, but that really created an exceptional environment where we were able to focus all our competitive energies, you know, outwardly, instead of wasting time inwardly, you know, trying to one up one another and so on. And now I realize that's not workable for a big firm. But those first principles really served us very well. And I think that the great majority of persons who worked at Astigarraga Davis. Over the years, appreciated the environment and it worked well for us. So that that's the explanation for how Astigarraga Davis came to be. Let's fast forward 17 years to 2017. When Reed Smith was lucky enough. That you chose Reed Smith as a move at that stage. I'm interested in what motivated you to make that move? We're very glad that you did. And then I'll come back to something that you said about. Sort of the collaborative and practice not necessarily being something that would that you would associate automatically with big law and big firms. So first, what motivated you? Perfect. Sure. Absolutely. Well, I would say for one, as in all important decisions, there was or most important decisions, there wasn't one single factor. But if I would say to you one that was very, very important, it was the opportunity to do more with more. You know, so often, you know, in life you get asked to do more with less. Well, this is an opportunity for us, but in particular me to be able to do more with more. And what I meant was, you know, our boutique was regularly courted by big firms to see if we would be interested in joining them, and they were wonderful top tier firms. But Reed Smith offered something, a couple of things really, that were especially attractive. The first thing was they were interested in investing to develop their international arbitration practice and brand. Now let’s talk, you know, turkey here to say the American expression. I said, put your money where your mouth is. They were willing to invest in the practice. And that's very, very important where you're competing at the levels that, you know, the global firms compete. and second, they asked me to lead the practice, lead the effort. And to me, that was very attractive. I enjoy building stuff. And so I founded two practices at my original firm. I headed one practice at my original firm, built that. I founded a practice, at my original firm, did that, obviously in collaboration with my partners and so on, built Astigarraga Davis and so on. And built a successful boutique and that was fulfilling. And at Reed Smith I come to you. I had the opportunity to do more with more. I had the opportunity then to build something even bigger than Astigarraga Davis, now on a on a global scale, and I say, I I'll get back to that in a second, but so my point is that that opportunity to lead that effort was something that was very attractive. As well, the firm had all of the ingredients necessary to do that. When I looked at it right, they had excellent successful arbitration lawyers. It had excellent clients. It had an excellent platform. What it didn't have was the brand recognition fitting for a firm this size, and I felt like I could help change that.
Peter: Yeah, absolutely. I joined in May of 2017. So I think it was 3 or 4 months after you joined. And I remember we had scheduled to have a call that was, I think, you know, it's about 15 minutes. We were on the phone together for over an hour. I remember that distinctly, just sharing ideas. And we both were becoming familiar with the depth and the breadth of what was being done at Reed Smith. And I think we both shared that sort of amazement that they didn't have the brand that clearly was deserved. And we sort of shared that and also shared the necessity for. Real teamwork across geographies as well. Just coming back to that little bit about I mean, in your view. This isn't a provocative question, but did you succeed in elevating the the firm's arbitration brand?
José: No.
Peter: Okay. I wasn't expecting that. Why do you say that?
José: Let me go back to first principles at Astigarraga Davis Peter. It was a “we” that succeeded. The Reed Smith we succeeded in raising Reed Smith's arbitration brand, it wasn't me. It was because of Reed Smith lawyers. I'm going to embarrass you, such as you, Peter, that we succeeded in taking Reed Smith from unranked in international arbitration space, you got to call it, as they were. They were unranked in international arbitration, you know, globally and taking it from unranked to being one of the Global Arbitration Review's top 30 firms in the world in less than five years. And we did that. Now, to those of you who are listening or watching this podcast or watching it, please understand. Peter did not and does not know what my answers to the questions were or are going to be. I want to make that clear. So this is not some scripted commercial advertisement for Reed Smith that has all been prearranged. I really mean that genuinely. You know, you ask me Peter, I think the reason for your question is is look you're driving it okay. How do what what does it take to build an arbitration brand an arbitration practice to grow at the position of the marketplace? so I think those are interesting questions for the listeners and viewers, as to what it takes. And my answer, about you and lawyers like you goes directly to what it takes to build that successful brand and firm practice. So I yeah. Like I said, I don't mean to embarrass you, but I mean that very, very genuinely. Peter. My contribution, my contribution to the process was in seeing how the pieces that were available could fit together, what pieces were missing, okay, and how to communicate that message to the arbitration community about the caliber of lawyer and the quality of service that we could offer. So I that I, you know. Honestly, I'm very professionally satisfied that I made that contribution and I'm pleased to say that it worked. Like I said, you know, we wound up making it to the GAR 30, thanks to you and some of our other partners and lawyers. Two position for Reed Smith in that short period of time.
Peter: Again, one quality, the knowledge that something is. It is a constant with you. José, is your modesty? Which, I mean, it was your vision, and it was under your. Your leadership and just installing that culture across our geographies as well. So, and yeah, I mean, it's a real testimony to you. And but again, I'm not trying to be a sycophant, anything like that. I'm just saying it as it is, the reality. Okay, let's move this on into slightly different direction perhaps, and talk more about. These are a number of organizations. And also. Projects in the arbitration space. That you have been part of. I'm thinking of things like IBA’s, the conflict guidelines, and also something that you co-chaired, which was the. ICC’s task force on witness memory. In all of the work that you've done and sort of on such projects over the years, is there any 1 or 2 that stand out in particular?
José: Yeah it's interesting question Peter, because it's been a long road and I've worked on a multitude of projects, interesting projects over the years. So I can't say that any one project stands out. But I certainly can say two areas in particular stand out. The first is the issue of ethics and standards of practice. You know, I do think that there's despite the convergence of arbitral practice and customs across the world, we still have a wide range of views and standards in much of that world. Now, if you look at the mega cases, the type of cases that you work on, Peter. Fine. There is a reduced group of lawyers, law firms, clients, arbitrators. That operate within the bounds of what I will call fairly common ground. You know, in terms of how those you know, how it views the standards, the practices, the ethics and so on, how the lawyers comport themselves, conduct themselves and so on. But below that, below the mega cases, I and there are very significant arbitrations. I'm talking about even arbitrations of 100 million and above that, in which I see lawyers and arbitrators not operating on common ground. Things as simple as, you know, document production and What is which should be attendant to document production. And you know, what are the requirements with exhibiting documents and things like that. Or what are you know, appropriate representations to a tribunal. The required accuracy it that you know and things like that. And, and I think that there is still a wide difference and gap in terms of how. Lawyers and arbitrators that are participating in these very substantial cases. My point is, look, this is not, you know, sort of consumer level cases. These are important commercial cases were being handled under two, almost two different sets of rules. and the contests in quotes that are taking place are being played really according to different mindsets of what is the appropriate way to proceed. So I think we have a long way to go on that front. I think the second, you know, we talked about areas, you asked me about projects. I say, you know, what sort of areas, because within those areas I worked on multiple products relating to that. you know, I've spoken a lot about our reasoning process Peter. As you know, on cognitive biases and, you know, things like hindsight bias, confirmation bias, things that I regularly have seen affect the output of our process, which are awards right? And I continue to see the effects of awards on things like hindsight bias. And I don't think that we as a community talking about the global arbitral community or the regional and so on, community are doing as much as other professions are to reduce the effect of such errors. I, you know, point to medicine and they're very focused at trying to reduce these things. You know, I have clients that that use Six Sigma Peter, which is in the manufacturing process. They will not accept more than 3.4 defects per million outputs. And I know we're not going to manage something like that in with something as subjective as judgment, right? But I think we need to do more to reduce the effect. Extraneous factors such as our cognitive blinders and so on are having on our output on our awards. And I don't think that we're you know, we're really focused. We're aware of it. But I don't know that we're doing enough and certainly we're not measuring enough. To reduce those. So those would be the two areas that I think are very interesting are very ripe. And could use more attention from our community.
Peter: Okay, well, that segways quite nicely into another question that I have for you and it relates to. You gave a speech at the Fordham Law School in the autumn of last year. And that related to artificial intelligence and the impact that that will have on an international arbitration. So, I mean, really. Do you think that that is going to improve? the problems that there can be with sort of the arbitral decision making process and things like confirmation, a bias or hindsight bias.
José: Peter again, Interesting question. And it really is two aspects to that answer I did. I gave the, I was privileged to be asked to give the keynote at Fordham Law School to cap New York arbitration Week in November. And, you know, essentially, I spoke on I'll call it computer technology. Artificial intelligence is a very, you know, laden word right now lots of baggage, right. With lots of people being concerned about the damage that our artificial intelligence could do and so on. And this that's understandable. I then. And so when I. Presented my address, I said, look, let’s park the phrase artificial intelligence. Let's talk about how computer technology can help us. And I do think that there are two aspects that I will comment on in response to your question. The first one is you asked me, look, Can it improve our reasoning processes? And really, I fundamentally believe that there is just a set the stage real quick. the research has demonstrated in the past years that. Arbitrators. Judges. And all of us as human being, are subject to certain biases. Including things like anchoring, in which it may not even seem counterintuitive, but because we all know that a mathematical operation is a mathematical operation and should yield the same result each time. Well, it turns out that depending on how, for example, the anchoring where you start a mathematical operation, is it, you know, one times, two times three, you know, all the way up to say eight. You know, the human mind will typically yield at one result. But yet if you start with eight times, seven times, four times, you end that one. The human mind yields a bigger result, right? That's just a very simple example is done by Professor Kahneman, who won the Nobel Prize for his work in this area, to show that the human mind can be affected by the logic of the human mind, can be affected by how it is. You posed the question, for example. And there I posited that computer technology can help us to overcome this type of mental flaw that affects our reasoning, right? And I actually gave some examples, obviously. We're here on a very quick podcast. But you know, in the address I gave examples of where I had actually taken some of the cognitive tests. Very simple cognitive tests used on subjects to demonstrate cognitive biases and gave that same test to ChatGPT and then Bard and so on. And you know, they didn't fall victim to it. Even though the human mind does. And so I posited that. Computer technology. Can help us to improve our reasoning process. And. I and I, and I would add two things with respect to that. I want to acknowledge that the computer technology is not currently ready for that. My message in my speech was a call to the arbitration community, which was, you know, I would count the IBA, The ICC and other arbitral institutions that we should embrace computer technology now and focus on how we can improve our output. Right? Maybe not the Six Sigma, Can't we take advantage of this very powerful tool to help us improve the quality of the output that we are generating? The awards. So you can use computer technology as sort of a check and so on. But I told you I wanted to comment two things. And when you raise the subject of artificial intelligence, because I think and that was my message, Peter, that was the thrust of my speech at Fordham. But the there's a second aspect to this, and I think that to some degree are I'm generalizing, of course, and we're here just having fun. But I would say to some degree, our community is in denial. Right. And I have read a number of threads in discussion. So, you know. Artificial intelligence will never replace human judgment. You know, and so on. And. And I think it is only a matter of time. And AI is very nuanced. So be very precise. I think it's only a matter of time. And I would emphasize a fairly short time before systems are devised whereby users will be willing to entrust certain types of disputes involving substantial amounts of money to resolution by computers. I'm not saying, again, the type of case that you handle Peter, mega cases, bet your company cases and so on, but certainly commercial cases, business to business cases will, I believe there will come a point. Yeah, fairly. Fairly soon. In which, you know, users are going to be willing to do that. I didn't see all cases, and I didn't also can say, you know, artificial intelligence or simply going to trust it here. You tell me what the outcome is. Let me give you an example. One of the interesting things I heard, Peter, while I was co-chairing the ICC Task Force on Witness Memory, was from arbitrators who considered that their default is that documents are the best evidence and that witness evidence should be received only if necessary. You know, there's I'm going to decide this on the documents. And really, the only reason I want to hear from witnesses is if I need to. Otherwise I can decipher the documents now. These are rational, intelligent persons serving as arbitrators who are being appointed by users, knowing that that's the default of the individual. And my point is that there are users who are comfortable appointing persons, arbitrators who default to deciding cases based solely on documents. And I want to make sure my point is clear. I'm not taking issue with anyone saying a particular case should be decided on documents. My point is that there are users in the community who are comfortable with that methodology. Well, if that is the case, then they. Then I think it's a very short leap, a very fairly small leap to think that someone can design a, an algorithm that can draw from the vast trove of arbitral jurisprudence and render arbitral, be prepared to render arbitral justice based solely on the documents. so the I'm not saying only in those cases where that, you know, it's only in cases that where, someone is strictly willing to do documents. My point is that easily that's one simple way in which I can say, look, it's currently being done on the documents in some in some realms, commercial cases. Therefore, what is the difference given what artificial intelligence computer technology is doing right now, to simply say, okay, well, you distill it from the vast trove of arbitral jurisprudence that's out there, and therefore, you know that we could easily have users being willing to entrust the decision to that, because I think the attraction of quicker results and lower cost are going to be hugely attractive. And I think that a certain band of users, you know, including big companies, would be prepared to sacrifice what I'll call perfect or bespoke arbitral justice. Like, you know, the type of cases you handle for more efficient and cheaper arbitral justice that renders an award that I call that’s good enough. So, you know, I want to be a little bit provocative. In raising that because I do think it's real.
Peter: I totally agree. Speaking of which, A client recently, and this is construction industry. So big construction disputes when they come about. That was talking about in these disputes. They accept sampling at times and was equating sampling with why not with artificial intelligence with something. Because there's a cost benefit to that. So now I think you're absolutely right. And I think we're talking about a couple of years, not talking about a decade or two decades. Well coming back to and this will make you blush again. Your lifetime achievement award from Latin Lawyer. I mean, looking back on your career. I mean, is there anything you're particularly proud of?
José: You know, as a lawyer. Thank you. Peter, you're kind to ask this. You know, as a lawyer, I can think of a number of things. Yes. you know, one first and foremost, knowing that I help good clients solve some difficult problems. You know, I it is a very rewarding thing when you've got somebody that is stressed and is concerned and, you know, you were able to help them find a way forward. Building Astigarraga Davis you know to its place in the marketplace. Along with my partners. Yes, that’s something that gave me a deep professional satisfaction and the contributions I made at Reed Smith Peter, helping build the arbitration practice and brand. But if I had to choose, if I had to choose, I would say that making a contribution to. The development of international arbitration in Latin America. And I don't want to overstate. I but the arbitration of Latin America is a phenomenal success. What it is independently of, you know, my ever existing. But my point is that, you know, having a functioning dispute resolution system is critical to economic development. Latin America is developing economically. It needs more economic development and so on. And today, you know, our international arbitration functions very well in the region where that wasn't the case, you know, 30 or 40 years ago. and it Today it's one of the leading regions of the world, some of the biggest cases in the world, some of the most sophisticated cases, top arbitrators, top Latin American lawyers, and so on. I'd like to think that I played a small part, Peter, in that through the knowledge transfer, through the promoting initiatives and activities that I did when I had opportunities to to serve in positions of leadership and so on. So that, you know, is is something that is, you know, brought me some degree of fulfillment or satisfaction of knowing that maybe I made a small contribution to that process.
Peter: I mean, I observed directly over the years. The importance that you give to. The younger generation coming up, but just how much you invested in. Younger talent at Reed Smith. I mean, what advice would you give to young lawyers coming into the profession? There's a pause.
José:Yeah, yeah, that’s a big question right? Okay. You know, you can give advice, I suppose, on many levels. At two levels, you know, you know. So I'll focus on this one on the, you know, essentially, I wouldn't even say as a lawyer, I would just say almost. As life advice, but they're all kind of integrated, aren't they? So what advice would I give to young lawyers entering the profession? You know, I would say four things, Peter. First life is too short to spend it doing something that doesn't fulfill you. You know many if most people on this earth, unfortunately don't have the luxury of choosing how they want to spend their lives. You know, be that for societal reasons, family reasons, health reasons, lack of opportunity. You know, any number. We just have no choice, right? That's the fate in life. But many people who have the luxury of thinking about becoming a lawyer do have choices. And what I would say is, you know, if being a lawyer doesn't fulfill you, you know, find something else that does. Because, you know, life success is going to seem very empty if at the end of the day, you haven't enjoyed what you were doing. The second thing that I would say is, you know, make a plan. Saint-Exupery said, a goal without a plan, it's just a wish, right? So make a plan. Figure out what you want and how to get there. The third thing that I would say, Peter, is think big. And what I mean by that is I think sometimes we don't achieve our full potential because we self limit ourselves. Right? And we limit ourselves in our own mind. And so I would say to you, to someone that would ask for this advice, I say, you know, think big. And fourth, and, you know, maybe most importantly I would say, Peter, is think long term. And what I mean by that is that along the way, you know, you're going to be faced with difficult decisions that bear on your ethics and your values. And sometimes it's difficult to do the right thing. Hard decisions, I find that hard decisions become less hard. When you think about the long term effect that your choice is going to have on you, on your life or on your career or on your loved ones, and so on. So, you know, if I had to encapsulate, you know, things that I wish I guess I had, you know, known at that stage of my career or be reminded of and born, you know, clearly in mind it would be those, you know, those suggestions.
Peter: Okay. Well, I would say i’d have been very grateful for that advice in my 20s and 30s. Over the decades, I mean, you've seen. Arbitration evolve significantly. And so now I'm just going to ask you all to gaze into your crystal ball. And what do you think lies ahead for international arbitration?
José: You bet. It's always a fun exercise, isn't it? Because you know you'll never be proven wrong, right? You'll be gone by the time you're proven wrong. I would say it's first international arbitration has a very robust road ahead, very full stop. But that's really only half the answer, right? I was privileged to practice during the dawn of the golden age of arbitration. And what I mean by that is, you know, when I started, you know, I saw arbitration, I didn't fall into international arbitration. I saw the wave of arbitration coming in the future as globalization was coming and so on. And I decided that I wanted to be that right. And it really was the dawn, right? So globalization takes off. Arbitration took off like a rocket, especially in regions like Latin America. There were lots of things that were being cut out of whole cloth. There were vacuums that needed to be filled with soft law and terrific projects going on. Like, you know, the IBA conflicts guidelines, the evidence rules and so on. Law reform was happening. Lawyers were hungry for knowledge in these regions and so on. And that still goes on. There are still vacuums. There are still, you know, law reform and so on, but it's in a much more mature and orderly way, right? So, you know, the opportunities are not, there's not as much, I'll call it low hanging fruit now, as there was. So that makes it tougher for young lawyers, you know, to compete and say for any lawyers to compete or set up, but particularly young lawyers who are interested in getting into this area. in fact, I was just reading. Gary Born's introduction to a book called 40 under 40. And in which he wrote, I actually I was looking at it here and so Gary Born wrote, gaining recognition in today's international market is difficult. Arbitration market is difficult. If there was ever a world where a cozy club of practitioners dominated the field, that has been transformed into an intensely competitive worldwide market, with excellent lawyers coming from every corner of the globe? And that's the reality of the current marketplace.
Peter: Absolutely.
José: So it makes it much tougher. And that really is exactly my point. The competition is very different now. So if you're a young lawyer or any lawyer, you know, you got to take that into account. So the challenge is how do you compete. As you know, the transfer, this transfer of knowledge, this development of expertise, you know, more and more lawyers become more and more sophisticated in terms of this area How do you compete with that? and you know, I can pin it down. I'll give you a specific example in terms of Latin America. In Latin America, you now have excellent law firms handling international arbitrations, very substantial cases that 20 years ago would have been handled by the international non Latin American law firms. That's natural. That process is going to happen in Latin America. It's going to happen in other regions. It might be a little bit behind Latin America in terms of their development of the arbitral culture. you know, language at one time, international law, many international arbitrations were being carried out in English. But as lawyers acquire the competence and the skills, and, and users gain the leverage to negotiate clauses, you're going to have more and more arbitrations in local language, in local centers, important cases. And that certainly is the case in Latin America now. Right? The mega transactions you do, I think is still going to be in English. But I see a Pac-Man, probably dating myself, you know, Pacman was just little video game, right? That would wind up eating its way and I see a Pac-Man of the local language and local centers eating their way up the food chain in the size and sophistication of cases. So to me, the idea of focus and specialization, Yeah. sort of the founding, idea of Astigarraga Davis, is all the more important, whether it's a boutique or whether you're talking about an individual lawyer within the context of one of the large firms. I think that specialization and focus is more important than ever. The big companies certainly look to experience and expertise. And I think the level, that level of analysis is going to work its way down to the lower dollar thresholds, in other words, beyond the mega cases and so on. So that even in non mega cases, clients are going to be scrutinizing the expertise and experience of the lawyers with the particular case. So my point just to conclude, Peter, is that I think any lawyer in this area, particularly the young lawyers, we've got to figure out how they're going to compete in a much more mature and crowded arbitration marketplace. But, you know, simply sort of, okay, I'm going to do arbitration work. I don't think is a winning recipe long term.
Peter: Unfortunately, we are going to have to come to a to an end. And as you know, José we’re trying to keep you at Reed Smith for as long as possible. So this next question hurts me. But what's next for you José?
José: Well thank you Peter. As you know, I. My heart is torn. You know how much I've enjoyed working with you and and our other colleagues at Reed Smith. And this. So. But. You know it. I think it's just gives me an opportunity for another reinvention, as I call it. And. over the years, Peter, my years as an arbitration advocate. I did serve as an arbitrator. I chaired tribunals. Served as sole arbitrator and as wing and so on. I'm eager to get back to that side of the table. And the reason I say get back to that side of the table is because around I had done all that, you know, up to about 2011. Around 2011, having served as arbitrator, I decided that I was enjoying my work as counsel so much that I started to decline arbitral appointments and accepted just a few in the ensuing years, you know, as I put it at that time. And I was actually asked this. When I was on the stage and on a panel. I wanted to be Messi. Or to use the UK analogy, I wanted to be Beckham, right? So I, you know, give me the ball. I don't want to be the, you know, the person blowing the whistle and throwing the little flag down. You know, I wanted to have the adrenaline of the ball and it was it was marvelous. I mean, I just so enjoyed my work as advocate. And as I put it, the adrenaline was calling me. But, you know, Covid comes along. I feel that I've accomplished, what, you know, if my point about Covid is, you know, it was an opportunity reflect on life and so on. And, you know, I felt that I had accomplished what I wanted to as an advocate, and helping my clients and, you know, had enjoyed my work as arbitrator. And so I just decided that, you know, I'd be ready to make a contribution to the arbitral system. You know, now, you know, get back to whistleblowing. and but always having fresh in my mind, what, you know, the burden and the, how tough it is to be a, you know, an advocate. You know, so I'm looking I will be looking as arbitrator, you know, never losing sight of how tough that others that that role is. The other thing and I'll conclude with this, Peter, the other thing that, you know, has intrigued me and that I loved in the course of my work as advocate, was negotiation. Right? And, always as well, the kept in mind that the object of what we were doing was not to litigate or arbitrate, but it was to find solutions for acceptable solutions for our clients. and so I've always had a great interest in mediation, and I will confess to you that I did not succeed in finding, you know, the the mediators that I felt were what we needed in the international cases, that I was handling, which, of course, were in great measure, you know, focused in a cross-cultural, you know, Latin American Spanish, you know, and so on, context. And so I think that with my background, in my bilingualism, my biculturalism and so on, I hope that I can make a contribution, you know, on that side as well. Be interesting to see how that unfolds.
Peter: Okay. Well, okay. Don't just bend it like Beckham. It'll be, bend it like Astigarraga right? So I think on that note, I'll just say. And it's been terrific chatting with you José Thank you. From me and from all of us at Reed Smith and I think that I'd like to thank everybody for joining us for this video podcast today. So thank you very much. Bye bye.
José: Thank you Peter. Bye, everyone.
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New York international arbitration partner J.P. Duffy discusses the Singapore International Arbitration Centre’s (SIAC) current accomplishments and future plans for the Americas with SIAC’s registrar, Kevin Nash, and SIAC’s director and head of the Americas, Adriana Uson.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights, and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the Singapore International Arbitration Center's America Initiative with Kevin Nash, who is SIAC's registrar, and Adriana Uson, who is the SIAC's director and head for the Americas. Let me begin by introducing myself. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration seated around the the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England and Wales, and the DIFC courts in Dubai, where I previously practiced. I routinely represent clients in arbitrations involving India, the GCC, and East Asia, and I also had the good fortune to be listed on the SIAC arbitrator roster. As I mentioned, with me today is, first, Kevin Nash. Kevin is a Canadian lawyer and the SIAC's Registrar. As Registrar, Kevin leads the 25-member SIAC Secretariat in the provision of case management services. Over the course of the past decade, Kevin has overseen the administration of thousands of international cases under all versions of the SIAC and UNCITRAL rules. Under the Singapore International Arbitration Act 1994, Kevin is also gazetted as an appointing authority, serves as the statutory taxation authority, and is empowered to authenticate and certify awards and arbitration agreements. And last but not least is Adriana Uson. Adriana Uson is the director and head of the Americas for the SIAC, where she leads and oversees SIAC's activities in North and Latin America. In 2020, Adriana established the SIAC's first office outside of Asia in New York. She has more than a decade of experience in dispute resolution and and has served as counsel on international arbitrations, as arbitrator, and as the institutional representative. Adriana first joined SIAC as counsel, during which time she administered hundreds of cases across a range of seats and governing laws. She was also involved in the drafting of the SIAC Rules 2016 draft, SIAC Investment Arbitration Rules 2017, and the SIAC Practice Note on Third-Party Funding. Prior to rejoining the SIAC, Adriana was a disputes lawyer at a global law firm where she advised and represented clients in international arbitrations conducted under the auspices of the SIAC, the ICC, ICSID, and the HKIAC. So as you can tell, we have a wealth of knowledge with us today, and we're really, really fortunate to have both Kevin and Adriana with us today. So with that, let's jump right in and hear from our guests. So let me just set the stage a bit by giving some of the SIAC background, and then we'll have Kevin and Adriana chime in on that a bit. So the SIAC is a not-for-profit arbitral administrator that was established in 1994 in Singapore with the objective of providing a neutral, efficient, and reliable dispute resolution institution in Asia. Kevin, can you give us a bit of background on what's gone on with the SIAC over the last 33 years, I guess.
Kevin: Sure. Thanks, J.P. It's great to be here. Thank you to you and to Reed Smith. I'm actually a listener to this podcast, so it's really good to be here. Giving a bit of background, 33 years of operation, SIAC started as functionally a regional center, and you can really see a very compelling growth trajectory. The real proper administration of SIAC's cases started in 2007. You can then see sets of rules in 2010, 2013, 2016. And now we're in the draft public consultation for the seventh edition of the SIAC rules. Along the way, we went in the Queen Mary University of London White and Case Survey is the second most preferred arbitral institution in the world and the most preferred in Asia. And that's really what has helped bring SIAC to global prominence, that we have this expertise in Asia, but we also have parties from all around the world.
J.P.: That's great. And it has been meteoric growth. It's been really impressive to watch. The SIAC didn't exist, as you say, when I first started practicing, and now it's almost default in Asia, if not the default for most parties. And let's talk about that growth outside of Asia a bit. So while the SIAC began in Singapore and has had a lot of acceptance in Asian markets, it is not simply an Asian administrator, as you say. It's really accepted around the globe. What's really been the Singapore secret to that, Kevin?
Kevin: I suppose that's the million-dollar question, or when you look at some of SIAC's cases, is the $7 billion or $10 billion question, is what does Singapore and SIAC have been able to do to put itself at the forefront of international arbitration? When I look at the Singapore arbitration ecosystem, I see language from decisions like the rule of law is applied without fear or favor, and there is an unequivocal judicial philosophy of the facilitation and promotion of arbitration. So it's really the entire ecosystem in Singapore that has helped build up SIAC. One of the most important moments, and Adriana and I were quite involved in this, was in the SIAC rules 2016. Previously, it used to be a default Singapore seat of arbitration. So unless the parties otherwise agreed, if it was left silent, then it would default to a Singapore seat. But because of the popularity in the Americas, the then President Gary Bourne knew that for us to really grow as a global institution, that had to be left to the parties or to the tribunal to decide. So we've got the benefit of the Singapore ecosystem. So you have a very pro-arbitration bench. You have all of the hardware and software, modern legislation based on the UNCITRAL model law. And to a certain degree, it's based on where we are in the world. Singapore, much like New York, is an international center for finance. Singapore has that reputation of effectively being Switzerland in Southeast Asia. And maybe you just can almost encapsulate it by putting out a question that if you were a significant U.S. Entity, would you be comfortable being a moving claimant against a very prominent Singapore respondent? And I think that the answer is overwhelmingly yes. Parties know that they're going to get a fair adjudication of their dispute when they come to Singapore, and certainly when they file a case at SIAC. When I look at that 25 member SIAC secretariat, I am quite moved by the fact that we only have one Singaporean lawyer. So the rest of the Singapore SIAC secretariat are all lawyers qualified in 13 jurisdictions around the world. So I think that gives parties the confidence.
J.P.: Now, Kevin, where are some of those lawyers qualified in the secretariat?
Kevin: You know, I would have to run through the jurisdictions, India, Indonesia, United States, UK, Vietnam, Ecuador, Georgia. I feel like I'm missing a few, Canada, Malaysia. So anywhere in the world where we have our top jurisdictions and particularly where we have those applicable laws at play, we really need to have a lawyer in the secretariat qualified in those jurisdictions. I can think of five years ago in Vietnam, a very fast-growing jurisdiction, because there's a lot of procedural nuances in that jurisdiction, surely we need to have a Vietnamese qualified lawyer. China, we have a fair amount of Chinese language arbitration, so we need to have Chinese qualified counsel. And certainly, we have so many cases involving Indian parties, so we have three Indian qualified lawyers in the secretariat as well.
J.P.: Well, that certainly gives a good overview of the breadth that the SIAC covers. And I think just to reinforce that a bit, let's talk about some of the offices that the SIAC has outside of Singapore before we get to the one in New York. So, am I correct that in 2013, SIAC opened up its first overseas office in Mumbai and then Seoul? Is that right? Seoul, Korea?
Kevin: That's right.
J.P.: And then in 2016, SIAC opened up in Shanghai, correct?
Kevin: Yep.
J.P.: And then in 2017, SIAC opened up a second office in Gujarat in India, right?
Kevin: Also correct, yeah.
J.P.: Now, what was the impetus for opening all those offices?
Kevin: Really, it's to have a presence on the ground. So one thing that we do very well at SIAC is have a lot of analytics looking at economic indicators. We're looking at both sides of the contract. So you're seeing where, for instance, Indian parties, where those inflows and outflows of economic activity is happening. And I think that it matters to users to have a presence on the ground. I can see with the incredible amount of interest that we have in the Americas with Adriana on the ground here. So whether it's being able to call and say that you're filing a notice, I'm starting to think that notwithstanding the fact that I'm the Registrar, that more American users are actually liaising with Adriana. In fact, we had a purely European dispute where they were calling Adriana to say, hey, we filed a notice. So I think that it's made a difference to have that on the ground presence. And we're looking at perhaps a few other offices that are going to be opened up in the reasonably near future. I think what's important for the Americas and one thing that I've talked about publicly quite a bit is potentially that move to setting up a case management office in New York.
J.P.: Interesting. Well, let's talk about that New York office then. So now, Adriana, you opened up the New York, the SIAC New York office in December of 2020, correct?
Adriana: Yeah, that's correct, J.P.
J.P.: That's a challenging timing. How did you find that process?
Adriana: Oh, that was really a very challenging time. I think that was the height of the pandemic, if I wasn't mistaken, back in 2020. And so what we did was really to leverage off technology, J.P. I think that's even the first time where we met was by Zoom. So what we've done is that we've used Zoom, we've used webinar to engage with our users. I remember that time I probably had a Zoom meeting every single day for over a year or even two years. And really, the challenge was creating that rapport and that relationship to deepen those relationships during that time.
J.P.: Yeah, that was certainly a challenging time. And I do recall meeting for the first time by Zoom. Now, Adriana, does the New York office, I think Kevin just touched on this, but does Does the New York office administer cases as well?
Adriana: Not at the moment, J.P., but we're looking into the possibility of administering cases from our New York office to provide real-time access for our users in America. So that's something to watch out for.
J.P.: Good. Well, we'll keep a heads up for that one. Now, what then was the impetus for opening the New York office? What was its purpose when you decided to open it in December of 2020?
Adriana: I think really, J.P., it's because of the growing number of American parties that we have been seeing in our docket. So every single year for the last 13 years, American parties actually ranked amongst our top five users. And there are certain years where you'll see that American parties would even rank number one amongst our foreign users ahead of China and India, which is saying a lot. And that is without us even having any significant engagements in the US. So it was us ripe for us to open an office during that time. It just so happened that it happened right smack at the height of the pandemic. But apart from that, our relationships with the Americans or the US is quite strong. As you know, our immediate past president, Gary Bourne, is an American. Our current president, Lucy Reed, is also a New Yorker. The number three or sometimes fourth most appointed arbitrator by nationality with SIAC are Americans as well. We have American counsel qualified at the secretariat, and we've been really engaging with a lot of U.S. law firms in SIAC. So I think with all of these, it just made sense for us to open an office in New York.
J.P.: Yeah, I think it tends to give a lot of comfort to U.S. parties when they know they have a local contact that they can reach out to. And certainly that helps with with, you know, explaining to a US party, like, yeah, this is not this might be an international undertaking. But there's an office right here in New York. Here's Adriana, here's someone we can reach out to. Now with that, Adriana, what is your day to day look like in the New York office, if you don't mind sharing that with the audience?
Adriana: Oh, I mean, I wouldn't even know myself out my day would would go but typically it would be speaking with our stakeholders. So be it, you know, at a law firm or roundtable session with some corporates or lecturing in some universities. Mostly I'm traveling. So SIAC, New York office really covers from Canada all the way to Chile, including Caribbean, Central America. So then you'll find me in different parts of America. And I think that that's how it looks like at the moment.
J.P.: Yeah, I would imagine it's probably a pretty exciting and pretty action-packed day. Okay. Well, let me just transition a bit so that people in the audience can get a bit of a sense because we were talking about case administration and, you know, for instance, Kevin mentioned, you know, a purely European case in which people were reaching out to you. How many cases did SIAC administer in 2023?
Kevin: Yeah thanks, J.P. I should also say, reaching back to the past question that much of Adriana's day involves me reaching out to her, asking about US arbitrators, a filing that's coming in. But moving to the question, how many cases SIAC administered? So we had 663 cases in 2023. Our previous high had been more than a thousand cases. And this is really significant when you you think that we were starting from the place of two cases filed in 1991 when we first opened our doors. Unsurprisingly, both of those would have been ad hoc conversion cases. And you have some of these cases that might just be a few thousand dollars, two cases, some of the big major projects and giga projects in the mini billions. From a case management standpoint, what is critical for us, the independent and neutral SIAC secretariat, is you treat every case the same. Every case gets the same amount of care and attention. And that's what we've really tried to focus on when we've moved from a regional institution to a global institution. The idea of this accessibility, where we're still treating every case like it is the most important case on the docket. Counsel can reach out to us, certainly not ex parte, but can certainly reach out to us on matters of procedure, the same with arbitrators. And that's been really important to our growth. At any one time, we have more than a thousand active cases. And now in most years, we're getting more than 500 cases a year, which from an international caseload standpoint, really puts us at the top of the chart for arbitral institutions.
J.P.: Yeah, that's quite an impressive growth and impressive numbers. Now, are there particular industries that many of those cases come from, or are there particular industries that you see more cases come from? I'd just be interested to know.
Kevin: J.P., it really runs the gamut and our only limitation really is arbitrability. So you could have cases arising out of contracts, treaties, investment contracts, and it's a lot of mirroring with these economic corridors. So there's certainly a lot of international trade. I can remember during the pandemic, it felt like I was becoming an expert in the sale and purchase of masks. We had lots of those cases. We get some of the big construction and engineering cases, corporate, JV, maritime and shipping. Singapore has the second largest container port in the world. So we really want to be able to administer any kind of case with any type of law applying and increasingly in different languages of the arbitration.
J.P.: Well, that's interesting. It's unsurprising, I guess, that some of the caseload would follow economic trends. And it's also unsurprising that some of the cases would just follow what goes on in Singapore generally. Now, I think you mentioned earlier some of the top users for SIAC are China, India, the US. What countries were the top five users in 2023?
Kevin: In 2023, we had lots of cases from mainland China, Hong Kong, Americas, India. What I found very compelling in those 2023 statistics is that our fifth most frequent user was Emirati parties. And often we had Emirati parties on both sides of the contract. And it's really a hallmark of the flexibility of international arbitration. So you may have UAE parties on both sides. They may choose an onshore or offshore seat in the UAE. They may choose a Singapore seat. And then the rest of the top 10 and those users that are starting to really matter is really a balance between common law jurisdictions and civil law jurisdictions. And if you follow SIAC and if you chart SIAC, what we really try to do is give effect to both the common law tradition and the civil law tradition. What we have been seeing increasingly with US parties and in large part to the work of Adriana is some of those real chunky disputes are coming from the Americas. When you're looking at the highest summon dispute, the mean summon dispute, the median summon dispute, we are getting some of those very significant cases from the Americas.
J.P.: Well, that's really interesting. And before we move on to the Americas, I just want to hit on a couple of points. And I guess my first question is, are you seeing trends in where cases are coming from in countries? Like, for instance, you just mentioned the top five user being Emirati. Would that have been the case a few years ago as well, or is that a newer development?
Kevin: We've seen some signs of interest from Emirati parties and in MENA generally, but it is because of the amount of work. And it's almost like you can look at some of the fastest growing economies and some of those most dynamic economies, and then you will start to see SIAC's caseload increase. And as I mentioned earlier, what's important for us is to be able to market both sides of the contract and have the users have confidence on both sides of the contract. So a classic case involving the Americas might be a party from the U.S. And an Indian party, a party from the U.S. And an ASEAN party, and a party from the U.S. and a Chinese party. What place are both of those parties going to choose increasingly at Singapore and SIAC?
J.P.: Yeah, that's great to hear and unsurprising, I guess. Now, are those transactions ones that would be, for instance, just global transactions, or are they ones that might have some sort of geographic center in Asia?
Kevin: One of my favorite disputes that we've had recently was a functionally domestic US dispute where there were parallel court proceedings in the Pacific Northwest. I was looking for an Asian nexus. I have still yet to find it. So most of these, I mean, I mean, obviously, arbitration is the preferred method to resolve cross-border disputes, but in the UAE, in the Americas, a lot of times in India, these are domestic disputes where they're choosing Singapore and SIAC. And J.P., you might remember that it took some time for the Indian Supreme Court to give clarification on whether two Indian parties could choose a foreign seat. That clarification has now arrived. But even before that, because of the power of Singapore as a seat and the trust and confidence into the SIAC, Indian parties were still using SIAC for functionally domestic disputes.
J.P.: Yeah, it's interesting because that has been the case for many, many years before the Indian Supreme Court clarified that, as you say, almost akin to the way that some Brazilian parties use other institutions as well as the SIAC for purely Brazilian domestic disputes. It's a vote of confidence in arbitration generally, I think, as well as the institution. Well, let's shift gears a bit and talk some more in a little more detail about the Americas. And Adriana, what, obviously, by opening an office here in New York, SIAC is targeting, you know, the US and New York in particular. But what other markets is SIAC targeting with its New York office?
Adriana: J.P., there's really a lot of ground to cover in terms of targets. And as a starting point, SIAC's choice to open our America's office in New York was important. And it was very consequential and sent a message about our future direction. As all of us who live in the city would be aware, New York is the epicenter of so many things. So international arbitration and legal services, banking and finance, international trade, retailing, media and advertising, and so many others. But our users come from all over the US and across various sectors. Let's see if I can recall all of them. So over the past five years, we have seen parties from California, Connecticut, Delaware. Florida, Georgia, Illinois, Massachusetts, Maryland, New Hampshire, I think New Jersey, Nevada, North Carolina, Ohio. We've seen some from Texas, Virginia, and Washington, to name a few. We have been busy see deepening these relationships and engaging with the local arbitration communities, establishing partnerships such as with the Silicon Valley Arbitration and Mediation Center. But our New York office really covers the whole Americas from, like I said, from Canada to Chile. Latin America is especially exciting for us because of its increasing trade with Asia. Right now, we have cases coming from Belize, Brazil, Chile, Colombia, Ecuador. We also have cases from Mexico, Panama, and Uruguay, and we are eager to further expand our reach in the Americas. In fact, one of the first few things we did, J.P., when we opened the Americas office was to enter into partnerships with local centers such as the Lima Chamber of Commerce, the Santiago Arbitration and Mediation Center, and the Quito Chamber of Commerce, to name a few. And we have been very active in the region since.
J.P.: That's really impressive. That's really impressive. And, you know, people, you know, think of the Americas and they, they sometimes think of a few large, a few large jurisdictions, but you're mentioning really a number of countries in the Americas that are seeing capital flows between, between their countries in Asia. Now, what are some of the, what are some of the largest, Latin American markets that you're seeing activity in at the moment, other than the ones, you know, I think you just mentioned a few, but are there others that you're seeing in particular as ones that are producing a lot of disputes?
Adriana: I would say there has been an uptick in our Mexican and Brazilian caseloads. Kevin, you've seen a lot of these cases coming in. I think there are queries coming in from Ecuador as well. That's an area that we're quite interested. In fact, we did hire an Ecuadorian counsel in our secretariat because of that.
J.P.: Impressive. How about jurisdictions like Argentina and Peru?
Adriana: Yeah, actually, Argentina and Peru, one of our main targets, especially Peru, I think in Peru, they've now mandated arbitration as part of their law for public contracts. There's a lot of arbitration going on in Peru. And just before actually this podcast, I was on a webinar for the Peruvian Institute. So we are very active in Peru as well.
J.P.: That's great. I would assume Colombia is an important market as well. well?
Adriana: Yes, absolutely. Colombia, Panama, because of the Asian trade, that's also a very important market for us.
J.P.: Interesting. And are you seeing disputes come out of issues involving the canal in Panama?
Kevin: We actually have J.P. And I should say, because Adriana has been in this role for, is it three years?
Adriana: Yeah.
Kevin: In or around. There is that sort of timeline when SIAC clauses go into contracts and when you get the eventual dispute. And we have very strong indicators for many of those jurisdictions that you named that some significant entities are starting to use SIAC as their preferred dispute resolution choice. And that's one of the challenges of marketing an institution because you actually don't want parties to go to dispute. You hope that that they don't have to go to an arbitration, but that they have confidence to use SIAC arbitration clauses. So we're just as happy when we know if it's an entity from Panama, Peru, Argentina, as the case may be, that they're starting to use SIAC clauses. And whether or not that goes to a dispute, hopefully it doesn't. Maybe they're able to settle on their disputes or because of the confidence in SIAC as an institution, the parties tend to keep to their bargains because they know if they go to arbitration, it's likely going to be very fast and very cost effective for the counterparty.
J.P.: Yeah, well, that is certainly the case. I think we all always hope when we're drafting arbitration clauses that they never get invoked. But, you know, it's certainly my experience, at least, that, you know, 15 to 20% of those will end up at a certain point in time in arbitration. And so it's good to see that SIAC clauses are being written. And I know certainly clients that we have are extremely interested in that. And not simply when there's any sort of, you know, Asian nexus. It can be just about anything at this point. Well, that raises a really good question, which is, what would you say, Adriana and Kevin, have been the biggest accomplishments that SIAC has had in the Americas since opening? I mean, it's been a really challenging time, but you've obviously put SIAC on the map even more so in the Americas. So what would you see as the biggest accomplishment in the last, I guess, three or four years?
Kevin: J.P., I might just start and then I'll pass it over to Adriana. So the joke that I always make internally about Adriana setting up the New York office is that she effectively came here with a paperclip and ended up bartering her way into having a very well-running office. So certainly that was a challenge for Adriana coming all the way from Singapore and being able to set up this vibrant office that is doing some really interesting things. Effectively just with a paperclip and bordering her way and navigating New York City to get this office up and running. But I'll pass it over to Adriana.
Adriana: Thanks, Kevin. I guess aside from what Kevin just said, I would say getting new users from new jurisdictions would be one of our biggest accomplishments, J.P. Since opening the New York office in December 2020, we have gained new users from places like Argentina with the first ever case from that jurisdiction filed just last year and Colombia, which we spoke about. What's interesting about the case involving Colombia is that the counterparty is from Switzerland, showing the potential for cases in the Americas with no Asian nexus. We're also seeing a rising trend in cases from Panama. I think we've touched on that earlier. And more and more of our clauses are also making their way into contracts across Latin America. Just yesterday, we received an email from a firm in Guayaquil and Quito informing forming us, they've included SIAC clauses across a suite of contracts. A Spanish law firm with Latin American clients recently also indicated they're trying SIAC, including us in contracts for the first time. Peru, like. I mentioned earlier, a Peruvian law firm also told us that they're currently handling a contract with an SIAC clause for the first time. So this could be SIAC's first Peruvian case if the clause is activated. There was also a prominent U.S. entertainment company that requested information on SIAC as it considers switching from U.S. arbitral centers to SIAC. And speaking on the U.S., we've seen a rise in filings since the launch of our New York office. Another notable trend is that But while SIAC is often chosen when Asian parties are involved in, you know, repeating what Kevin just said, we're now handling cases between American parties or between Americans and Europeans without any Singapore-Asian connection. And I think this trend really highlights SIAC's growing international reach and reputation.
J.P.: Well, that is certainly impressive meteoric growth. And, you know, it's an old, it's a trite old song lyric, but the song lyric that if you can make it here, you can make it anywhere really is true. And you certainly have. Let me ask then just a concluding question for you, Adriana. And obviously, Kevin, you should feel free to jump in as well. But where would you like to see the New York SIAC office in, say, five years? What would you think that looks like?
Adriana: I think in the next five years, we see SIAC becoming a major player in the arbitration landscape across the Americas. We're focused on establishing a strong presence and building solid relationships with businesses, legal professionals, and arbitration practitioners throughout North and South America.
J.P.: Good. Kevin, anything you want to add there?
Kevin: Maybe just that it almost goes to the mandate of an institution, is what is an institution really there for? And I think that we believe that we are there to promote the advantages of international arbitration and to really be a contributor. And that's what we've tried to be with the America's Office in New York, is to be a part of the international arbitration community. And one thing that I would say about where we want to be in five years or 10 years is from a case management standpoint, we just want to keep getting better and better. Arbitration is not like it was 10 years ago or 20 years ago. You have to be fast, thoughtful, precise. The case management matters. And that's what we focus on. And we're going to continue to listen to our users and try to be updating ourselves for 2024 beyond.
J.P.: Well, those are all good goals to have. And I think we'll keep our ear to the ground for future developments on things like case management and new rules. And I think I'll exercise my prerogative to reserve my right to call you guys back to discuss those things in the near future, because I think there's been such incredible growth and so many incredible developments, and I'm sure there'll be more to discuss again in the near future. But with that, I think we should conclude our discussion. And I want to thank you both. I want to thank our guests, Kevin Nash and Adriana Uson from the SIAC for offering their invaluable insights. And I want to thank you, the listeners, for tuning in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. I'll take the initiative and speak for both Adriana and Kevin and say you should feel free to reach out to them as well about any questions you might have. We look forward to having you tune in for future episodes in the series. So thank you again to Adriana and Kevin, and we look forward to having you back.
Adriana: Thank you, J.P.
Kevin: Thank you.
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NYIAC Executive Director Rekha Rangachari discusses the NYIAC’s mission, structure, and initiatives with International Arbitration partner J.P. Duffy.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's international arbitration practice. I hope you enjoy the industry commentary, insights, and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights, in which we will discuss the New York International Arbitration Center with Rekha Rangachari, who is NYIAC's Executive Director. I'm J.P. Duffy. I'm an international arbitration partner at Reed Smith based in New York that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England and Wales, and the DIFC courts in Dubai, where I previously lived and practiced. I routinely represent clients in arbitrations involving a range of issues and frequently sit as an arbitrator in commercial disputes as well. I also have the good fortune to be a member of the NYIAC programming committee and previously served on NYIAC's board. With us today, as I mentioned earlier, is Rekha Rangachari, who served as the executive director for NYIAC since 2017. In that role, Rekha collaborates with stakeholders and thought leaders in the space to advance global scholarship and best practices, offers educational programming events, trainings, and operates world-class hearing facilities in Manhattan. Rekha is also actively engaged with the arbitration community as a global leader across bar associations and legal journals, and as an adjunct faculty member at both Fordham and Cardozo Law Schools. So we're thrilled to have Rekha today because she's obviously a wealth of knowledge and insight. So welcome, Rekha.
Rekha: Thanks so much for having me, J.P., and to the Reed Smith team for putting this together.
J.P.: Of course. Well, let me start by giving a little bit of background on the NYIAC for those that are not familiar. NYIAC is a nonprofit organization that rose out of a 2011 New York State Bar Association Task Force report that identified the need for a dedicated arbitral center in New York to maintain its position as a preeminent international law jurisdiction. The NYIAC, which opened in 2013, was the solution to that report and was formed to advance, strengthen, and promote international arbitration in New York generally. Unlike some other organizations, NYIAC offers world-class hearing facilities, but it doesn't administer cases or issue rules.
Rekha: And J.P. I’ll jump in here and note, NYIAC's only administrative rule, titled NYIAC Arbitration Rule No. 1, that can be found on our website, provides that where parties are referred in an arbitration clause or agreement to NYIAC rules or administration, absent other agreement by the parties, the place of arbitration will be in New York. The case will be governed by UNCITRAL arbitration rules, and the hearings will take place unless impractical at NIA in New York. So I will add, in addition, we do get written in two clauses as if we are an administering body, which we are not. And so in those instances, it's good fortune that we have so many leading arbitral institutions in our backyard that we can reference if the parties agree.
J.P.: Well, that's great. It's always simple for people like me to have just one rule to follow, which is see rule number one. And that's a really helpful bit of information because I've seen that as well, where people write it in not appreciating what NYIAC really does. And really, at the end of the day, I think the best way to characterize NYIAC is a thought leader.
Rekha: I agree with that. Yep.
J.P.: Yeah. And it develops programs and materials about international arbitration in New York, the application of New York law and international arbitration, and the recognition, enforcement, and implementation in New York of arbitral awards. So really at the end of the day, it's promoting New York as a seat and an arbitration center. And that was one of the guiding principles and the guiding raison d'etre for the NYIAC. So let me ask you a question then, Rekha, and you've started to touch on this, but really at the end of the day, what makes NYIAC different from other arbitral institutions?
Rekha: Sure. Thanks for that. You know, there are a few bodies like it in the arbitration landscape, a dedicated center for global arbitration and for the community at large to advance, strengthen, and promote New York as an arbitral seat and venue, as well as New York as a lead choice of substantive law in contracts. NYIAC is independent of all arbitral institutions and of arbitration rules, but for rule number one. And since NYIAC's founding in 2013, together with the opening of the ICC's New York office, SICANA, we have really seen a growth in the use of all things New York. New York leads in this as the most frequently used and selected U.S. Law for international disputes, as well as the lead seat. Financially, as a structure, we're privately funded by founding firms, the best in class, and it's their strength, their deep bench of experience and acumen that drive NYIAC. More recently, we added an advisory council of experts and third-party funders as well to our financial model. And it's through these tranches NYIAC aims to be representative of our growing arbitral community. As you've already mentioned, we regularly host academic programs, trainings, and workshops. And whether you're in town for an UNCITRAL working group session or at one of New York's leading law schools or institutions, for an event, or you're just a New York local, all come through the doors of NYIAC. So it's a uniform space where all are welcome as we further best practices from our perch in New York.
J.P.: Wow. That's a true differentiator from other organizations. Now, let me ask, Rekha, because one of the key features of NYIAC is obviously offering an incredible hearing space. How many cases has NYIAC hosted since it opened in 2013?
Rekha: Since our launch, we've hosted over 200 hearings, totaling some 950 hearing days, with cases administered by the top arbitral institutions, so ICC, ICSID, PCA, LCIA, CIAC, and the list goes on. I'll add here too, in our early years, we benefited from subleasing space from the AAA ICDR. Today, we collaborate with groups including JAMS and the New York City Bar, building a shared community with constant activity along the Midtown Manhattan Corridor. So do step in.
J.P.: Yeah, it's a very, very impressive space. And while the old hearing venue is nice, the new one is certainly an improvement, which I didn't think was possible, but it is. Now, what are some of the reasons then that you would tout for why parties would want to choose NYIAC as a hearing venue?
Rekha: I’ll give you three. Neutrality, expertise, and service. As counsel teams, there's enough to worry about. Same with the tribunal. And so it's easy to leave it to NYIAC for all of those needs. I'll mix a famous brand saying here, a la Burger King, have it your way. So come on in and let us take care of all the logistics of your hearing so you can focus on the substantive aspects of the case.
J.P.: Well, that is one of the really nice advantages of having a hearing at NYIAC. It really does take the pressure off of counsel to deal with any of the things other than the actual merits of the case. And NYIAC does a really superb job managing that so that you don't have to think about logistics that you don't want to worry about. Basic things such as who's going to host who's going to host lunch and where, and really important things such as technology and translation and LiveNote, all that. It can all be passed off to the organization, which handles it in sort of expert fashion. So a really, really nice facet of using NYIAC. Now, Rekha, you touched a bit on NYIAC structure, but let's just delve into that a little bit more. For those that are unfamiliar, familiar given that it did arise out of a New York State Bar Report and really is designed to promote New York as a seat in some respects. What is NYIAC's relationship to New York State and other governmental organizations?
Rekha: Let me approach NYIAC's community involvement from a different angle, J.P.. We're actually involved with the city and state bar associations, you know, drafting reports and templates and codifying best practices, less so specifically with governmental organizations and bodies. And so I'll give you an example here. NYIAC's leadership is actively involved in drafting important reports for the city bar's international commercial disputes, and arbitration committees. And a small sampling of that, and I'm going to direct our readers here to the Citi Bar website and these reports, are the model federal arbitration summons to testify and present documentary evidence in arbitration hearings as of March 2024, the report of the working group on three private international law treatises as requested by the U.S. Department Office of the Legal Advisor of Private International Law, including the Hague Convention choice of court agreements, the COCA Convention, the Hague Convention on the the Recognition and Enforcement of Forbidden Judgments in Civil or Commercial Matters, the Judgments Convention, and the United Nations Convention on International Settlement Agreements resulting from mediation, the Singapore Convention. As well, we drafted a letter, NYIAC supported this in addition to the City Bar and several other organizations, a letter with a proposal to the U.S. Treasury Department's Office of Foreign Asset Control, OFAC, to issue a general license permitting U.S. Persons subject to certain conditions to perform services related to private commercial arbitration proceedings involving parties whose property and interests in property are blocked on the same terms as existing general licenses related to litigation involving blocked persons. And finally, a report on procedures for asserting and evaluating privilege claims in international arbitration as of October 2023, which was featured at a session during New York Arbitration Week. So this active engagement in proffering best practices and and codifying it through reports is a fundamental mission of NYIAC in addition to everything else we do.
J.P.: And I have to say some of those task force or some of the reports and the thought leadership that NYIAC puts out is really critical and used every day. I just made use of the, or that NYIAC assists with, I guess, I just made use of the report on arbitral summonses again last week as counsel. And I almost always send that to the parties when I'm sitting as arbitrator because it's such a useful resource amongst others. Now, just to sum that up, then it's correct to say that unlike some other institutions around the globe, NYIAC is not really a state funded entity. It's funded by local stakeholders, predominantly law firms, and is really then independent of the local government. Is that?
Rekha: Correct. And I'm glad you make that distinction. I had highlighted it before, but it's important to drive home. We are a privately funded body by law firms in the first instance at our inception, and then more recently through an advisory council of economists and third party funders. So really representative of the arbitration community at large, and they are financing this center in New York. And so it's important also that it's not funded by the government as well. We're not a chambers, right? So we're really a center that does so many aspects of things, including host hearing.
J.P.: That's great. Yeah, it's a really unique structure, I think, that really gives it a lot of independence while still giving it a lot of thought leadership drive behind it. Now, you just mentioned the advisory council. Maybe you could tell the listeners a bit about the advisory council and what it does.
Rekha: Sure. We launched an advisory council in 2022. It's comprised of 11 economist firms and third-party funding firms as a means to draw our community closer, build cohesiveness with the experts who help us win cases. Notably, in 2023, we launched a series titled Working with the Damages Quantum Expert, where in monthly sessions, we cover topics including DCF, accounting, market valuation and capitalization using market method and event studies, and issues in post-valuation, things like limits on recovery, interest, and taxation, as a means to start the relationships between lawyers and these experts and funders and get into the nitty gritty of these topics, make everyone more conversant about them. And so it's been really fruitful. We have our final session upcoming in June to close out the series. And then we're thinking hard about what comes next. Fashioning a sort of academy where we can do a deep dive into advocacy and training on these critical topics.
J.P.: That's really great. And I want to dive more into programming in just a minute. But before we do that, is it correct then that the advisory council is different than the advisory board?
Rekha: Yes. So a good distinction. So we have two advisory bodies. We have this advisory council, economists and funders that comprise it. And then we have a global advisory Board. So the Global Advisory Board is a combination of practitioners, academics. It's led by George Bermann and Eric Schwartz. And we use them as our voices to understand what we should be doing in the space, what more we could do, how is the application of New York law important across the globe in different ways, and how are we growing as a community out of New York. And so we have the luxury, I think, of because we're in New York, so many visit us with frequency that we can get these various advisors together to make sure we've just completed one decade. We're looking to our next. How are we going to keep growing for the future? And it's these advisors that are going to help us do it.
J.P.: It is a really impressive group as well. When you look at the list of names of people that sit on the advisory board, it is quite austere and quite impressive. So worth taking advice from. Now, you started to talk a bit about some of the programming that NYIAC is doing. And you talked a lot about the quantum series that was just done, which is about to be concluded, which is a really useful series that I definitely recommend to listeners. What are some other recent events that NYIAC has hosted or sponsored so that the listeners get a sense of some of the other programming that goes on?
Rekha: So we have two signature events annually, our Grand Central Forum and, as many of you may know, New York Arbitration Week. Last year, being our 10th anniversary, we held a panel for Grand Central Forum in September titled, Selecting New York Law for Cross-Border Transactions, a Wise Choice, with a panel of in-house experts and arbitrators, moderated by Lucy Reed, with a keynote from Eduardo Zuleta. And as well, during the celebrations, we were able to have Judge Garcia in, who had clerked for Judge Kaye, our first chair of NYIAC, the founding chair, the reason NYIAC exists, to speak about her work, not only on the bench, but also in shaping NYIAC. Beyond these programmings, these two annual events we have, we also collaborate regularly with the UNCITRAL Secretariat when it's in session in New York for Working Groups 2, two, dispute resolution and working group three, ISDS reform. We most recently had a program during the working group three on reform and about financing of standing mechanism and advisory center. We were able to get a lot of representatives from the various ministries attending and participating actively in that conversation, similar to the conversations we were having on the floor of the working group. And so the goal really here is to bring together different Right. Whether it's about international commercial arbitration or investment arbitration. We've even done a program titled Disputes with a Salty Flavor and how to resolve them delving into international maritime arbitration. And so it's really trying to. Create a tapestry of different topics that are innovative, if that's possible, and new. Thoughtful and mindful, even, that there are so many programs in this day and age that we can't exhaust our audience, our local audience here in New York, but we certainly have to do things in allyship with other organizations. So we're working together to do better, more refined programming, and even less of it. But how do we deliver the content? 10. And so we're always thinking about that. And I'm grateful, J.P., that you're part of our program committee and you help us think critically about what we should be doing to make sure we take the summer months off because everyone comes back rejuvenated in the fall and ready to hit the ground running. And I hope to see many of you in the fall at Grand Central Forum, which is targeted again for September, as well as New York Arbitration Week, which is the week before Thanksgiving in November.
J.P.: Well, I have to say it's really a pleasure to serve on the programming committee because some of the NYIAC programming is really exceptional and it is different than other programming that's going on. And that's really, that may sound a bit odd, but in this day and age of a lot of programming that's available around the world, having true differentiator programs is really nice. And I know I've put on a few that have been really fun and some of the other ones that have come out have been really, really valuable. Before we lose it, or before I lose the thought, Rekha, and I may have missed you saying it, but what is the actual date for the Grand Central Forum?
Rekha: We're in process of finalizing it.
J.P.: That's right. I should know that. I should know that.
Rekha: No, no. We discussed how we threw out some dates, but I will certainly get back to our audience and make sure that everyone is privy to the details and the registration. So please stay tuned.
J.P.: I was going to say, stay tuned. It's coming out and I'm sure you will get an email from NYIAC if you were on the list for that date because it's a really great event.
Rekha: Maybe this is a good plug, J.P., to say for any of our listeners, NYIAC Weekly publishes a newsletter trying to capture, to the best of our ability, all of the events that happen in New York, as well as globally. It came actually out of, I was traveling for fun in Colombia, and I was in Cartagena, and I was looking around in the lobby and realized that there were a lot of people I recognized from the arbitration community. And of all things, it just so happened that there was an arbitration congress happening while I was there on holiday. And I thought, how come I didn't know about it, right? Because there are so many things going on, and we all stay informed in different ways. And so out of that, I realized maybe it would be useful for NYIAC to collect all of these events in chronological order and publish them on a weekly basis so that no matter where you are in the world, whether in your own backyard or traveling, that you can find an event if you're looking for one, if you just take a snap of the newsletter. And so you can go on our website and sign up for it. And it's also a really good way, frankly, for us not to plan events at the same times as our friends and colleagues. So we don't detract from delegate attendance at any of these, so that everyone has robust interventions and folks in attendance.
J.P.: Yeah, Rekha, I'm really glad you brought that up. That is the most useful email that I get every Friday, almost every week. And I almost always routinely forward it to everyone within the Reed Smith International Arbitration Group because it is such a good summary of what's going on globally and also what other opportunities are available within the sort of industry sector. So, for instance, that email will contain things like information about what YAAF groups are seeking leadership applications, what sort of scholarships are available, what sort of writing opportunities there are. It's a really, really, really valuable summary of everything that's going on in a very digestible snippet. So I definitely recommend it to listeners. You will be happy that you signed up for it if you do. So with that, let's talk really quickly then to sort of wrap things up about looking ahead and where NYIAC is going in the future. Rekha, if there's one thing you'd like to see NYIAC accomplish in 2024, what would it be?
Rekha: I’d really like to build deeper with the associates across our law firms. We started with trainings for arbitrators in 2013 and 2014, and now the institutions have taken lead on that. And so I want to build workshops to fine-tune associate advocacy and do it in a way we're also building the community across our law firms. That's the benefit of having these illustrious law firms that fund NYIAC. And so that the associate classes, not only within their firms, but across the firms, are building relationships with one another. It's only going to help them more in the future. And so that's one thing. And I think in doing that, it's also a means to disprove the idea that international arbitration is a club. Rather, it's this idea that NYIAC and many other bodies put forward that if you work card, you're kind and you're smart and ever discerning, you'll have a seat at the table. And I mean that. You'll have a seat at the NYIAC table if you do those things. And you reach out because we do it better together. And although cheesy, it's important to drive that home because there are so many interested in this practice. Year after year, going to the Vis arbitration in Vienna or in Hong Kong, you see this desire of so many students committing themselves to the substantive aspects and the procedural issues and wanting to be part of this practice. And they might not start out in the practice just because of where job vacancies exist, but they end up somehow coming back to it if they're able to. And so we want to hold on to all of that talent and figuring out how to do it, particularly across the New York law schools. I'll give you an example, trying to map all of those students that come into New York, that study at these leading law schools, that take the New York bar, and perhaps they go back to their home jurisdiction or another jurisdiction over time, but they always have an interest in New York and coming back. It's that slogan, I love New York. There's an international arbitration club that they put forward this notion, right? The I Love New York campaign of which NYIAC was built from. And so we want to hold on to that, that love of New York, the application of New York law, the commercial reasonableness, the reps and warranties of why it's getting applied more and more, and why even these lawyers that may not be sitting in New York are still recommending where appropriate New York law. How do we hold on to that? They're not only our brand managers, but they're our friends. And so I want to keep thinking critically about how we hold on. To all of that talent and stay connected in a world where everything is digitized and it's so easy to hop on a podcast or a webinar or whatever it is and connect with somebody no matter the time of day.
J.P.: That's a really, really excellent, important point to drive home, Rekha. And I'm really glad to hear you bang that drum as well, because I am constantly telling associates within my firm to get involved, to get involved early, to join every YAAF group that they can or young international group that they can, because it really is the best way to start getting involved in the community. And NYIAC is a really great place to start doing that. So please do take up Rekha on her, what I will call her invitation to get more involved with NYIAC in particular. Rekha, let me just conclude this then by asking you one last question. Where would you like to see NYIAC in sort of five to 10 years from now?
Rekha: So we've completed 10 years, as I mentioned last year. So we're looking to the next 10 and the next 20. And so I think the biggest focus in the next years will be to grow through the three Cs, creativity, coordination, and collaboration. So we're going to keep hosting hearings, perhaps even at more venues than we already have in our purview, to make sure that the parties have whatever they need to make it easy, right? We're going to keep putting on events and substantive sessions and bringing the community together at different junctures. and we're going to keep trying to publish important reports, all of that with momentum, right? But the truth is that we also just have to keep taking stock of where are we at and what does the community need? And I can't answer that easily. And so rest assured through our founding firms, through our advisory council, through our global advisory board, through the excellent NYIAC leadership, both at the officer level and the executive committee, we will figure it out together, and I always welcome audience participation. So if you have an idea or you think NYIAC should be doing something, it's as easy as dropping a line to info, I-N-F-O, at NYIAC, N-Y-I-A-C. Not to be confused with the town in upstate New York, NYIAC.org. So info@NYIAC.org. If you drop a line, we're always welcome to the feedback, back because certainly NYIAC is there for the people and we need to cater to those interests. So let me know. We have individual memberships too to the degree that you're looking to get more involved in NYIAC. Do that individual membership tranche, so you can then join the program committee like J.P. and others. And we have about 25 strong, J.P. It's a robust committee. But through all of that feedback and folks all over the world, they're opining on what should our big topic big programs be? How should we be dealing with new content? So get involved with NYIAC at any aspect you'd like to and do drop a line if you have any suggestions or you have a question.
J.P.: That's really great to hear. And I can reemphasize, Rekha really means it when she says, welcome to all suggestions, because she will absolutely take them under advisement and you could well help shape how programming goes and how NYIAC itself develops. So please do reach out. Well, with that, I think we can say that concludes our discussion of the New York International Arbitration Center. I want to thank our guest, Rekha Rangachari of NYIAC for her invaluable insights. And I want to thank you, the listeners, for listening in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should also feel free to reach out to Rekha directly as I'm certain she'll be happy to answer any questions that she can. We look forward to having you tune in for future episodes in the series. Rekha, thank you again. Really a pleasure as always. And we look forward to having you back in the future.
Rekha: Thanks so much, J.P. This was good fun.
Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, Search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com, and our social media accounts at Reed Smith LLP on LinkedIn, Facebook, and Twitter.
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Explore the art of cross-examination in international arbitration with J.P. Duffy and Raj Pillai KC (3VB). In this episode, the duo discusses strategic insights, preparation techniques, tribunal expectations, and question dynamics that lead to effective cross-examination.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights which will discuss effective cross examination and international arbitration with Raj Pillai KC, who's a barrister at 3VB in London. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both council and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I participate in several hearings a year as both council and arbitrator in which witnesses are cross-examined and can offer a more American point of view on this subject. As I mentioned with me today is Raj Pillai, who's a King's Council based in London. He acts in international arbitrations and also appears in English courts and various others including the BVI, Abu Dhabi and Singapore. His role is generally as lead advocate. So he will determine strategy with the client and the legal team and then run the arguments and carry out the cross-examinations. Raj is gonna offer some insights based on both common law litigation and his arbitration experience. So welcome Raj and thank you for joining us today.
Raj: Thanks J.P. Nice to be here.
J.P.: So let me begin by talking about the importance of cross examination in international arbitration so that we can set the stage of it for our discussion. As many of the listeners will know in international arbitration, direct witness testimony is usually offered by witness statement and that's written witness statement. And what that means is that the witness will tell their story through a written document that has been prepared with the help of lawyers. There's a trend in occasion for some of these witness statements to be written entirely by the legal team and then signed off by the witness that can be a mistake because oftentimes it doesn't present the witness in a manner that allows the witness to seem very authentic or seem like they're offering their true factual story. Typically, the way that we like to do things is we like to interview the witness, hear their story, prepare them in at least from the US perspective in a way that we might prepare a witness for direct examination and then put their witness statement down on paper and then have them sign off on that. That's usually the way it's done in the US I should mention, I'm qualified in England and Wales as well. So we can have issues occasionally with how we prepare witnesses and the differences between the two systems. But I think that's usually the way most people would do it from a general perspective. Now, what that also means is that cross therefore becomes the first opportunity for the tribunal to really hear from the witness themselves and to assess the witness. So it's one thing and I've noticed this sitting in as arbitrator, it's one thing to read a witness statement and to get a sense of what you might think the witness is, it's a very different experience. When you then see that witness hear from them live, see their mannerisms, hear their words coming directly from their mouth, with their own timber, their own tenor and their own delivery. So cross really takes on a disproportionate value and importance in international arbitration because you've not heard from them before. Now, there's in my experience at least, and Raj may have different ones, There are rarely any surprises on cross. Although Raj and I did have an experience many years ago in Singapore where a witness um that I was crossing started to offer a lot of testimony that that no one had ever heard before. But for the most part there's rarely those sort of TV moments where someone admits to everything that they've been accused of or admits to something that's been a key issue in a case. But it's still allows you to discredit witnesses and to highlight the other party's weaknesses and the strengths in your case. So it is a critical, critical phase and a critical skill. And it's one that many lawyers, particularly in jurisdictions like the US may not have as much experience with. And just to give some background on that, statistically, the vast majority of US cases never get to a trial, which is where you would cross examine a witness in the US. Many, many, many US lawyers are very familiar with direct, which is a fact gathering exercise um because they depose witnesses, they conduct direct examinations all the time, but many do not have experience with the process of cross, which involves really testing a witness's direct testimony. It's a very different skill set and a very different approach. And notably, it can really backfire if it's done improperly. Um A good cross is highly effective and highly persuasive. A bad cross can be more damaging than no cross at all. So with that, let me ask Raj a few questions about how he approaches cross. Raj, what's the first thing that you consider when you're preparing to cross a witness?
Raj: The first thing really is whether you need to cross them at all because as you pointed out J.P. the question is how you test a witness. Now, you gotta ask yourself, is there a point I need to make by referring uh this witness to a document, can I undermine their credibility because they've said X in their statement? And there's a document that shows entirely the opposite. Also, if you're looking at a case that involves fraud allegations, there is a different aspect to it because the way we call it, uh put it in England is that the witness should have a chance to respond to the allegation. So do you have to put the point to the witness? And there are some differences in practice and expectation in this regard between court and litigation. And I just want to pick up on one of the things you said about the preparation of the witness statement because that feeds in to how a witness will react to cross-examination. If it's too technical, if it's too legalese, then when they're preparing it in the week before the hearing, the night before the hearing, you know, they're busy people. They haven't been focusing on the case in the way the legal team does. Um, they need to be able to understand what's been said and they need to understand their story because if they can't, then they're, they're gonna be more vulnerable when it comes to the cross-examination. And that's one of the things I think it's important to teach your legal team, particularly younger lawyers when they're drafting these first cuts of these statements is don't say something that your client is not gonna be able to hold up that isn't in simple language.
J.P.: Just on that point as well. I think you raise an excellent point, which is to say as well when you're preparing these witness statements, do it in the language that the witness himself or herself would use and don't make it overly legalistic because there's nothing worse than seeing a witness cross-examined on a phrase that they don't understand at all because they would never use it. But I've seen that experience and it's quite, it's quite embarrassing on cross.
Raj: And it's one of those easy things to avoid. But what often doesn't happen, I think it feeds into experience both, you know, in US litigation, but also in London Court and arbitration is that a lot of commercial disputes and heavily complex, expensive, high value ones, you know, people settle them so they don't fight. But you've always got to remember as the lawyer, what's this gonna be used for in two months, six months, two years time, you know, and, and for younger lawyers again, where's this? Where's this paragraph I've written? Then next going to come to light and if it's in cross-examination, then the witness needs to be able to uphold it. So we're talking about, um, whether you need to cross examine and the key thing is what you need to get out of the other side's witness to make your case go forward. If there's fraud allegations, you might need to put those points and say you lied on this and then you take them to the evidence that supports your case and why you say they lied. But particularly in arbitrations, there is some flexibility about that. Really think as an advocate, you've got to focus on what's important because you might have very long witness statements, you know, with 50 factual disputes of which only two or three are important. And remember time is often tight in an arbitration, you're gonna have slots for each witness because of their availability and the and the tribunal's availability. So really uh make sure you can focus on the key points and also don't ask questions to which you don't know the answer. We're gonna come to this in a little bit. Um But you don't want to allow witnesses to correct weak points in their evidence. So don't ask questions which give them an easy goal. And also there will be a difference which we'll pick up on between factual witnesses. Those are the ones who were involved in things that happened at the time. They're telling their story and expert witnesses who are generally brought in to assist the tribunal with their notionally independent expertise on a given technical area like valuation or technical specifications in the particular sector.
J.P.: Yeah, Raj, you raised a few excellent points and one I just wanted to pick up on that I'm sure we're going to hit on more later, is being really selective about what you cross the witness on and you made a really good point about not allowing the witness to correct weak points. Um, and one of the things that comes out of that, that I'm sure we'll talk more is when you oftentimes read through a witness statement, you will see things that are occasionally glaring errors and sometimes those glaring errors are ones that would be easy to pick apart on cross. Other times, you just want to leave them alone because it's much better to address those in written submissions and point out the glaring inconsistency than allow the witness to go back and say, oh yes, I misspoke or yes. What I really meant was this and I think that's what you're getting at. It's a real art form when it's done well. Um But it's, it again, goes to your point about being, being selective. Now, Raj, what are some of the other things that you consider um when you're preparing for cross examination?
Raj: So I, I think we're gonna come to it. It's about preparation. But one of the aspects of that preparation is picking out by analyzing the legal case and the documentary record, what you need the tribunal to understand what documents they need to have seen. You won't always get a chance in a, in a compressed hearing or a timetable to have brought that out in a, in a long opening speech or similar. So with a witness, if they've written the key email or they were copied in on the email and, you know, you could expect them to have responded. If it was important to them at the time and their account differs in their witness testimony, then you've got to make sure that you're gonna bring those out in a, in a carefully planned cross examination. Sometimes that can be thematic. Uh But otherwise it might be chronological depending on what sort of case you've got. And you've got to do it at a pace and, and with a clarity that allows the tribunal who won't be as well prepared as you and won't be as well prepared properly as the witness to understand and to follow. Ah, I see this email fits into such and such. That's the aspect of the case this goes to. So you don't want to leave them behind and you've got pace it accordingly and check that you're bringing the tribunal along with you.
J.P.: Yeah, those are, those are excellent points. And, you know, if I were to sort of summarize that, I think really what you want to do is be pick a few key points that you need to hit in your cross-examination. And this is something I know we're going to talk a lot about. But you have to go into these with a clear strategy, objective and knowing exactly what you want to accomplish. And sometimes you can accomplish it clearly right away. Sometimes it may become apparent from speaking with the witness that you will not accomplish certain things, but that other things will be easier to accomplish. You really do need to understand what you're trying to get out of the witness and to make those points accessible to the tribunal. Because if you don't, it becomes a rather long exercise in confusion. That can be, that can be really, you know, really a waste of time. And your, your point about addressing key points in your case is really, you know, it seems axiomatic and it seems obvious, but it's amazing how oftentimes parties start crossing on points and either the tribunal or opposing counsel sitting there staring dumbfounded because they have no idea why you're getting at something. Um, and wasting time on meaningless points is really an ineffective way to go about it.
Raj: When that happens, when my opponents start doing that, I'm entirely relaxed about it because they're wasting their own time and the tribunal will spend a couple of minutes thinking where are they going? And then, you know, they'll pick up on this being a waste of time. They'll switch off, you know, when you see them going glazed over when your other side is using up their time. That's perfect.
J.P.: Yeah, that's exactly right. And you, you also hit a point that I think we're going to talk more about, but it's really, you have to understand your tribunal when you're doing this. Um It's really key to understand the background, the legal, the legal tradition from which they hail what type of experience they have with both hearings and cross-examination. You know, it can be the case that you can have a tribunal member who was not a practicing advocate and that party or that tribunal member may well not understand the purpose of cross or may not see cross the way that you do. You know, we talked in advance of recording this about, you know, perhaps having a uh a tribunal member who hails from a different civil law tradition that would not use cross or would not understand it. So you really do need to understand, um you do need to understand your tribunal and in that regard, you really need to understand the witness too. You know, some, every witness is different, just like every person is different. Some can be more combative, some can be more talkative, some can be more cagey and you may or may not know that going in. Oftentimes in the types of cases that Raj and I do the party that you are representing as the advocate will have a very good sense of what type of person the witness is because they will have dealt with them a good deal, but that's not always the case. So you really do need to fill out the witness as well. Let's then talk a bit about because we were talking about how to do this effectively. Let's talk about some of the steps that we take to prepare for one of these. And the first one again is, seems obvious, but it's one that gets lost on occasion and it's really to prepare thoroughly. You really need to know all the key facts and all the key documents in order to effectively cross examine someone. It happens where you see someone who's pulled into a case at the last minute or they've not thoroughly prepared themselves, they've left the preparation of someone else or picking up and they will start a cross-examination and they will ask a question and that question, will there be in artfully asked or they will miss an answer. Um You know, the witness might have given an answer that would lead to a new line of questioning or a key admission, but they've not picked up on that because they've not known all the facts or they will simply ask a question that's inadvisable. You know, as Raj said earlier, don't ask a question to which you don't know the answer. Um That happens and that happens when someone's not prepared. And you, so you really need to know all the key facts of the case and the documents. You need to know the witness statements cold both the witness that you're cross-examining and the other witnesses in the case. If you don't know what the other witnesses have said, it's very, very difficult to effectively cross examine the witness in front of you, and Raj, I'm sure you've had this experience where you've seen someone make an admission that's addressed in someone else's witness statement, but an advocate hasn't necessarily picked up on that because they've not fully prepared the case. Have you ever had that, that happened in a case for you?
Raj: Not on my part, but it, it occasionally happens on the other side. I mean, I've never had it happen on a crucial point because generally, you know, we've been talking about the big picture things. Um But yeah, you do have that and equally, you have witness statements which just have verbatim, same chunks sometimes just cut and paste it and there you trust the tribunal as well because you make the point softly, it's all there. But yeah, it's, it's all about the preparation.
J.P.: Yeah, that's right. And I think, you know, part of part of this to a, a preparation is having a game plan for how you're going to go about each witness, right? And that again seems obvious, but you need to go in with not just a set script because every script will deviate instantaneously, but a game plan that understands where you need to get to and how you plan to get there. But you need some flexibility for how you're going to do that. Now, one effective practical way to go about that is to consider making a bundle for each witness, right? So if you know that you need to hit three points with a certain witness and that three of those points are going to be addressed by five different documents, have a bundle together of those five documents that you can give the witness in advance, that you can give to the tribunal and have copies for the other side as well. So that you can effectively move through that part of what we're going to talk about as well is the pace and the tenor of cross and how you control a witness, which is something Raj is going to address next. But part of how you control that witness is the pace at which you move, how quickly you're asking questions and the tenor by which you're doing it and having a bundle of documents for that witness to address without giving them the opportunity to pause thumb through things, go searching for documents in the record. It really adds to the effectiveness of cross. And the last thing is is we talked about know the witness themselves, we touched on this a bit earlier, but to the extent you can get as much intelligence in advance about the witness, how talkative they are. Um you know what type of culture they come from some cultures, some cultural backgrounds may be that people speak less, some cultural backgrounds, maybe that some people speak more, you know, some people may be more aggressive, less aggressive, those are generalizations. But it also comes down to the individual. Obviously, you know, any individual can be um combative, can be shy, can be meek. You need to understand that as quickly as you can, the best way is to get intelligence in advance. But you will also start to suss that out as you cross examine the witnesses themselves And we're going to talk about this more too. But you can also encourage those types of responses by the manner in which you cross examine someone as well. So we talked a bit about, we started to touch on controlling the witness. Raj, why don't you give the audience a bit on the importance of controlling the witness and how you go about it.
Raj: So a witness comes to the court of tribunal to tell their story. Sometimes it's their chance of having their day in court. Now, tribunals and courts are not that interested in which uh in witnesses giving speeches. So what you want to do is have a clear strategy and line of questioning that doesn't allow them to deviate and go on to points that are either irrelevant and are wasting your time that are dead ends, which are also wasting your time or otherwise are giving them a chance to make their position better than appears on the documents they prepared beforehand. So you want to get the key evidence on the transcript and do it as efficiently as possible. And you're always going to be under time pressure because as we've said, claims run on timetables, you know, the witness, when they go, they're gone, you're not going to get a second go. Um, and, and the key is to remember, you're in charge as the cross-examining advocate, nobody else knows where you're going to go. Now sure you'll see, particularly in our line of work, some very confident individuals coming to the stand. But you know, sometimes that confidence can be their own weakness, cos they will try to assume that they know what your story is, the line you're taking and they will try to prejudge answers and jump ahead sometimes to show how clever they are. But often always just to keep telling their story and spin it. Our tribunal, particularly an experienced one is unlikely to be impressed by attempts to speak or attempts to jump ahead or second guess. But you will always ultimately have to let witnesses finish their answers. We, you know, we'll touch on being respectful generally towards the tribunal, but also to the witnesses. So don't try to cut them off, particularly if they're giving an answer that you feel will damage you. The best thing to avoid damaging answers to is to adopt a technique that doesn't encourage wide ranging or long winded answers. So we say use leading and closed ended questions, things that have a yes or no answer or as narrow a scope. So not what did you do yesterday, but more at four o'clock PM, you'd sent this email which showed that you are at such and such, hadn't you? So that you focus on a narrow answer. Keep the question simple. Usually, generally get going with uncontroversial matters so that the witness has to agree. And one of the, the classic instances of, of trying to trap them is to you have four or five questions. So they agree. Well, if this concept was right, then it must be the following concept was right, then the third concept and then finally, they've got no way nowhere to go when you hit them with the final document to the final point. And if they do try to bluster out of that, that of itself will make them seem unconvincing. J.P. has already touched on controlling the cadence and speed of the questions. And that also includes giving them a chance to respond fairly because as, as J.P. touched on the concern of tribunals from different contexts and different experiences and different legal cultures, they will sometimes look askance if you are too abrupt with a witness or you don't give them a chance to respond to a question. After all, it's got to be a two way street. Keep up your eye contact with the tribunal so that you can see that they're coming along on your journey. Um and sometimes be flexible. So if you haven't got an answer you want in a particular way, you may need to come back to it in order to ensure that you have got the point out. But that's really what we're talking about control is to make sure that they're not given a chance to ramble on in a freestyle. There are some very limited examples where you've got a witness is garrulous and you know, or you, you think from how things have been going, that they might get themselves into trouble by talking too much, you know, by undermining um some of the the narrowly constructed legal arguments they have been given so it can assist your case to let them speak at a certain point. But you need to um you need to be sensitive about that and that's got to be in the right situation because generally I think control is the key.
J.P.: Yeah, I agree and you raise excellent points Raj and part of that control is listening to the answers that they give, right? And you, you mentioned that, but when a witness gives an answer that you may or may not expect that can open any number of new questions, it could really be problematic for them. And if you know your case and you thoroughly prepared, that becomes very obvious, but it is very, very important in that case to listen and to actively listen. Um It's amazing how often, how often times parties are ticking boxes um asking questions, not, not listening to the answer and then just moving on. And you're thinking as the tribunal member, wow, there are 10 questions. I would have loved to hear the answer to there. Um And in international arbitration, unlike some courts, it is likely that the tribunal may circle back and ask those things and if you have not asked them the way that you want to, you may not get the answers that you were hoping for. Um So really, really important and that is a big, big part of controlling the witness. There is no better way to really, really, really control a witness than to take what they've just said and follow through on it. It creates a connection with them. Um It controls the cadence of things and it allows you to be in charge as Raj said, of the questions are being asked. So do actively listen. And you know, Raj's point about keeping eye contact with the tribunal is a great one. You need to be following through to see what the tribunal, how the tribunal is reacting. But in the same token, make sure you're keeping that contact with the witness as well. You know, it's a very basic animalistic dominance thing. But looking someone in the eye while you're questioning them can truly, truly help you control how the questioning goes and how the answers go. Now, Raj, you talked a bit about being respectful. Can you just explain that a bit further. I think that's a really a really critical point.
Raj: Yeah. Uh, the tribunal or a court in, in a complex commercial dispute is really there to get to a fair outcome, to get to the answer as efficiently as it can. Right. It's, it's a commercial, practical exercise. Expensive, sometimes long winded. But that's what they're trying to do. And they don't need grandstanding and they generally don't like disrespectful questioners and they don't like grandstanding council either. Disrespectful questions were counselors rude to a witness can make it harder to control the witness because they may have an emotional reaction to it and really sidetrack the entire process. Uh And it can also break the flow of what you were getting to with your transcript. We talked earlier about building up questions and trapping witnesses. But if you have gone too hard on something, then that can break it all up and, and worst of all, if you get told off by the tribunal that's on the transcript that you know, that doesn't look professional and it isn't helping your cause or the client's cause. And I, and I think J.P., this is one of the things you, you'd picked up before when we were having the discussion, it conveys your weakness to the tribunal as council. It undermines your position because the tribunals, I'm thinking, why is this guy playing tricks rather than just getting on with it and helping us get to the bottom of this problem and just take a step back. If the questioner asks a series of questions without really paying attention, you're rattling through it. If the questioner plainly hasn't got control of a witness or is rambling a bit, that makes me as a tribunal member or a judge lose faith in the questioner. And it's a real show of confidence from your advocate where they ask fewer questions are more incisive. Don't ramble. They're clean and when they hear their answers or if they get a good answer for them, they're not fist pumping or looking back at their team or looking triumphant, they just carry on and equally and we've all had this, you ask a question, you get a bad answer for your side. You know, the witnesses, you has got a better position and, and gives a good answer that hurts your case. Then you've gotta shut that down politely and quickly and move on without grimacing and, um, you know, smashing the desk or something, you've just gotta be grown up and move on and be professional. But all of these are things that, uh, are important for the advocate and when you're a client, you've gotta see that from your advocate.
J.P.: Yeah, I agree. And I think one, you know, one thing about that, that I would simply add because I think it is, it, it's an excellent point is you do again need to understand the cultural differences. So, for instance, as Raj said earlier, there's a notion under English law of putting it to the witness when you're accusing them of fraud or lying in US practice, that is the exact opposite of what you would do. Um You take the witness directly to the edge and you stop right there in English practice, you do have this notion of saying, well, I submit to you, sir, you're lying about XY and Z or it can be done that way. It doesn't have to be done that way. But you do need to understand your tribunal again because if that's done improperly, if that's done in a manner that seems disrespectful to the tribunal, not only can it be ham handed um but it can be highly, highly damaging. Um conversely if you've not done that in a way that it's expected by the tribunal that can come off as weak as well. So those are all, you know, we could, we could go on for hours because luckily Raj is a highly, highly, highly experienced counsel. But I think it's useful now to move on to effective tactics with experts. You touched earlier, Raj on the difference between cross-examining fact witnesses and cross-examining experts. Perhaps you could just talk a bit about how you effectively cross an expert when you're posed with that challenge.
Raj: Sure. So we talked about fact witnesses being there to tell their stories, an expert will generally be there to deal with. Uh something specialist and technical such as um working standards in a given industry, perhaps a valuation of a shareholding or a business for the purposes of future business claims, lost profits and so on. Generally, they have no skin in the game. You expect them to be independent and they're there notionally to help the tribunal. Though of course, each side generally has their own expert. So they give a professional opinion based on material they've had provided them. So the key areas of attack think are usually threefold. Firstly, expertise and competence, are they actually experts in the field? Second methodology. So have they used the up to date methodology for evaluation the right um comparators and so on for a particular sector, have they drilled down into all of that detail properly? Thirdly uh their attention to detail and the material have they taken into account everything that's important in, in in the material? And then I think there's also a final sort of step back when you're looking at an expert is looking in the round. Is their outcome reasonable in a case where an infrastructure project never, never got built. Is it reasonable for them to say there would have been $7 billion of damages if this had been built so on and so forth. Um And I mentioned that we expect experts to be independent but sometimes they cross the line and they'll go into fight for, for the party that appointed them uh and if an expert is partisan, then you can point that out. But you do that by showing generally how unreasonable and how, how on every or on a majority of options, they've already always taken the one that's favorable to their client. Now so the main challenge when you're cross-examining an expert is that they're experts in that field and you're not. So you need to prepare with as much care as you would for any other witness. But also rely on your own expert from the outset to assist in developing the questions. And then most importantly, knowing what your follow-ups are. So it's almost like a flow chart or decision tree. If X then you go to this question, if Y then you go to the next question. And in some instances, you really have to delve into the detail. When I've cross examined um on financial models, often you have to get your expert to teach you how the spreadsheet was set up to go into the cells to show where the formula were wrong, to show where something was hard coded where it shouldn't have been. And often you need to have a few practice runs to ensure you get it right and then do it clearly and effectively because just as with your fact witnesses, you've got to bring the tribunal along with you on an expert witness. And often times a court or tribunal may not be the most technically minded. So then you've got to pitch it at the right level and take them to what you need to so that they can see it and understand the point that you're trying to make. For me, it's the same. Therefore, building blocks as with the fact witness be methodical. Keep it simple and ensure those building blocks are clear as you go through the cross examination. And uh finally, when you're preparing that cross-examination, again, often you're facing very thick reports with lots of appendices and schedules. You've got to ensure you've got the key points because that's really what's gonna get you home. You're not gonna be able to address 100 points in half a day. So make sure you know what the key points are on, methodology, expertise, so on and so forth. And that's in my experience is gonna get you the best outcomes.
J.P.: Those are excellent points, Raj. And I think if I could just add one personal insight is don't quibble with experts. Um It is when you're, when you're cross examining an expert witness, you need to be highly selective about what you're going to cross upon and you need to be extremely careful about not getting sucked into an argument with an expert about their area of expertise because you will invariably lose that argument. Um It's very apparent to tribunals when that occurs. Well, this is great Raj. Thank you so much for all your valuable insight. I think we actually probably have enough material that we could come back and do a follow on one with a few more, a few more additional points. So we will certainly, I reserve my right to call you back as I, as I would like to say, well, good. Well, that concludes our discussion of effective cross-examination and international arbitration. I want to thank our guest, Raj Pillai for his really invaluable insights and his helpful comments. And I want to thank you for listening. Please do tune in to our, to our podcast and we look forward to having you um having you back Raj in the future to continue talking about this really critical subject.
Raj: Thanks very much J.P.
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In this edition of ‘Spotlight on…’, Gautam Bhattacharyya is joined by Sudhir Mishra, founder and managing partner of Trust Legal, New Delhi, and one of India’s top environmental lawyers. Together, they dive into Sudhir’s professional journey and the figures he regards as his mentors. The conversation then turns to the changing terrains of environmental arbitration, the contrasts between this and commercial arbitration, and Sudhir’s hopes for the role of dispute resolution in environmental matters.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes. We share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers and with that, let's get started.
Gautam: Hello, everyone and welcome back to our Arbitral Insights podcast series. And I'm delighted today to have as our guest, Sudhir Mishra, the managing partner of Trust Legal in New Delhi. Hello, Sudhir.
Sudhir: Good afternoon Gautam. Very grateful for this opportunity and I really look forward to discussing with you.
Gautam: Well, it's wonderful to have you and I'm delighted that you accepted our invitation to be on this podcast. I've been wanting to do a podcast with you for a long time and for many reasons. But there's one major reason and that is that you amongst other things, have a great reputation and specialism in environmental law and you are very well regarded and rightly so well regarded. One of the foremost experts on Indian environmental law and you have a great affinity for this area. And I, and in the course of this discussion today, I would like to uh engage with you in a discussion around how arbitration and environmental law meet and what the future is for the resolution of environmental law disputes by arbitration. And we'll talk about that and about a number of other things. But before I do all of that about environmental law, just a quick few words about you, for our listeners. For those of our listeners who don't know you or haven't come across you before. Sudhir, apart from being a wonderful person, and I must say that is his greatest attribute in my view. He's a wonderful human being. He's also a wonderful lawyer and his firm Trust Legal uh has a number of very, very good specialisms uh including dispute resolution of many kinds, but also environmental law. And one thing that we're not going to talk about in this podcast with regret is that also it's a very well regarded firm in the area of media and entertainment law. But uh but we are going to be focusing on some other areas today with Sudhir because in fact, I could do a whole series of podcasts with Sudhir. We, we could do the Sudhir Mishra podcast series. Such is the range of issues which he could talk about, but Sudhir set up Trust Legal many years ago and it's now rightly a very well respected firm in India and Sudhir, as I mentioned, is an expert amongst other things in environmental law. Uh So it really is wonderful to have you with us on this podcast. Sudhir. Let me, first of all, ask you a little bit about your background if you could tell our listeners because it's always interesting to, to know how things began because things always begin from somewhere. And I know a lot about you myself, but I want the listeners to know a little bit about your backstory. So a little bit about your background and how you found the law or indeed, how the law found you. So I'll hand over to you Sudhir.
Sudhir: So Gautam, thanks again. And while you are the toast of this entire country in India, because of what you have achieved in last many decades, and more specifically in last 3 to 4 months with regard to the large public sector Indian banks. And it's in a rare honor for me to come on this podcast. My journey is very different, very different journey than a usual lawyer. Law was not my first choice of career. I come from eastern UP part of the country which is very poor. My entire education happened in villages and most of the time under the trees and if the rains will come, we'll go back home. I have come from that background and I was preparing for civil services because my father was very keen. In India thanks to Great Britain, we have a Indian administrative service, which was the steel frame even during the East India company and the British Raj. And it continues to be a very important service in India which binds the country and administration is run through the civil services. So I was preparing for it and I wrote a very important interview of it in 1998 when I was supposed to clear the civil services, that was my fourth attempt and the last attempt as provided under the scheme of this competition. And I didn't clear it. And the best part is I didn't clear it more than 1 million people appear for this exam. I had come in last 1000 people for the interview and I didn't clear it and the reason why I didn't clear it was that my marks were very bad in the law paper. And I came as a reluctant lawyer, a graduate from Delhi University Law as a legal professional. But what I found that there were very few law firms and there were virtually no opportunity to join any one of them because my marks were not great and my class 10th and 12th and graduation was not very inspiring despite the fact that I was into it for civil services. So I had a deep interest in the environment right from my law school days. And one reason was we had a very robust Environmental Law Society in Campus Law Center in Delhi University. And I was somehow associated with that. And I was the Secretary of the Environmental Law Society. I used to invite people like Maneka Gandhi to come and speak in the law faculty. And that became my first calling. So I realized that if I'm not able to join any established chamber or a law firm, why not I specialize in environmental law? And the initial practice was advising various NGOs how to oppose the bail applications of a poacher or a wildlife criminal or a trader, which was a very difficult thing because you are assisting the public prosecutor and you are basically creating problems for the defense. And that was something which nobody wanted to do because it was very risky, time consuming and you had to go and be in the trial court. The long and short is that from 1999 right up to 2008 and 9, I was primarily doing environment, forest and wildlife. And the practice was actually growing in front of my eyes while the Supreme Court of the country at that time had a forest bench and that forest bench used to assemble every Friday and lawyer of the nature of Harish Salve was the amicus in that forest bench. He was devoting an entire Friday afternoon with the King's Council in the United Kingdom now. On forest matters where only issues affecting forest, wildlife, biodiversity, wetlands will be discussed and more than 40 to 45 public interest litigations I was doing which are class action suits. They are called in United Kingdom, other jurisdictions. And I used to travel across the country for different wildlife matters, whether it's opposing a bail application of a poacher or a trader appearing in a class action suit on the issue of wildlife or a critical biodiversity area or a critical wetland which has to be protected. And these issues used to pay you very nominal fee. But I had the opportunity to see a practice being created. A turning point came in 2005 in fact. When I was taken in International Visitors Leadership program of the U.S. government, which is under the Full Bright Act. And I was sent to United States and I traveled to different cities across the United States and we were put in important forest areas. And one of the change of heart was when I was sent to a place called Okefenokee Wildlife Refuge in Florida. Now, that's a very interesting place and I can never forget it's more than 18 years now. So that was the place where Dupont had actually done lot of environmental issues were there and they were part of the restoration plan. So one of the things which they said, they said we not only restore, we'll make it a state of art, nature conservation place. And they did change that entire area. And they made it such a place of conservation that on private side, perhaps the best private forest, best laboratories best in house scientists were found in Okefenokee Wildlife Refuge. And that was the opening of the eyes. I realize that in India, primarily we have two pole positions. Either you allow a project which is for infrastructure purposes or you go and file a class action suit. There is no meeting of the mind and that was the time Gautam, you know that there were no talks of climate resilience ESG SDG goals. It was not even - there was not the word sustainability. So I thought that you need a more rounded legal practice to address the issues of the climate. And then Trust Legal was born and we became quite mainstream.
Gautam: Well, and you certainly and that's a wonderful story. And uh you know how you got to where you got to and how your interest developed in environmental law. And it's amazing, isn't it some of these things that happen in our careers? They happen often by accident and then we and then we jump on them. I should have mentioned in my, in my, in my introduction also that your expertise has now meant that it's not just you being recognized in India, you are also a Door Tenant at No5 Barristers Chambers in London, which again shows your international expertise. And but let, but let me ask you this because we all need mentors and inspirations in our career and in our lives, quite frankly, if you look at your progression from that boy in UP who was learning from under the trees to now the international jet setting lawyer, which you are, can you, can you tell us a little bit about some of those mentors, some of those inspirations in your career so far?
Sudhir: Yeah. Gautam, my father had a huge impact and I have heard from you also. And when we, whenever we met and we have talked, we talked about parents. And I never actually told you this part that my father believed in my capabilities more than me. He is no longer in this world. And he always used to be super confident about law as a second career. Of course, he wanted me to become a civil servant and I was totally against doing law. I wanted to major in history and teach in a college. But he was so adamant sometimes whether whichever country we live in, we don't understand that the parents are the actual living gods, whatever religion you follow, whichever place you stay and they know something which you realize after 30-40 years. So he compelled me to take law as a course after my graduation where I taught my college in history. And I was very convinced I'll be a great historian. I had no major interest in anything whether it's civil services, but I had a great interest in history and Gautam, you'll be very happy to know even now my writings in Hindustan Times or my podcast in history is more popular than my Sudhir Mishra show for Law.
Gautam: That's, that's destiny.
Sudhir: I have no time for that and I always find time to do more in more work on history. So when I didn't clear the IS interview in India, there is a movie which has come last month, which is called 12th Fail. It's about a aspirant who after a lot of difficulties finally clears the civil service exams. It's a monumental loss if you face a competition, which 1 million people are writing and you are in last 1000 people and you don't clear it. It's like India losing the World Cup in the finals with Australia. So my father sent a telegram to my local guardian in Delhi. I was not talking to him. There were no mobile phones. Thankfully at that time, he said my son will become a successful lawyer and I guarantee him tell him to call me and talk to me. And then he convinced me. Once we talk that you take it in writing, you'll be very successful. I had no idea what he was talking. So he was my first mentor and rest is I will actually say that my, one of the few mentors was who actually introduced and got me in the baby steps in the legal profession was Mr. Parag Tripathi. And how I started with him I actually got few of the litigations with him when he became a senior advocate in Delhi 99. And he needed a competent junior attorney who can take over the role of advocate on record and Gautam, they were arbitration matters and they became very high stake arbitration matters. They had no connection with environmental law while I was regularly going to the trial courts trying to find some work to have daily standard of living. And I used to do work for the NGOS. I was also working on some very high pitch energy arbitrations which were where I was representing Power Grid Corporation of India Limited, which was newly bifurcated from National Thermal Power Company. And I was assisting Parag Tripathi And then I learned the entire aspects of arbitration with him and he was a great mentor. He gave me the confidence I was making mistakes, but he was very, very large hearted. My other mentor I would say was my friend and those are the people I will never forget Sridhar Potaraju, one of the lawyers I respect. We both were learning together. We were classmates and roommates. We were learning from our mistakes and we were having the courage to reject the easy options. Like he was working in a larger law firm at that time. And one fine morning, he decided to get independent and he's in line to become a senior advocate. Now you're doing very well. So my mentors were very unusual people. I never had the luxury of a top class senior working under him or even joining a large law firm even till now, of course, now the issue is very different that for last 2-3 years, virtually every major law firm uh wants me in some way, either through a module or through in any other capacity and it has all changed.
Gautam: Well, yeah, I mean, and, and that doesn't surprise me at all. Sudhir. And, and you know, you know, that talk about your inspirations is inspiring because we all need that and we need people to believe in us. And I'm so glad that people believed in you and, and you know, look like so many things that our parents say they come true and your dad did say that uh my son will be a successful lawyer and you certainly have become one. So um you know, so that's a very, very powerful story. Thank you for sharing that. Now let me turn to environmental law as a subject matter. I mean, as you rightly said a bit earlier on in this podcast, when you got into the area ESG was not on people's radar. Climate change wasn't really on the radar. The amount of coverage we get in the media about climate, environmental issues was not there. Now we get a lot of it. And rightly so because it's a very, very important issue and the environment is something that rightly has a lot more focus on it. When we think about the resolution of disputes involving environmental law. One of the developing trends is obviously how can these disputes of whatever kind be resolved in the best way? And inevitably, a lot of discussion is about the role of international arbitration and arbitration as a mechanism for resolving environmental related disputes. I wonder if you could share with us your thoughts on on is it a realistic objective that arbitration can be an effective tool for resolving and environmental disputes? And, and if so, why do we have enough people who are knowledgeable enough about the issues to be arbitrators in the field? I wonder if you could just share some of your thoughts on that, please. Thank you.
Sudhir: So Gautam before that allow me to tell you the journey of environmental lawyering in general for India, I would say India journey is my journey because most of the work on environmental law across the world, even if people feel that certain European jurisdictions were quicker and faster. In 1990s, the entire world actually started working towards 1994-95 and it continues. India became very conscious of its environmental damages after the 1985 Bhopal gas tragedy. And we had a lot of legislations which happened but our Supreme Court when they created a dedicated forest bench in 2002 and just see with the they are starting a forest bench and my starting environmental career, it happened parallel. So I got benefited out of the kind of opportunities which were happening in this country. Virtually more than 10 high courts, we're dealing with environment, forest, wetlands, climate change, wildlife issues, elephant corridors, tiger population matters. And there was a climate which was happening in India. There was a climate of those litigation which was happening in the U.S. There are a lot of cross border cooperation happening. Judges were interacting very freely and judicial academies were collaborating with each other. And I was part of that exchange program and I was seeing it actually from my own eyes, how U.S. Fish and Wildlife Service is cooperating with Indian forest environment. And it had a huge impact. India had a forest score of 9%. And today we have a forest score of 17% because much of it has happened. Despite our population and the geographical limitation, India has managed to save its tiger, its elephants, its wild population hunting is completely banned in India. And much of this has happened because of judicial activism on the environmental side. What was really bothering me since 2008-9 when I became more central about the environmental law and I became, you can say from more left to most central, I won't say more right because I'm still more central. I'll always think about the air pollution first before about a Catholic convector. So I would say that 2010 onwards, I was wondering what kind of planet you will save if you're not engaged with the companies, if you not talk to the corporate houses or you will not understand their contractual obligations, how will you resolve an environmental damage issue? And even if you're going as a nongovernmental organization against a company or against the government in an environmental court, like National Green Tribunal in India or maybe in some court against the automobile company in France or Germany. How will you take care of the community issues? And how will you expect the company to understand all those community issues? So I'll say the robustness in this entire understanding started happening post 2012-13 when ESG and the SDG goals came into being for the whole world. Now, if you see that's a movement which is going on for last 10 years now and it is going to do wonders. No, if we understand that first, then we'll understand the contractual part of it which are normally going to arbitrations. So what is happening now? 1000 plus companies which are now being directed by SBI, which is the securities exchange board of India and equivalent across the world. Every country, their top companies have to be ESG compliant. They need to have responsible green boards, their term sheets and their lendings have to have green commitments and green pledges. Now this is the background, new age arbitrations are happening. Now, what is the arbitration's main sector today? Construction industry, infrastructure, energy, oil and gas. These are the four major sectors for large commercial arbitration. Now, if you see all of them have some issue of the environment, water, air or some kind of forest or some kind of interface with the ecological issue. So you need the pollution expert, you need the social scientist, you need the the flora expert, you need the forest survey of India maps. You need the entire species understanding how they roam around, which are the go areas, which are the no go area. You are doing a contract with the government agency that I will go and mine in this particular area and your forest clearances have not come on time and tomorrow you're suing another company in an arbitration. Now you had no understanding of the entire environmental dimensions. So you need to now understand those environmental dimensions. That's the first part. The second part is which I'm learning right now. I was an expert witness in one of the initial environmental arbitrations, which was the oil and gas sector arbitration. And I realized that the insurance company was being sued for environmental damages. And I understood the importance of clear understanding of the environmental periphery. Now in London, we are having this Chancery Lane project Gautam. You would be aware about it where commercial contracts are having a specific environmental words and the environmental commitments as per the CUP commitments and those will be decided in your claim and counter claims and the expert evidence will be laid on them.
Gautam: Yeah. Ab absolutely. There's been a lot of development as, as you rightly say, and this is a really, it's been an interesting trend, you know, but do you think that there are enough people who are specialist in the area who could act as arbitrators in this field? Because one of the things is if you compare commercial arbitrations of one kind or the other, be it contractual disputes, JV, disputes, manufacturing disputes, pharmaceutical disputes, whatever you want to say, most arbitrators doing that sort of work would likely be able to say, yeah, I can do that. But environmental law and climate change, you know, and you know, the whole area like that is quite specialist. Do you think there are realistically there are enough people around who could act as arbitrators to ensure that arbitration has the best chance of success as the dispute resolution mechanism for these sorts of issues?
Sudhir: No, Gautam, I feel that we are in a very early stages and I compliment you for even suggesting me to blend my environmental expertise with the entire arbitration scene and I'll talk more about it. But you know, we are presently dealing with a very large oil and gas issue in India. During the pandemic. there was a gas accident where gas came out and people went right up to Supreme Court under Article 32 of the Constitution, Supreme Court was very much inclined to award a very large compensation. Long and short is for three years we kept on fighting and the way we fought was also something it's for every litigator. Uh He should understand what we try doing. We try to basically create a parallel narrative which is what people can't do unless you have a huge environmental expertise. So the court was going with the experts like they had appointed a committee. So the experts were relying on a particular set of maps. I started first demolishing those things only. I said these maps are not by the accredited agency which can prepare the forest survey of India maps. They are from the Google and other places which are not actually that authentic. Then when you talk about restoration of that area, I said already so much has been restored. Now, if I say I'm for the for the company which is supposed to have committed a wrong. So I got a Nobel Prize awarded consulting organization like the Energy Research Institute and they said that look your soil is better, your agriculture is back, your livestock is better, the human health is better and all those reports, we are much better than what the Supreme Court Committee was actually able to put it together and you imagine the consequences. So that's one part. Now, that particular company has initiated the arbitration against a contractor who was in charge of that entire. Now, if the arbitration has to be now fought, it's a large arbitration, what will, what will be the claim issues? What are, what all will be the heads of clean there will be again, the same restoration which will be talked about the ecological issue, the damage to the wildlife damage to the soil. So who will give those expert advice if you know in India, I don't know about UK, in India. If you're doing an infrastructure, large claim petition for a large public sector undertaking, at least some of my partners were telling me that the client comes with an expert. He says I have got an ex-head of their arbitration division who is now in his private capacity will prepare the claim petition. That is what you were saying that they have that expertise,
Gautam: Absolutely.
Sudhir: Who is that? Who is going to do that part if you have an ecological coloring of the entire commercial dispute. So there is a huge lack of lack of expertise. I think we need a complete different kind of mentoring where we need new crop of arbitrators, who will be the green arbitrators who will have a background in biodiversity, social sciences. Like one very important aspect, Gautam, which is often missed even in mainstream commercial arbitrations because I was representing POSCO in the entire National Green Terminal issue when they're being challenged, that you can't set up the project or the large work which happened on Vedanta in India when they had certain problems which they faced in Orissa. No. What was the biggest factor which became the detrimental factor, the social factor. So when you are talking about environmental expert, I think arbitration proceedings which have environmental dimensions also need social scientists who know which are the go areas if a particular pipeline is going, whether it can go through a particular village or a particular secret place, because those are the people who go and convince those communities that you have to allow this thing. So we need very different kind of skill sets for New Age green arbitrations.
Gautam: Yeah, I, I agree with you in short. I think it's uh it's too important and too specialist an area to not have it. So, but, but look, thank you for sharing those great thoughts and uh it's particularly great to hear that from someone like you who really knows this area who lives and breathes this area. And I think it's the first time for sure, in this podcast series, we've ever had anyone with this level of expertise in this area. And we wanted to highlight this whole area of environmental and climate and the interlink with arbitration. So thank you so much for your wonderful thoughts there. Now, as we draw to the to the close of this podcast, Sudhir, we always love to have some more lighthearted conversation because it because, and actually this segment is very popular with our listeners. They like to get a feel for our podcast guests and they've already got the feel of your legal expertise. But let me ask you some more lighthearted things. You're a very busy man. You've got, um, you know, your children to keep you busy. What are your favorite hobbies when you have time to indulge in your hobbies?
Sudhir: It keeps on changing. My favorite hobby is actually to think about food. I'm a foodie. I get up in the morning. You want me to be candid. And I still remember - I do my show and I had Priti Adanii who is, who called just last week. We were talking about you and she said he is my God brother and she said about you. So she said, can I ask few questions to you? And she asked almost on the same lines. So I am not prepared for real questions. So I'm a foodie. I think about food if I travel to London and if I'm in the flight, if I come out of the Heathrow, my first thought is to go to a particular place where I get the best Turkish food. So that plays in my mind. Movies have a huge, huge place in my mind. I, I love movies and there was a time when I used to watch all the movies on first day, first show. And so when I meet people who say I'm homesick and I have left my home and I have come to Delhi or I have come to any other place when I came to Delhi, leaving my rural background, I, I never had enough money to eat well or something, but I used to save money and feel very, very happy that I can watch a movie and without being accountable to my father who was quite against watching movies all the time. So I remain a movie buff and I drag people also for all kind of movies. For me, the definition of a good movie is that either it will be a good movie or very good movie.
Gautam: I love that. I love that classification. It's a superb classification. You know, it reminds me of that uh superb lyric. I'm going to sort of slightly adjust the lyric from James Brown who said, “I don't mind what you play as long as it's funky.” Um So, so, so, so that's, that's very, that's very, very good. And then let me ask you, I, well, since I talked about music, let my final question to you on this podcast. Be about music. OK. Do you have any favorite music or any particular groups or singers that you really enjoy listening to?
Sudhir: I listen to Nusrat Fateh Khan every day and Gautam, I listened to him because he's less a musician. He's more a Sufi saint and he was born in Pakistan and he is part of a Ganga Jamuni Tehzeeb and he's part of the uh I would say inclusive culture, which this entire subcontinent should have and which it had like in his music in his Qawwali's. you will also have the mention of Krishna. You will also will have mention of many other things which are very Indian. And I find a great resonance with the entire aspect and I find it a therapy like one of his very famous music and I encourage you to listen to it. Anybody can understand Tum Ek Gorakhdhanda Ho like He questions God for 21 minutes in this Qawwali. And he said that you say you are everywhere still, you can't be seen anywhere. So what is this contradiction? And what exactly is your entire game? So in that 21 minutes, he keep on asking God and keep on saying something sarcastic. They say so I'm a huge fan of Nusrat Fateh Ali Khan.
Gautam: Well, and you know, he's a fantastic, well, he's more than a musician. He's actually I think he, he tells stories as you rightly say and, and as you mentioned, a very interesting point, he transcends communities and he really brings diversity. In fact, you know, just what you said has just reminded me, in fact, has reminded me of something. And I'm going to ask you one final quick question actually. But let me first will tell you what you of what you said. Just reminded me as, as a young boy. I remember watching the wonderful film, Amar Akbar Anthony, in one of the classics. And there's a lovely scene in that film where the character being played by Rishi Kapoor who was playing Akbar was singing a devotional song to a Hindu deity, but he was playing a Muslim character. And it's, and it was a very uh it just, it, and that, that song has always been one of my favorite from any Indian film, not just because of its significance, but because of the diversity it showed. Um So that was one and I'm sure you know exactly the song that I'm talking about. So, so now let me ask you one final question because I can't resist because you are an international man. Is there one particular place apart from India that you love to travel to or around?
Sudhir: But you will have to allow me to say one place in India also.
Gautam: of course, please do, please do it. It's, it's your prerogative.
Sudhir: In India, in India. One place where I always love to go and I never liked it when I was growing up is my place of birth, Banaras, Varanasi the sacred city of India. And I managed to go there every two months or three months. If I'm in the country and internationally, it has always been London. For last 22 years I have been going there. There is no other place if I have any wish. If, if I can travel any time of the year and anything which I read about London also excites me and like I was, I was curious to find out that it was in the number grade in LCIA and Singapore International Arbitration Center. How far behind is that? I was talking to a few large law firm partners who had and for me, London is very close to my heart. I love everything about it. The kind of inclusive culture or the vibrancy it has and the depth of democracy it breeds is something which takes my breath away.
Gautam: Well, thank you. And on that lovely note, I want to thank you very much Sudhir for being such a wonderful guest. I've loved the conversation with you. Of course, I've had the great privilege of knowing you for a long time, but doing a podcast with someone is an, is an extremely enjoyable experience and this has been a great one for me. So thank you and I know that our listeners are going to enjoy it too. So once again, thank you Sudhir and I look forward to seeing you in person very soon.
Sudhir: Thank you, Gautam. It's a pleasure.
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Distinguished Malaysian lawyer and full-time international arbitrator Sitpah Selvaratnam is our guest for this episode of ‘Spotlight on …’ Host Gautam Bhattacharyya takes us on a journey through Sitpah’s remarkable career, discussing the focus of her practice and the attributes she believes are necessary for anyone aspiring to become an arbitrator. The conversation then explores diversity, equity, and inclusion within the legal profession – pertinent given Sitpah’s role as co-chair of the Asia Pacific chapter of the Equal Representation in Arbitration pledge.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Gautam: Hello and welcome back to our Arbitral Insights podcast series. And I'm delighted that in this edition we have as our guest, Sitpah Selvaratnam. Hello, Sitpah.
Sitpah: Hi Gautam. Thank you for having me on your podcast. I'm delighted to be here.
Gautam: Well, I'm delighted that you're on this podcast. I've been wanting to do a podcast with you for a long, long time and it's, it's wonderful that we've got this opportunity and I know that our listeners will thoroughly enjoy your thoughts and discussions on the points that we're going to be talking about. Now, I will first will introduce you because some of our listeners may not be familiar with you, but you are put it this way, a real force of nature and you are an incredibly impressive lawyer and arbitrator. So um I, I could actually spend the whole half hour talking about your antecedents, but I will have to keep this uh summary short about your profile. So, Sitpah is one of the leading lawyers in Malaysia. Um She's been practicing there for over 30 years. She was called to the Malaysian Bar in 1990 having studied over here in the UK. Yeah, and I'm sure we'll come back to that Sitpah over the course of our discussion, and she, she commenced her practice in Malaysia at one of the largest firms in Malaysia and then was a founding partner of the very excellent firm of Tommy Thomas, uh where she recently has just left. So she's just left that firm to set up practice as a full time arbitrator. And we'll be discussing that in the course of this podcast. Sit is a very highly ranked lawyer in a number of areas amongst other things. Apart from her commercial practice, she has a very, very well regarded maritime practice and that has always been one of her big specialisms as well as commercial arbitration and litigation. So it's a real honor to be doing this podcast with you Sitpah and I'm really looking forward to our discussions today.
Sitpah: Gautam, you are just too kind. It's so lovely to be here chatting with you. So I hope this is of interest to your listeners.
Gautam: It will undoubtedly be. And I, I want to start with this question, what drew you to law as a career in the first place right now?
Sitpah: So it was accidental, as much as it was a process of elimination. I come from a rather conservative family out here in Malaysia, of Sri Lankan descent. And so my father was only about to fund my education in the UK if I did a profession. And so the law and being a lawyer seemed least worse. And that's how I ended up in, in Cardiff reading law and then in Cambridge to do my master's and the rest is history.
Gautam: Well, thank goodness you chose the law because you made good history in the course of everything. So, you know, so, yeah, so you studied in, uh uh in Cardiff and in Cambridge. So tell us your thoughts about your time over here?
Sitpah: Oh, I, it, it still stands out as probably one of the best times of my life. Um, you know, I, I was, uh totally innocent, knew, not knew, not what to expect from the UK. And it just blew my mind, uh, the thinking, the exchanges, uh the freedom of expression, the variety of people I met. And so it was the most liberating experience I had and made me completely come into my home. And of course, it helped that law came naturally to me. So I was acing it and that of course, makes a whole lot of difference to how you experience the place. And London and UK remain such a favorite spot for me.
Gautam: Well, we look forward to seeing you back here very soon and I'm sure you've still got lots and lots of friends over here in the UK, as well as your professional friends and you know, many personal friends from your time here. So, you know, one of the things that, that we all benefit from in the course of our career are our mentors and inspirations. And I wonder if you could share with us your thoughts as to who in your professional journey so far have been your most important mentors and inspirations.
Sitpah: Right, I was fortunate. I certainly will point to Tommy Thomas as my significant mentor, especially in the early days. He was my, one of my reporting partners. Uh And then we, of course, as you mentioned, set out a boutique firm together. And so for the uh early formative years, my practice, it was his work ethic uh that really was great to emulate. He worked hard, he played hard, his drafting precision, his commitment to preparation in court were just outstanding. Um And so those were good habits that I inculcated. But above all of that, I would say what inspired me most about Tommy Thomas was his courage. No client was too big to lose on a point to principle and no um worthy cause was too unpopular to deserve the same amount of attention and commitment. And so these were some of the great things I learned from Tommy. As you know, I'm no more with, with Tommy. After 33 years of being together, I've just become independent. But I would also say moving in my career, my career developed and you know about my maritime passion, I studied uh maritime law in Cardiff under Professor Kent Woloder and David Glass and then in Cambridge under Francis, Professor Francis Rose and Malcolm Clark. And I was determined to, to practice maritime law in Malaysia. And this is way back in 1991 where maritime law was unheard of in Malaysia. So in many ways, I was a pioneer, the first wave of lawyers coming out. And to me as my career program, I had more challenging maritime cases. I and and the English court decisions didn't seem to sit so nicely with me. I would car the the law reports of the region and it was principally justice also James also from Australia and also Selma Reyes from Hong Kong that I admired most, especially James also in his careful fair sound judgment. And it makes so much sense to me, it it sort of prioritized maritime and insolvency for instance, um together and then decided which to precedent. It excited me so much. So I would put them there as my inspiration in a closer home. It would be also justice Belinda And and Justice Judith Prakash in Singapore, who maritime practitioners who were elevated to the bench and contributed so much. These people truly inspired me.
Gautam: Well that's a wonderful array of people and inspirations. One of the areas Sitpah that you're extremely well known for and we'll come to this in the course of our discussion in the podcast is the world of arbitration and you've now set out as a full time arbitrator and again, we'll cover that. But how did you first get into the world of arbitration? Was it as a consequence of your maritime law practice which we just were speaking about,
Sitpah: Right, Gautam. So a lot of my life, the best things happen not by design, just by providence. So I got involved in a huge bonds dispute, say 20 or 25 years ago, it had really preeminence tribunal members including Lord Millet and Gavin Griffiths and Justice Boram, and I was second chair, but I had the pleasure of appearing before truly top class international panel and it made me rook the ways in which my dispute resolution career could evolve. And so that was the first days. And around the same time I got roped into the Chartered Institute of Arbitrators Malaysian branch into the committee. Again, that went further my appetite. And next thing you know is doing my diploma in International Commercial Arbitration in Keble College, Oxford, got my first two appointments and uh it just went on from there, I just loved making decisions. And as we all know, the institutions play an enormous role in getting the first couple of appointments and uh to that to their credit the SIAC and the AIC Malaysian Center at that time known as KLRCA uh were were terrific in their support in pushing um younger arbitrators in and for my time. So this would have been 2009, 2010 for a 40 ish year old ethnic minority female to be getting appointments was really ahead of the curve already. So I was very lucky.
Gautam: Well, one of the things which um you know, is wonderful is that you are, as you said, of an ethnic origin and there aren't enough ethnically diverse arbitrators out there doing major commercial cases. So it's wonderful that you're so prominent in that regard. It's also wonderful that as a woman, you are also extremely prominent and that adds to the importance of your, of what you stand for because you are female, you're ethnically diverse. One of the things that's gradually getting better and better is that there are more and more people becoming arbitrators and gaining prominence as arbitrators who are female and are ethnically diverse. One of the things that I wanted to ask you was to share your thoughts about the whole concept of diversity, equality and inclusion because it's obviously a very important concept in many walks of life. But in the world of International Arbitration, it is getting better and better. But I wonder if you could share your thoughts as to how it can get even better.
Sitpah: Yes, I would certainly want to share with you some of my thoughts. I think we've, I'm first of all, as a firm supporter of diversity, not just of gender and ethnicity, but all forms of diversity, generational disability, sexual orientation. To me, I start from the perspective that the tribunal should be reflective of society as far as possible of course, and then you get a more wholesome complete review of the dispute from several perspectives. Um So with that in mind, of course, I appreciate ultimately, the the arbitration is the party’s process, party autonomy, but there is some amount of obligation and responsibility on all our parts to make that make the parties aware of the benefits that come from diversity. And in this regard, I think where we have parties from different geographical areas, it is imperative that the tribunal closely reflects that the what you would say, the geographical areas, the demographics of the parties so that the the dispute gets, gets to be heard in its proper context with the flavor that it deserves. So to my mind, diversity has achieved in many respects, especially with gender and more and more conversations are going on in that regard. But to me, it is also an aspect of natural justice. One thing it's good that you have a diverse panel. But it is part of allowing the parties to feel that they have been heard. And parties from different aspects from different, different areas of the world have got different understanding of words, their body language difference, it differs. So only someone exposed to British humor would understand British humor. The converse is true. You couldn't begin to understand the party's language, their body language unless there's been some exposure to that their cultural background and background is important. It forms the lens through which we perceive facts and we perceive behavior and then that goes towards findings of fact of truth. So to me, it is an aspect of natural justice. And when we say that a party must be afforded natural justice. It is not just giving equal time, but that time must be quality time where the dispute has been properly appreciated in the social cultural context. So when I advocate for diversity, I come from the perspective that it is an aspect of natural justice.
Gautam: I, I totally agree with you. And you know, and you know, those were uh you know, wonderful thoughts to hear because you know, that ability to ensure that the parties feel that they've been properly considered and all aspects of the process have worked as well as they can is very important because arbitration is a service industry and arbitrators are there to serve the parties. And so they need to be very mindful of who the parties are, what the parties expect. And as you say, what sort of reaction the arbitrators are giving to the parties in terms of how well prepared they are, how they interact with the parties, their demeanor, the sorts of questions they ask. So I, you know what, what you said was very, very interesting and really resonates with me. You know, one of the things, as I mentioned a little earlier is that after your glittering career in practice, you've now become a full time arbitrator and you will continue to do wonderfully well, Sitpah because you are an incredible name and you're a real Trailblazer. I wonder if you could share your thoughts as you know, over the years in all the arbitrations you've sat in, you've obviously gained an insight into how the process works. And I wonder if you could just share some of the um sort of lessons the perspectives that you've learned as an arbitrator because I think that would be, I think of real interest to our listeners.
Sitpah: For sure, Gautam. Um It's been a phenomenal 15 years sitting as an arbitrator and I would say I, I could put it down to two or three main lessons. Uh The main lesson is how essential it is to be clear thinking and decisive and to be able to prioritize uh parties or council submissions and to then distinguish between very closely uh competing positions which should actually uh nudge out the other. And I often find myself, you know, um standing by the window, hands in my pocket or with a cup of coffee just reflecting on this and just filtering through in a very rational manner to see who comes up uh, you know, the better comes up with a slightly better argument on that and that is with, with, with some luxury of time to reflect. But actually more than that when you're in the arbitration room and you're hearing cross examination of expert witness testifying, then that clear decision, the clear thinking also comes in to be able to decide whether that's irrelevant, that's relevant, let's stop it here to be efficient whilst being fair. So clear thinking, very decisive and that's not something everyone has is very important. And the second is something I've alluded to earlier, the importance of making parties feel that they have been heard and understood. And especially if you're going to dismiss the argument, then some part of that must be reflected in the ward so that the confidence in that whole process, the satisfaction that the parties get from the dispute resolution process is upheld and may be linked to that. I would say it is also that the impartiality of me at the arbitrator I feel strongly about must be seen, must be felt. And it comes across when I actually with my body language, when I want to hear why the witness does what the witness did so that I can appreciate that though it may not be what the law affords them, the protection they may have chosen a law that they are not familiar with, but it may have been put in there by the counter party. They have had my year to that and quite often related to that is the fact that parties are not always equally represented. And then it's finding the right balance to remain neutral and yet try as far as possible to rise the imbalance, so to speak. So I would say in short, I have learned how to be firm and yet be approachable.
Gautam: Yeah, and that's a wonderful balance. Um And I, you know, and I, you know, again, that's just music to my ears because that's, those are the sorts of things I love to see in arbitrators mix of having a personality but being a decisive mind and, and just, you know, and just being inclusive and nice to deal with and being well prepared. Like I said, these are some of the real features because in the years that I've been practicing, I think you and I have been practicing for more or less the same amount of time. I'm sure between us, we've got a lot of interesting. I'm sure we were to speak more on this. We'd have a few war stories to share. Now I want to turn to one other topic before we go to the final topic, which is, I want to ask you this arbitration is obviously now um well established as a really important dispute resolution mechanism. And um it's recognized globally as the most important way of resolving disputes, but it can obviously be made better. It's not the perfect system. So are there any thoughts you've got as to how the arbitration process can be improved so that it becomes a better form of itself?
Sitpah: Ok Gautam, I think I'm going to go out on a limb here. So um bear with me, I come from Asia. So it might not be the same experience where you sit. But let me tell you what it is, I think needs strengthening and that is the strength, strengthening of the perception of impartiality and neutrality of tribunals. And of course, diversity helps because diversity can sort of disrupt the, the, the the club, so to speak of the same people sitting as arbitrators. But why do I say this? Um Out in Asia, we have a few experiences and the appointment process to us needs to be a little bit more transparent. As it stands disclosure is still very much self regulated. The arbitrator has to make disclosure. I think even in your 1996 consultation paper, it still remains that way. And so we don't get an objective listing of firms repeat appointments, arbitrator or co arbitrators appointments. Uh And so the with the objective then being trying to trying to minimize repeat appointments or unspoken reciprocal arrangements. I feel that something needs to be done. More than that is also out in Asia is what I call the double standard syndrome. That an arbitrator can behave differently depending on his or her environment, depending on the sophistication of the seat or the parties. Do I have an answer for it? Of course not. I don't presume to know how to write this very tricky issue, but it's a real issue, but I can share what my husband and I often speak about quietly. He's also an arbitrator lawyer. And it is this, we so often speak about disgruntled parties about the manner of behavior of an arbitrator that we wonder whether a peer oversight process can be put in place. Not one that will upset the award because that award will go through the setting aside process or enforcement process. It may or may not make the mark for setting aside, but the parties may perhaps be given an opportunity to add the grievance in a peer oversight committee. And then the repercussions obviously would just before the arbitrator personally or you can be avoided to council or however you want to work it. But here we talk about the arbitrator but obviously is open to abuse and it's something perhaps either in my lifetime or after may be worthy of some thought.
Gautam: I mean, again, uh fascinating, I agree with you completely. I mean, those are incredibly perceptive comments uh which are drawn from your experience. And I think many of our listeners would also agree entirely with them. Uh, so I think you're spot on, on everything there, Sitpah unsurprisingly spot on in your observations.
Sitpah: Sadly so, right?
Gautam: Well, you know, you know, life has this habit of raising all of these issues and, uh, you know, we just have to talk about them. So I think that it's really good and, you know, thank you for raising those points with us. You know, I traditionally end these podcasts by delving into some more lighthearted conversation, you know, not law, not arbitration, not anything like that, just about the person. You know, you're an incredibly vivacious energetic dynamic person, you're very busy all the time. Uh I'm sure your diary is completely chock a block for a long time to come. But when you do get some spare time, what do you like to do in your spare time? Right.
Sitpah: So I've been told that, you know, I can't bear to see five minutes of my time, not used and therefore I would fit something into it. It's of course an exaggeration, but I am a bit of that personality. And so I have packed many, many things in my life, but I would, I suppose say two things stand out as a particular passion, which is I, I love my martial arts. So I still train in the martial arts of Aikido. And um I'm terribly pleased to have got finally after many years of training my black belt. So that's something I do at least twice a week.
Gautam: Congratulations. Wonderful.
Sitpah: And the other is I love discussing life and I do workshops with parents with young adults about living skills because thought processes, emotions just living life. So challenging is important to me. And I love seeing other perspectives for my children from other young adults, from anyone really who is willing to discuss life as it is uh with me. And that would be what I would say is my other particular interest.
Gautam: Incredible. And, and you know, I didn't know that um you had such a passion for martial arts. Uh I think it's, it's really, really wonderful to know actually, I mean, uh you know, when I see you next, I'll talk to you about that a bit more. I'd like to find out more about that because amongst other things, I think some of the most disciplined um sports people on the planet are the people who are, who are mixed martial artists because they've got to master so many skills and they've got to be on top of not just one martial art, but many martial arts and there's a lot to learn, I think from people like that. So, and then in terms of travel, um is there a particular place outside of Malaysia that you particularly enjoy traveling to? I mean, and excluding the UK okay.
Sitpah: Oh gosh, I was just going to say London’s like home. It makes me a li I feel like a student again hopping in and out of tubes when they're not on strike. Uh Yes, but no. If London is ruled out, then I would say quite a few areas. But um Bali is magical. Milford Sound, New Zealand’s South Island is just heavenly. Angkor Wat is, is mystical. So many beautiful places on this planet. But finally, we go back to India, even though I'm from Sri Lanka. Really my roots rather is from Sri Lanka. Uh We go back to India where the family comes together over the delicious food, the Bollywood, uh the, the, the resplendent clothes and the cricket. So um India is an annual model and I suppose I have to say that here.
Gautam: Well, yeah, I mean, absolutely. And you know, we're all a product of our heritage and we should be proud of our heritage and all that goes with it. Well, I will look forward to seeing you in India. Uh Yeah, at GAR in Delhi on the ninth of March. And you know, I'm sure we can, we'll have a lot more conversations there in person, but can I just say Sitpah it’s been an absolute delight to do this podcast with you. It's been thoroughly enjoyable. Thank you for being such a wonderful guest, so open and so engaging in all of your thoughts and in and in your enthusiasm for all of the topics we discussed. It's, it's, I mean, I'm sure our listeners will thoroughly enjoy this episode. So, thank you again very much. Um I wish you all continued success in your arbitrator practice and I look forward to seeing you very, very soon.
Sitpah: Thank you so much, Gautam. I look forward to India and was such a pleasure because you picked all the questions I love speaking about. So, thank you for that and we'll catch up again in New Delhi.
Gautam: Absolutely. Thank you.
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This International Women’s Day (IWD), London counsel Lucy Winnington-Ingram hosts women arbitration practitioners across Reed Smith’s global platform: Elizabeth Farrell (London), Rebeca Mosquera (New York), Juliya Arbisman (New York), Vanessa Thieffry (Paris) and Alison Eslick (Dubai) for a Q&A session exploring what this year’s IWD theme means to them.
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Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. Welcome to our Women in Arbitration podcast mini series, a platform for women's voices across the global international arbitration community. I'm Lucy Winnington-Ingram, an international arbitration lawyer based in Reed Smith's London office. In these episodes, we will hear from leading women in the international arbitration space and discuss industry news, trends, developments, and matters of interest. And with that, let's get started.
Lucy: Hello, I'm Lucy Winnington-Ingram, council at Reed Smith with a practice that focuses on investor-state arbitration and public international law. This International Women's Day, I'm delighted to be joined by women arbitration practitioners across Reed Smith's global platform to discuss this year's International Women's Day theme, Inspire Inclusion. Inspire Inclusion, focuses on encouraging others to understand and value women's inclusion. And when women themselves are inspired to be included, there's a sense of belonging, relevance and empowerment. I'll be joined by Elizabeth Farrell, Rebeca Mosquera, Juliya Arbisman, Vanessa Theiffry and Alison Eslick to hear their views on diversity, equity and inclusion in the legal profession as it pertains to women, and who has been a mentor in their careers that embodies the Inspire Inclusion theme. And my first guest on today's podcast is Elizabeth Farrell. Elizabeth is a partner in our Energy and Natural Resources Group in London. And Elizabeth's practice focuses on international arbitration in the commodities and energy sector. Hello, Elizabeth, how are you today?
Elizabeth: Hi, Lucy. I'm very well, indeed. It’s a pleasure to be speaking with you.
Lucy: Well, thank you so much for joining us. So my question for you Elizabeth is what advice would you give to young women entering the legal profession?
Elizabeth: Big question. I mean, firstly, it's a wonderful career. Just say that, I mean, it is full of endless variety and potential. So anybody considering a career in the law, I think you're on the right track. I'd also say I can only speak to this really from the perspective of somebody in an international law firm um in London specifically. And I'd say in many ways, that kind of environment is about as progressive as you can get in a modern workplace. Um full of incredibly supportive role models and leaders who want you to achieve your potential. But uh there's still you know, a significant gender disparity in senior roles. So I would say first piece of advice is stand on the shoulders of the women who have come before us and seize every opportunity that comes to you, try to see that opportunity as a privilege and know that undoubtedly, although we work incredibly hard, the harder you work, especially earlier on in the in your career, the more luck you you create for yourself, the more opportunities will come your way. And if you invest in it, your career will always be there for you, whatever else happens in your life. And so that, that hard graft in the early years, you know, really pays off.
Lucy: Thanks Elizabeth. And I, I mean, I have to agree. I've been incredibly lucky in my career to have some incredible female role models that I've sort of grown up underneath who have really taken me under their wing and helped to lift me up through the ranks. And I feel very privileged to have had that.
Elizabeth: Absolutely. And it's kind of like, it's a quote by um the very different context of a career, but a quote by Serena Williams that I really like. And she talks about the success of every woman being an inspiration to another that we should raise each other up and therefore make sure that we're very courageous, be strong and be extremely kind. And I have, you know, I think that's a really, really good sort of motto to live by as a woman in, in the legal profession. Never forget though that something I have noticed is that many men have fewer hangups than many women over pushing themselves forward. Whether it be for promotion, whether it be for a pay rise, whether it be for a type of work that they would like to be doing. So I would say to any woman starting off in their career, please just don't hold back for fear of being considered too, too difficult or too undeserving. Just go for it. All I mean, by that really is, do yourself justice, talk up your accomplishments and your vision and the way you would like your career to go in a way that that gets you recognized intentionally in, in the right way.
Lucy: I agree, Elizabeth and I think, you know, traditionally women have not maybe a not all women of course, but some women have not advocated for themselves in the way that their peers, their male peers have done. And I think increasingly there's an awareness around that. and an encouragement for young women to do that as they rise up in their careers.
Elizabeth: Exactly.
Lucy: OK, Elizabeth. Thank you very much. So, bonus question for today's episode is who has been your mentor? And why?
Elizabeth: Well, I've been lucky to have a number of people who have mentored me, coached me and perhaps more importantly, championed me, you know, I couldn't possibly pick out just one because there have been at least five and certainly two or three who will, you know, recent ones who will know very, very, very clearly who they are. I'm eternally grateful to them. And as I say, I think in many ways, having a champion who will speak up for you, you know, slam the fist on the table for you in a meeting and say no, you know, I remember her or think about what she's achieved is, is just as important as somebody you can turn to for advice in a more traditional mentoring relationship.
Lucy: I completely agree. And just to finish off, I think one thing that I would say to, you know, women coming into the profession is that those mentors, those champions can come from anywhere in the firm. You know, I actually have still have a champion who was my trainee supervisor when I was a trainee, but not in my current department. And I think that's really important to remember that as you build those relationships. Um Those can see you through your career even from very unlikely places. And my next guest on today's podcast is Rebeca Mosquera. Rebeca is a senior associate in our New York office, specializing in investment treaty arbitration. Hello, Rebeca.
Rebeca: Hi, Lucy, how are you?
Lucy: I’m very well. Thank you very much for joining me for your second International Women's Day podcast.
Rebeca: Well, thank you so much for the invitation and honestly, I wish I were in London now having tea with you during this conversation.
Lucy: Likewise, but hopefully again, soon. So Rebecca, my question for you is what are some effective strategies or practices you've seen or implemented that foster inclusivity particularly for women and underrepresented groups?
Rebeca: So, well, Lucy, this is, this is a great question because I do believe that we all have the power to affect change whether that change is positive or negative, that really depends on us. And there is no secret that there is a patent access problem for women and under represented groups in decision making positions. According to a recent women in business report by Grant Thornton women held 35% of senior management positions in North America and 28% in Europe, but only 19% in Africa in 2021. I assume that the statistics for Latin America and other parts of the world are not any better and to exemplify how acute the issue is according to other more recent reports at the current rate of progress, if if we can call it progress, it will take about 286 years for the world to achieve gender equality. Imagine what that means for underrepresented groups. I would dare say that the problem is even more acute in international arbitration. A field known to be relatively small and extremely hard to break into. Because of this I personally and through different initiatives, I belong to like ArbitralWomen, the ERA Pledge and the ERA pledge, I have implemented many strategies and practices to move the needle in the right direction because having diverse professionals is good for business. But in international arbitration, it ensures the legitimacy of the process. And so from where I sit during the constitution of the tribunal process and the potential selection of expert witnesses. I have relentlessly provided team members and clients with lists of female arbitrators and experts with the required credential. And let's just not forget that recently uh the Compendium of Unicorns was launched. So we have a global guide to women arbitrators now very handy. And among the other strategies that I try to implement, I also believe in recognizing and promoting my colleagues accomplishments, especially women, minority groups and younger professionals. And and I believe that to tackle the issue of gender and diversity in our field, women must support each other and work together. And truly, there is no room for excuses, but we also need male allies and champions, especially from those considered an authority in our field. But truly, we don't need to look too far away. Most male colleagues play a crucial role in becoming allies and champions. And Lucy, I honestly, we're not sure of tragedies uh seeking to level the playing field for women. For example, I recently came across an initiative that should be widely adopted, I believe. And I want to thank Amanda Lee for bringing it to my attention. It's from the Association for Women in Cryptocurrency. They launch a pledge for male allies, inviting them to commit to not participating in all male panels commonly referred to as manels. And the argument is that if more male colleagues agree to speak on panels, only after organizers have confirmed gender parity, we could promote greater inclusivity and visibility for women and other underrepresented groups. And one thing that I, that, that I want that, I think it's very important I want to highlight is that Reed Smith is also a signatory to many of the initiatives I mentioned earlier. And that is a testament to the firm's commitment to gender equality, diversity, equity and inclusion and to wrap it up. Lucy, I want to end quoting my favorite, late former associate justice of the Supreme Court of the United States, Ruth Bader Ginsburg or the notorious RBG as she used to be known in pop culture. She said that um well, she said many great things and the many other extraordinary things spending much of her legal career as an advocate for gender equality and women's rights winning many arguments before the Supreme Court. She said that women belong in all places where decisions are being made. This is a powerful motto to keep in mind as we all continue to advocate for more gender parity and diverse representation in our professional lives.
Lucy: Thank you very much for that very insightful answer, Rebecca. One thing you said really resonates with me and that goes to the relationship between diversity and legitimacy. Investment arbitration in particular is currently suffering from what is often referred to as a crisis of legitimacy. And it's so important that the decision makers are representatives of diverse groups and we have seen some progress towards this, but by no means enough.
Rebeca: Absolutely. I agree. And, and it is known it's been proven that when you have uh diversity at panel levels or even council, you get better decisions and you also get, you know, better arguments. I read uh recently a, an article from Lucy Greenwood and where she was precisely advocating for this, and she mentioned that they were groups separated and they needed to resolve a mystery murder and all the people that look the same and knew each other were put in a group and then in another group, they put at least one person that didn't belong or didn't look like them. In fact, they didn't know each other. So um the group where everyone looked the same and they knew each other, they were very confident about their answer. But in the end, they got the answer wrong. While the other group, when they submitted their answer, they were not completely sure, there were also more uh arguments, but in the end, they got it right. So that's something to say about the entire process of, you know, legitimize the ISDS field.
Lucy: That's really interesting. Rebecca and I wasn't aware of that. Um I'm gonna go and read that article now, after this podcast. Now, I just have one further question for you, which is a question that I'm asking to all my guests today. And that's who is a role model or mentor in your career that you feel best embodies the inspire inclusion message.
Rebeca: So choosing just one role model or mentor is difficult as I've been fortunate to have several throughout my career. However, since we've been discussing male allies, I would like to mention a few gentlemen who've been particularly inspiring in promoting inclusion and diversity. One is John Fellas, now an independent arbitrator. The other is our very own Gautam Bhattacharyya. But I also want to highlight my husband, Benjamin Malek. Without him, I will not be able to do what I do every day. And so these gentlemen talk the talk and walk the walk when it comes to inclusion and diversity. I have witnessed firsthand their unyielding commitment to gender equality and building access for underrepresented groups. And I'll tell you they are phenomenal. But most importantly, I have to mention my mother. My mother, she was not, she never graduated from university, but she relentlessly believed in education and given her kids all the tools and and access to better education and to make it happen. She never told me, Rebeca because you're a woman or because you are a Latina or Hispanic, you can't do X, Y and Z she always pushed me and, and that's why, you know, when I see all these differences or, or that there is no enough access, I think about my mother and I believe that she was very advanced or very ahead of her time when she was raising me.
Lucy: Thank you for sharing that Rebeca and you're absolutely right. Mentors can be people we work with, but they can also be people outside of work. So my next guest is also from our New York office I have with me, new joining partner Juliya Arbisman, uh who's a partner in New York and London who focuses on International Arbitration. Juliya, thank you very much for joining me today.
Juliya: Thanks Lucy. Glad to be here.
Lucy: So Juliay, my question for you is what barriers do you believe still exist for women in law? And how could we collectively work to dismantle them?
Juliya: Thanks, Lucy. Look barriers mean a lot of things obviously, I think to deconstruct it a little bit if the question is, are there sort of systemic barriers to women at law? I think for the most part, we are in a much better place than we have ever been in terms of explicit issues such as discrimination and harassment, as well as less explicit issues like unconscious bias in terms of career advancement, lack of access and cultural norms in terms of seeing uh women in those roles. All that being said, I think it's hard to ignore that there is a significant level of attrition in particular by women in law as they push towards um the more advanced stages of their career and whether that is by choice or just by circumstance, in terms of how it aligns with um their particular ambitions. I think, uh you know, that that is, that is something that, you know, there has to be more study on and um more um action around at the end of the day. I think we all humbly recognize that law is a service industry, it requires a lot of reactiveness. This, this is uh something that I think women excel at uh women excel at the multitasking and, you know, and responsibility and ownership as to what they have. And sometimes that level of responsiveness, which is implicit in our profession tends to put additional strain, I think on women, especially during, you know, mothering years and childbearing years. And I think that is a systemic issue which arises, you know, as we say, it is what it is uh in terms of the support structures um that law firms and institutions develop as well as just women um feel they can bring to the table in terms of mentoring and guiding each other through those um you know, particular acute stages. I think we're in much, much better stages on all of that. So that's the point as to systemic barriers to the extent that I see them as to what can we do to break them down anything and everything. And again, I don't think this is a issue only to be answered by women, but as institutions who, you know, put a pledge and, and create sort of a thoughtful system around this particular issue to, to ensure that there's representation. But I think we as individuals also can do something uh quite modest, which is to stop being apologetic for all the aspects that feed into our personalities, whether they are personal or professional and ultimately feasible by the horns. And uh that is something I think piece by piece, we all could do more, which is just to be in a more empowered state in and of itself and then, you know, to appeal to the wider community in order to, you know, to get support and recognition around that.
Lucy: Thank you very much Juliya. My bonus question to you then and I've asked everyone else this same question, who is a role model or mentor in your career that you feel best embodies the Inspire Inclusion message.
Juliya: That's a very tough question I'm sure for anyone who ultimately to grow in law, one requires a great level of mentorship. I think there is a bespoke way of shaping one's career I think as the International Arbitration. We have such a steep learning curve pretty much at every stage of what we do because we're encountering new legal systems, new cultural systems. Uh you know, everything we do is inherently international. And I think looking at examples of uh women, I would say, particularly from kind of weaker rule of law countries in the way that they, you know, have managed to, you know, create not, not just their own brand, but you know, a real working ecosystem around, you know, the legal issues that impassion them. And there are more individuals than I can recall whom I have met from, you know, all quarters of the world who have really exemplified that and inspired me I think as a, as a class of individuals, you know, and have shown us that really what what we are doing is um is much, much easier than, than what they had to do. And I think, you know, we’ll collectively keep that forward.
Lucy: And as a senior partner, is it still important to have mentors? Or would you say that you are now more focused on being a mentor to others?
Juliya: I think it takes two to tango in terms of shaping one's career in the modern world, especially in large enterprises such as law firms. I think mentorship is a honor. It's also a duty. And I think everyone along their respective paths have a lot to offer. And I don't necessarily see this as a woman's issue. I think uh generations of lawyers have very good insight and reflection for the next generation because one, they've been through the trenches, but two, they can reflect on the speed of change and the kind of issues which are, you know, manageable and, and I think that's how we, you know, better, the practice of law and perhaps, you know, through that collective effort deconstruct some of these barriers that you were mentioning in the, in the earlier part of the call.
Lucy: No, I absolutely agree. And it's, it's certainly not a, a mentorship is certainly not a women's issue. And I know myself and many of the other people we've had on the podcast today, you know, their mentors have been men and it's all about having different, you know, different perspectives. Thank you very much, Juliya. That's been fantastic to have you here. So, my next guest is Vanessa Thieffry, a senior associate in our Paris office who focuses on international arbitration. Hi, Vanessa, how are you?
Vanessa: Hi, Lucy. Very well. Thank you and thank you for inviting me to speak during your podcast.
Lucy: Oh, it's great to have you here today. So, Vanessa, my question to you is, how have you been inspired in your legal career? And how has this influenced your approach to inclusivity in the workplace?
Vanessa: Well, Lucy, I think that my inspiration comes from the diversity of structures and teams I have been working with during my legal career, I started off in a very small boutique arbitration firm. We were only five lawyers, then I came into a bigger structure, an independent law firm that had 70 lawyers, but we were only a team of 10. And for five years now, over five years, I've been at Reed Smith with a global arbitration team, but within an office and I think that in smaller offices, you have a better feeling of belonging and having a voice within your team. That's what I felt in this first structure I was in where we were five. Of course, when you are five, you have a voice and a sense of belonging. In my second law firm, we were 70 people, 70 lawyers. But again, the team was very closely knit and we were about 10 lawyers. So again, you have a voice, you have this sense of belonging, you have this sense of wanting to further your team and in bigger structures, what I discovered, Reed Smith is that you have this organization in industry practice groups and community groups which enable you to have an identity and to be included and to further inclusivity. So I think that my inspiration comes from these organizations that all come up to two things, teamwork and adaptability and that is how you get your sense of belonging.
Lucy: That's really interesting, Vanessa, thank you. And you know, I've spent my whole career at Reed Smith. So in some ways, I have a limited pool of experience to, to draw on in that, in that respect. So thank you for sharing that. Now, Vanessa, my bonus question that I'm asking all of my guests today who is a role model or mentor in your career that you feel best embodies the inspire inclusion message and this can be more than one person.
Vanessa: Well, there haven't been a number because as I was saying, I think it all comes back to teamwork. My first boss was an 80 plus year old arbitrator. So of course, you feel inspired and listen to when you're a young lawyer and you are face to face with that arbitrator who can be scary and he listens to you and, and afterwards throughout my career, I have been lucky enough to have strong team managers who knew how to hear their team members. And at Reed Smith that goes um with our internal WINRS group Women's Initiative Network who does a lot to promote women and in our firm and to give them a sense of belonging. And we also have strong industry and practice groups or international arbitration group. Although it is across 32 offices is actually a very strong knit and tight network of arbitration practice lawyers who regularly get together to work together and who promote their associates also.
Lucy: Thanks so much Vanessa. That's great. And my next guest, I have senior associate Alison Eslick, who focuses on construction arbitration in our Dubai office. Hello, Alison, thanks so much for joining me today. Now, my question for you Alison is how do you envision the evolution of the legal profession in terms of gender equality and inclusion?
Alison: Thanks Lucy, I'm delighted to um handle that question because although we still have a long way to go. Look, I am really optimistic about DEI in the legal profession. And I think, you know, there's never been a time when DEI and ESG um have been talked about more in legal circles and the momentum really does seem to be growing. So I wanna give you an example, Lucy of some exciting changes here in the Middle East where as you know, I've been based since 2008. So most notably at the moment, all eyes are on the Kingdom of Saudi Arabia. So there's enormous economic and societal changes going on in the Kingdom, especially for women. So one of the Saudi government's vision, 2030 targets is to have 30% female workforce participation by 2030. And that target was actually smashed in 2023 with participation reaching 35%. There's also legally strict enforcement of equal pay for women. And we've got several examples of Saudi power, women in top C-suite and general council roles. So for example, the General Council and Secretary General of Saudi's Public Investment Fund PIF is a woman. Her name is Shihana Alazzaz. So basically the top legal job in Saudi at the moment is filled by a woman. We've also got Sarah Al-Suhaimi who's a chairperson of the Saudi Stock Exchange. Um We've got Esraa Al-Buti who's the first female tax partner at Ernst and Young in Saudi. And look, I mean, Lucy 4 to 5 years ago, I would not have been sitting here so excited about DEI in the Kingdom of Saudi Arabia, but it really does seem to be happening. You've also got the SCCA which is the Saudi Centre of Commercial Arbitration. It's a signatory to the ERA pledge and they're really taking seriously their commitment to appointing female arbitrators. So, look, I think the changes in Saudi are a great example of how positive changes uh for women can and actually are happening in the legal profession, perhaps even in places where you might least expect it.
Lucy: And my bonus question, Alison, who is a role model or mentor in your career that you feel best embodies the Inspire Inclusion message.
Alison: OK. Look, I'm gonna stick with the theme of Saudi for the moment. And I want to say that a role model I've recently discovered is a lady called Bayan Mahmoud Al-Zahran. So she became uh one of the first female attorneys in Saudi Arabia back in 2013. She was aiming to breakdown barriers in Saudi and she launched an all female law law firm with the goal to fight uh for the rights of local Saudi women. So, I mean, she was a trailblazer and I, I think you can't get something more inspirational than that.
Lucy: And that concludes this year's International Women's Day, Women in Arbitration podcast. We hope you've enjoyed listening.
Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration Practice. Email arbitralinsights@reedsmith.com. To learn about the Reed Smith arbitration pricing calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.
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Transcript is auto-generated.
This episode is recorded in Russian.
In this Russian-language edition of our ISDS podcast series, Sultan Seidalin and Aitmaganbet Ospanbekov provide a comprehensive overview of the most significant developments in investment treaty arbitration during the latter part of 2023. This episode is a Russian-language translation of our previous episode “Investment treaty arbitration: 2023 in review” hosted by Suzie Savage and Patrick Beale.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
Aitmaganbet: Здравствуйте и добро пожаловать на наш первый выпуск серии подкастов на русском языке. Я напомню, что это по-русски урегулирование споров между инвестором и государством или сокращенно, как его называют «УСИГ». Меня зовут Айтмаганбет Оспанбеков, и я являюсь юристом в группе по международному арбитражу в офисе Рид Смит в городе Астана. Я рад, что ко мне присоединился мой коллега Султан Сейдалин, старший юрист по международному арбитражу, также работающий в астанинском офисе Рид Смит. Здравствуйте, Султан.
Sultan: Здравствуй, Айтмаганбет. Очень приятно вести с тобой этот подкаст. Всегда интересно, конечно, проверить и подвести итоги того, что произошло за последние шесть месяцев, и что нас ждет в перспективе.
Aitmaganbet: Да, определенно интересно, и нам есть о чем поговорить начнем с Договора к энергетической хартии. Ранее государства-члены ЕС выразили намерение выйти из ДЭХ. Европейская комиссия в своем прошлогоднем решении настаивала на скоординированном выходе ЕС, Евроатома и всех государств-членов из Договора к энергетической хартии. Намерение выйти из ДЭХ связано с обеспокоенностью общества о том, что ДЭХ представляет защиту инвестициям, осуществленным в сектора горючих полезных ископаемых. В результате чего ДЭХ находится в кризисе, а его будущее не определено. Что-то изменилось с тех пор Султан?
Sultan: Да, Вы правы, Айтмаганбет одиннадцать стран уже уведомили о своем выходе или намерении сделать это. И седьмого июля Комиссия Европейского союза предложила скоординированный выход TC, его государств-членов и Евроатома из Договора к энергетической хартии. Более того, в сентябре Правительство Великобритании объявило, что пересмотрит членство Великобритании в договоре и рассмотрит возможность выхода из него, если соглашение по изменённым условиям не будет достигнуто к ноябрю две тысячи двадцать третьего года. Если государства Европейского союза осуществят скоординированный выход, это вдвое сократит число подписавших сторон и, следовательно, географический охват мер защиты, предусмотренный ДЭХ. Тем не менее, на заседании Конференции Энергетической хартии в ноябре прошлого года секретариат ДЭХ указал, что они желают возобновить свою политику консолидации и расширения привлечений, так называемое CONEXO, путем рассмотрения потенциального сотрудничества с ОПЕК. Это может указать намерение расширить членство в ДЭХ за счет государств ОПЭК.
Aitmaganbet: это все представляет большой интерес, учитывая всю неопределенность относительного будущего ДЭХ. Существует ли альтернатива для инвесторов, которые считают, что маршрут защиты инвестиций через ДЭХ для них закрыт?
Sultan: Да, конечно, инвесторам следует определить, имеется ли соответствующее двустороннее инвестиционное соглашение предполагающее защиту аналогичную ДЭХ. Если нет, они могут рассмотреть возможность реструктуризации своих инвестиций через оставшиеся государства, подписавшие Договор к энергетической хартии. Они также могут попытаться усилить договорную защиту посредством соглашения с правительством принимающей страны. и в качестве альтернативы, если государство инвестора и принимающее государство являются участниками Европейской конвенции о правах человека, существует еще возможность для них сослаться на положения о защите собственности, содержащиеся в статье 1 Протокола 1 к этой Конвенции. К примеру, группа акционеров ЮКОСа успешно подала иск против России до ее выхода из Конвенции по ЕСПЧ и получила компенсацию в размере почти два миллиарда долларов США. Ну и, наконец, может быть рассмотрен вариант страхования от определенных рисков.
Aitmaganbet: Спасибо, Султан. Приятно осознавать, что у инвесторов есть и другие варианты. Теперь предлагаю обсудить кратко другой вопрос это процедуру исполнения арбитражного решения. Недавно в английских судах рассматривалось крупное дело по этому вопросу. Не так ли, Султан?
Sultan: Совершенно верно. В деле Инфраструктурные услуги Люксембурга против Испании Английский коммерческий суд отклонил попытке Испании воспрепятствовать исполнению решения ДЭХ, вынесенного в пользу инвесторов, учрежденных в Европейском союзе.
Aitmaganbet: Дело в том, что в этом отношении английский суд не последовал решениям Суда Европейского союза по делам Achmea и Комстрой, который определил, что внутриевропейское арбитражное разбирательство в рамках ДЭХ противоречило законодательству ЕС.
Sultan: Все правильно. Позиция Европейского союза заключается в том, что он является окончательным арбитром по всем вопросам, касающимся интерпретации и применения правового порядка Европейского союза. Однако судья по делу Инфраструктурные услуги Люксембурга против Испании установил, что договоры Европейского союза не имеют приоритета над положением о разрешении споров в статье 26 ДЭХ. Соответственно, арбитражное решение против Испании имело возможность быть зарегистрированным и исполненным в Великобритании. Что касается внутренних дел Великобритании, произошло еще одно весьма интересное событие. Так, Комиссия по законодательству провела пересмотр закона об арбитраже Великобритании 1996 года.
Aitmaganbet: Да, это так, и Комиссия по законодательству опубликовала свои рекомендации в сентябре прошлого года. Предложения и поправки были разработаны после консультаций с арбитражными юристами и всеми заинтересованными лицами. Кстати, включая Рид Смит, чьи рекомендации были процитированы в отчете Комиссии по законодательству по этому вопросу. Законопроект об арбитраже был затем включен в речь короля в ноябре прошлого года. Это означает, что его будут рассматривать на следующей законодательной сессии.
Sultan: интересно, а какие основные рекомендации заинтересуют практикующих юристов, занимающихся инвестиционными спорами, с твоей точки зрения?
Aitmaganbet: несмотря на то, что существует несколько примечательных рекомендаций, в том числе в отношении упрощенной процедуры урегулирования иска и обязанности арбитов раскрывать информацию о любых потенциальных конфликтах интересов или любую соответствующую информацию, которая может повлиять на их беспристрастность, я думаю, что больше всего юристов-практиков по инвестиционным спорам заинтересует предполагаемые изменения оспаривания вопроса материальной юрисдикции трибунала.
Sultan: А можешь подсказать о том, какую реформу предложила Комиссия по законодательству?
Aitmaganbet: Да, конечно, цель состоит в том, чтобы упростить процесс оспаривания материальной юрисдикции арбитражного суда. Основной целью предлагаемой реформы является обеспечение, чтобы если трибунал уже вынес решение о своей юрисдикции, а возражающая сторона участвовала в этом процессе, то любое последующее оспаривание решения, согласно статье 67. то есть из-за отсутствия материальной юрисдикции должно осуществляться только путем пересмотра, а не полного повторного слушания, как это происходит в настоящее время. Цель состоит в том, чтобы снизить риск несправедливого и расточительного повторного слушания, который потенциально может возникнуть в результате полного повторного слушания. Возможность предоставить новые аргументы или доказательства, или пересмотреть старые доказательства будет ограничена только исключительными ситуациями.
Sultan: Да, в этом есть смысл. А как было воспринято это предложение?
Aitmaganbet: Спасибо за хороший вопрос Существует опасения, что оспаривание по статье 67, не являющееся полноценным повторным слушанием, может оказаться недостаточным для возникновения эстопеля в отношении вопроса при исполнении арбитражного решения за рубежом. Тогда возражающая сторона может начать еще одно оспаривание юрисдикции в иностранном суде, исполняющем решения. Возникшие в результате этого задержки и возросшие расходы, скорее всего, будут намного больше, чем экономия, полученная за счет отказа от повторного рассмотрения дела в Англии. Неопределенность и процессуальная несправедливость также будут гораздо выше, что сделает реформу статьи 67 пирровой победой. Однако комиссия по законодательству не была убеждена в значимости этого риска, отчасти потому, что ожидает, что иностранные суды все равно могут найти основания для возражения по делу даже в отсутствие полного повторного слушания. Ну что ж, время покажет, насколько обоснованы эти опасения.
Sultan: Давай вернемся к индо-тихоокеанскому региону. В июле прошлого года Великобритания подписала всеобъемлющее и прогрессивное соглашение о транстихоокеанском партнерстве (CPTPP), и у нее есть двенадцать месяцев на ратификацию соглашения, вступления в силу которого ожидается во второй половине 2024 года. В торговый блок входит Австралия, Новая Зеландия, Япония, Сингапур, Малайзия, Бруней, Вьетнам, Канада, Мексика, Чили и Перу.
Aitmaganbet: У меня возник вопрос, включает ли CPTPP положение об урегулировании споров между государствами и инвесторами.
Sultan: CPTPP является первым соглашением о свободной торговле после Брексита, подписанным в Великобритании, которое включает положение об урегулировании инвестиционных споров. Тем не менее, у Великобритании уже есть действующие двусторонние инвестиционные соглашения с Сингапуром, Малайзией, Перу, Чили, Вьетнамом и Мексикой, которые также содержат арбитражные оговорки между инвестором и государством. Однако Великобритания вела переговоры о дополнительных соглашениях с Австралией и Новой Зеландией, с которыми у нее нет существующих двусторонних инвестиционных соглашений для того, чтобы исключить применение УСИГ (ISDS) в рамках CPTPP.
Aitmaganbet: А как рассматриваются иски УСИГ (ISDS) в рамках CPTPP?
Sultan: Стандартная процедура иски рассматриваются трибуналом в составе трех арбитров по одному арбитру назначается каждой сторон, и председатель назначается совместно сторонами, если иное не согласованно сторонами.
Aitmaganbet: Есть ли какие-то особенности механизма урегулирования споров между государством и инвестором в данном случае, о которых слушателям будет полезно узнать?
Sultan: Да, я думаю, что интересно знать следующие основные моменты. В соглашении предусмотрен обязательный шестимесячный период для переговоров, так называемый «cooling-off» период. Инвесторы могут подавать иски CPTPP без предварительного обращения к национальной судебной системе, хотя есть оговорка о подсудности, которая не позволяет инвесторам обращаться в арбитраж против Чили, Мексики, Перу и Вьетнама, по искам, которые уже были поданы в национальные суды или административные трибуналы этих государств.
Также уведомления об арбитраже направленные на любой сторон, подписавших договор должны сопровождаться письменным отказом от права на возбуждение или продолжение рассмотрения тех же исков в любом суде, административном трибунале или другом органе по разрешению споров. И одна особенность, на которую следует обратить это срок исковой давности Он ограничен сроком в 3.5 года.
Aitmaganbet: А как насчет материальной защиты, предлагаемой данным договором?
Sultan: Ну, здесь для некоторых секторов, к примеру, здравоохранения присмотрено исключение из стандарта национального режима. Соглашение представляет государствам право отказать в применении Главы договора об инвестициях, касающихся государственных мер по контролю за табаком и табачной продукцией и недискриминационных регуляторных актов, направленных на достижение общественного благосостояния. Это не рассматриваются как косвенная экспроприация.
Aitmaganbet: Султан, а какие правила применяются к арбитражу в рамках CPTPP?
Sultan: здесь могут рассматриваться и применяться регламенты МЦУС или ЮНСИТРАЛ, а также любые другие арбитражные регламенты, которые будут согласованы между сторонами.
Aitmaganbet: Большое спасибо, Султан. А теперь давайте перейдем от Индотихоокеанского региона к Америке и поговорим больше о раскрытии информации в США. Верховный суд США недавно пришел к выводу о том, что помощь в раскрытой информации в США в соответствии со статьей 1782 Кодекса США не распространяется на иностранный частный коммерческий арбитраж или специальный арбитраж между инвестором и государством. Верховный суд постановил, что на статью 1782 можно слаться только в том случае, если иностранный трибунал является правительством или межправительственным судебным органом
Sultan: Да, и это оставило вопрос о том, можно ли использовать статью 1782 для поддержки арбитражных разбирательств в рамках МЦУИС.
Aitmaganbet: Совершенно верно. Однако следует уточнить, что Верховный суд не дал конкретного теста или критерия, которому должны следовать нижестоящие суды в таких случаях.
Sultan: Да, я бы хотел отметить в данном случае решение по делу Webuild S.P.A, рассмотренное в Южном округе Нью-Йорка, в рамках которого был отклонен запрос истца о предоставлении доказательств для использования перед трибуналом МЦУИС. Судья данного суда пришел к заключению, что содействие по сбору доказательств в рамках статьи 1782 недоступно истцам в арбитраже МЦУИС по в рамках ДИС между Панамой и Италией.
Aitmaganbet: Совершенно верно, и это решение теперь обжаловано во Втором апелляционном округе. Подготовка аргументации завершена в августе прошлого года, включая докладную записку, предоставленную Соединенными Штатами, которая утверждает, что арбитражный суд между инвестором и государством, созванный в соответствии с Конвенцией МЦУИС, не является иностранным или международным трибуналом в соответствии со статьей 1782.
Sultan: Да, будет интересно посмотреть, как второй апелляционный округ решит подойти к этому вопросу. И я думаю, что мы обязательно вернемся к данным событиям в нашем следующем выпуске.
Aitmaganbet: Давайте теперь поговорим о реформе УСИГ (ISDS). Рабочая группа №3 UNCITRAL рассматривает широкомасштабные реформы системы. В октябре прошлого года Рабочая группа рассмотрела проекты положения о процедурных реформах и так называемых сквозных вопросах.
Sultan: именно так, Айтмаганбет, и секретариат сейчас представил проект положений, которые могут быть включены в существующие или будущие международные инвестиционные соглашения, или в качестве дополнения к арбитражного регламенту ЮНСИТРАЛ. Они рассматривают многие вопросы, которые были спорными.
Sultan: Текущие предложения сгруппированы в три раздела. В первом разделе рассматриваются условия ограничения подачи требований. в рамках инвестиционных споров, например, инвесторы обязаны инициировать разбирательство в судах, принимающих государств в отношении оспариваемых мер, прежде чем они смогут прибегнуть к инвест арбитражу. Также существует требования к инвестору отказаться от права инициировать или продолжать любое другое производство по разрешению споров, касающееся оспариваемых мер.
Предполагается предусмотреть срок исковой давности, продолжительность которого еще не определена.
Предусматриваются подробные положения, касающиеся обстоятельств, при которых государство может отказать инвестору в преимуществах МИС, в том числе, когда инвестиции были сделаны в нарушение законов и правил государства или национальных или международных принципов добросовестности или были сделаны путем коррупции, мошенничества или обмана. Также предусмотрено четко выраженное право договаривающихся сторон урегулировать спор в общественных интересах и принимать меры для обеспечения того, чтобы инвестиции осуществлялись с учетом защиты общественного здоровья, окружающей среды, а также поощрения и защиты культурного разнообразия.
Ну и, наконец, в этот раздел включено право государство определяет встречные иски, что является очень важным моментом.
Aitmaganbet: В дополнении ко всему, второй раздел посвящен проведению разбирательств, в том числе и в отношении бифуркации, обеспечительных мер досрочного прекращения дела, обеспечения расходов и финансирования арбитражей третьими сторонами, так называемый «third party funding». Третий раздел содержит положение, регулирующие оценку трибуналом ущерба и компенсации. Они требуют, чтобы трибунал учитывал вину истца, его неспособность смягчить убытки или ущерб. В нем также рассматривается вопрос об оценке ущерба в случаях осуществления инвестиций на ранней стадии, т. е. без истории ведения бизнеса, чтобы снять опасения по поводу иногда спекулятивного характера таких исков. Обсуждение будет продолжено на следующей встрече, которая состоится уже совсем скоро двадцать второго января текущего года в Вене.
Sultan: Спасибо. Я думаю, мы будем ждать остальных событий, которые будут в этом году в ближайшей перспективе. Я думаю, что на этом мы завершим выпуск. Я надеюсь, что это был интересный и полезный обзор недавних и ожидаемых событий в инвестиционном арбитраже Большое
Aitmaganbet: спасибо, что слушаете наш подкаст. Мы надеемся, что вам также будет интересен следующий выпуск нашей серии подкастов и особенно следующий подкаст, посвященный системе урегулирования споров между инвесторами и государством. На нашем сайте вы можете узнать больше об опыте работы Reed Smith в Лондоне, Париже, США, Астане и других странах по вопросам инвестиционных споров.
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This episode is recorded in Spanish.
Rebeca Mosquera and Isabella Lorduy welcome Elina Mereminskaya, head partner at Wagemann Arbitration and chair of the Institute for Transnational Arbitration (ITA) Americas Initiative, for a conversation exploring the strides and struggles of women in arbitration toward achieving equity. They then discuss the collaboration between the ITA and the Reed Smith Latin America Business Team in creating the 2023 ITA Latin American Arbitral Institutions Guide and Scoreboard, along with the insights gained.
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Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. Welcome to our Women in Arbitration podcast mini series, a platform for women’s voices across the global international arbitration community. I am Lucy Winnington-Ingram, an international arbitration lawyer based in Reed Smith’s London office. In these episodes, we will hear from leading women in the international arbitration space and discuss industry news, trends, developments and matters of interest. And with that, let’s get started.
Isabella: Welcome to Arbitral Insights. Mi nombre es Isabella Lorduy Asociada de Reed Smith en el Grupo de Energía y Recursos Naturales Es un gusto estar hoy en este espacio grabando nuestra primera serie Podcast en español. Hoy precisamente nuestro tema de conversación se enfocará en Latinoamérica específicamente en la guía del Institute for Transnational Arbitration, comúnmente conocido como el ITA sobre las instituciones de arbitraje en América Latina. Y hoy estaremos conversando sobre sus principales conclusiones frente a la diversidad de género. Para esto tenemos dos invitadas muy especiales. En primer lugar, tenemos a Rebeca Mosquera, quien es asociada senior en la oficina de Nueva York de Reed Smith con más de una década experiencia en arbitraje internacional, comercial y de inversión. El trabajo de Rebeca, la ha hecho merecedora de numerosos reconocimientos, incluyendo un lugar en la lista de Latinx de las cien mejores abogadas de América Latina en arbitraje y litigios por cuatro años consecutivos. Además, Rebeca es miembro de la junta directiva de Arbitral Women y representante de ICC YAF para Norteamérica, entre otras instituciones.
Por otro lado, tenemos a Elina Mereminskaya. Elina, Disculpe por la pronunciación del apellido de antemano. Elina es socia de Wagemann Arbitration, presidente de la ITA para las Américas, Doctora en Derecho de la Universidad de Göttingen en Alemania y Magisterio en Derecho de la misma universidad. Ha concentrado su ejercicio profesional asesorando a grandes empresas nacionales, latinoamericanas y europeas en varios proyectos. Además, pertenece a la lista de árbitros en diversos centros arbitrales, incluyendo la Cámara de Comercio de Chile, el ICDR y entre otras instituciones. Elina también es Fellow del Chartered Institute of Arbitrators. Sin más preámbulo, quiero empezar explicándole un poco a la audiencia que es el ITA o ITA, el cual ya he mencionado varias veces. Este es un foro educativo para el intercambio de ideas y el desarrollo de las mejores prácticas entre abogados, árbitros y profesionales involucrados en el arbitraje internacional, comercial y de inversiones. La guía que hoy estaremos discutiendo se basa en una rigurosa encuesta que no sólo rastreó el crecimiento de las instituciones arbitrales en América Latina, sino que también identificó factores claves que son actualmente temas candentes en el arbitraje internacional. Estos incluyen el aumento de la designación de mujeres árbitros tanto en los tribunales como en las listas institucionales, la disponibilidad de árbitros de emergencia y el cálculo de honorarios, entre otros temas de gran interés para la comunidad arbitral. Daniel Ávila, asociado de Reed Smith y coautor de esta guía, fue de hecho que tuvo la iniciativa e idea de encontrar un espacio para enfocar la conversación en una de las conclusiones más importantes de la guía. Tendremos que buscar otros espacios para seguir comentando esta gran publicación, pero por ahora quisiera empezar preguntándole a Elina cuál fue la metodología que usaron para llegar a las conclusiones de esta guía.
Elina: Muchas gracias, Isabella. Muchas gracias por la presentación. Excelente pronunciación de mi apellido. Tengo que aclarar que soy socia de Wagemann Arbitration una oficina boutique con sede en Santiago de Chile y bueno, respondiendo a tu pregunta, yo tengo el privilegio de dirigir ser Chair de la American Iniciative del ITA Institute for Transnational Arbitration y en el año dos mil once, la Iniciativa de las Américas de y ITA prepararon la primera versión de esta guía. Daniel Ávila tuvo la fantástica idea de acercarse al ITA y ofrecer el apoyo de Reed Smith y de bueno de él personalmente para hacer una versión actualizada. Y lo que hicimos con él fue, primero, hacer un levantamiento de las instituciones arbitrales existentes nuevas. Para eso consultamos en el ITAFOR, consultamos con nuestros delegados en distintos países delegados del ITA y una vez validadas las instituciones, las invitamos a participar de esta encuesta. Asimismo, actualizamos las preguntas con respecto a lo que fue el año dos mil once. Incluimos muchas preguntas nuevas y entre ellas las preguntas de género en el dos mil once no fue un tema tan relevante como lo es hoy. Y bueno, enviada la encuesta a las instituciones, se recibieron respuestas de un porcentaje significativo de las instituciones, lo que nos ha permitido elaborar esta guía como un informe final que va acompañada de gráficas de conclusiones. Así que invito a todo el mundo descargarla de la página web de ITA para poder conocer estas conclusiones generales y particulares sobre el estado del arbitraje institucional en América Latina.
Isabella: Sí, de acuerdo. Creo que es una guía que vale la pena revisar porque tiene información actualizada de todo lo que está sucediendo en estas jurisdicciones y, de hecho, adentrándonos un poco al enfoque de diversidad de género. Ustedes resuelven la pregunta de qué porcentaje de la lista internacional son mujeres? La mayoría de las instituciones que respondieron a la encuesta de la Guía contestaron que en menos del veinticinco por ciento de sus listas nacionales e internacionales contienen árbitros mujeres. Y aunque las cifras siguen siendo bajas, el nombramiento global de mujeres es mucho mayor en comparación con décadas anteriores. Y esto hay que reconocerlo. En esta línea, la guía también destaca que frecuentemente el árbitro único o el presidente del tribunal es nombrado por las instituciones, lo que podría resultar en el esfuerzo institucional para aumentar el nombramiento de mujeres y que esta cifra suba. Quería preguntarte en este punto Elina, estás de acuerdo con el nombramiento de mujeres por las instituciones como un mecanismo para combatir la inequidad de género en el arbitraje internacional?
Elina: De todas maneras, sí Isabella. Yo creo que en las instituciones recae la función de ir profesionalizando el arbitraje. Cierto, porque son se encuentran en la mejor posición para efectuar el nombramiento de los árbitros con conocimiento de la materia. Y en ese sentido tienen la misión, me atrevería, a decir, de aportar también a la diversidad en el arbitraje, promoviendo el nombramiento de las mujeres.
Isabella: Gracias, Elina. Ahora, continuando con un poco el tema de la creación de igualdad de oportunidades, hay una tesis que dice que la promoción de la mujer en el arbitraje no parte del principio de pretender lograr el mismo número de árbitras y árbitros. Más bien busca crear igualdad de oportunidades para aquellas mujeres preparadas para desempeñarse en estos puestos. Elina, tú estás de acuerdo con esta premisa y si estás de acuerdo, qué herramientas podrían ser implementadas para crear un mayor acceso a estas oportunidades y que las mujeres lleguen a este puesto de árbitras?
Elina: Muy buena la pregunta, Isabella. Muchas gracias. Bueno, la premisa en sí es bastante interesante si consideramos que las aulas universitarias hoy en día están pobladas por un cincuenta por ciento de hombres, cincuenta por ciento de mujeres, si consideramos que entre los asociados de los estudios norteamericanos, aproximadamente un cuarenta por ciento constituyen mujeres. Por qué no deberíamos tender hacia el número cercano, al igual de hombres y mujeres? Pero bueno, aceptando tu premisa como premisa correcta, es decir que no se busca lograr el mismo número de árbitras de árbitros, vamos a desarrollar bajo esta premisa, que es lo que se puede hacer desde mi perspectiva. La carrera habitual conducente a asumir el papel de árbitro ha sido lograr primero la posición de socia en un estudio jurídico litigante en arbitraje. Pero como sabemos, los porcentajes de mujeres que llegan a ser socias, incluso en los países llamémoslo desarrollados, no fuera de América Latina, son bajísimos. Según Legal 500, en el Reino Unido corresponde al dieciocho por ciento, en Alemania diez por ciento, en Estados Unidos Equity Partners mujeres son un veinte por ciento y no Equity Partners ascienden a treinta por ciento. Al mismo tiempo, hay muchas abogadas asociadas, directoras, ocasos todos estos diversos títulos que demuestran que son indicativas de la madurez de la profesional pero que la separan de ser socia. Y todas estas abogadas tienen la experiencia necesaria para desempeñarse como árbitras. Entonces lo que yo creo es que hay que hacer. Hay que desvincular la figura del árbitro, del árbitro, del rol de socia. Son habilidades no relacionadas de ninguna manera. Y de lo contrario, si los mantenemos, si las mantenemos vinculadas, las mujeres se ven doblemente castigadas. Por un lado, no llegan a ser socias y por otro lado, no llegan a ser árbitras. Y bueno para lograrlo yo creo que hay que promover esta idea tal como lo estamos haciendo ahora y más que nada, darle visibilidad a estas mujeres con talento y experiencia. Y para ello la teoría sociológica política acepta el uso temporal de las cuotas como algo muy establecido y creo debería implementarse también en el arbitraje. Personalmente, a mí no me ofendería ser nombrada como árbitro debido a que existe una cuota de participación femenina. Estaría agradecida que para cumplir con la cuota me elegirían a mí habiendo tantas otras candidatas. Igualmente tendría certeza que me nombran por mis cualidades y no por ser mujer. Ningún hombre asume que lo nombran por ser hombre y creo que la misma actitud corresponde que sea tomada por mujeres.
Isabella: Muchísimas gracias por la respuesta, Elina. Creo que es muy interesante y es importante que todas las mujeres empecemos a oír este tipo de ideas desde ya, porque es la manera un poco de no castigarnos, sino darnos cuenta hacia dónde tenemos que ver y digamos, siguen un poco tu línea y los comentarios. Creo que ha quedado claro que la diversidad de género encapsula muchos más factores que simplemente el hecho de ser mujer o no. También se debe tener en cuenta la edad, la nacionalidad, entre otros factores. Y pongo un ejemplo, a veces hay mujeres muy capacitadas y también hombres que por la edad, de pronto encuentran una barrera en ser, digamos, en conseguir cierto tipo de reconocimientos opuestos en el campo del arbitraje, igualmente con la nacionalidad, con la diferencia de factores y de factores, de dónde vienen y de las oportunidades que han adquirido. Y en este punto, quería preguntarte cómo abordar estos factores en las iniciativas que ya existen para crear mayores oportunidades en el campo del arbitraje internacional. Crees que deberían ser abordados como tema de género y tema de edad aparte? O tratar de combinar un poco todos estos factores para crear iniciativas que aborden más las problemáticas? Cuál es tu perspectiva de cómo cobijar tantas cosas, pasando al mismo tiempo?
Elina: Si desde mi perspectiva el grupo minoritario en el arbitraje son las mujeres, el grupo minoritario más importante son las mujeres. Si empezamos a considerar diversidad regional, por ejemplo, hay diversos grupos minoritarios, cierto. América Latina se ve menos, con excepción de Brasil, que es asna, se ve menos representada en el arbitraje internacional. Lo mismo se puede decir de Asia. Lo mismo se puede decir de África. Entonces hay un conjunto de ámbitos geográficos y ese conjunto no es homogéneo. Entonces crearon una iniciativa para promover este conjunto heterogéneo, cuyos elementos se encuentran en distintos en distintas etapas de desarrollo de arbitraje en distintas etapas de acumular la experiencia como comunidad arbitral. A mí me parece difícil. Ahora hay iniciativas puntuales muy importantes para acoger la diversidad regional, que pueden ser muy valiosas. Lo que yo creo que en América Latina tenemos que poca otra región tiene es la ventaja del uso común del idioma. Creo que deberíamos apuntar a crear una mayor movilidad de los árbitros dentro de América Latina. Habiéndose aquí la primera opción para un nombramiento fuera un candidato, una candidata de la región y una vez que logremos un pool de árbitros y árbitras latinoamericanos que se desempeñen con facilidad en el arbitraje internacional, ahí podríamos competir a nivel global. Pero en esta materia me parece menos factible la introducción de cuotas, por ejemplo, no, porque podríamos estar interfiriendo con requerimientos que plantea un caso arbitral en cuanto al idioma. En cuanto a la formación legal, todas estas situaciones que pueden ser fácilmente superadas cuando estamos mirando un universo de mujeres.
Isabella: Entendido. Muchas gracias, Elina. Creo que hay tantas cosas que quisiera preguntarte sobre todo lo que acabas de decir. Lastimosamente no tenemos suficiente tiempo, pero creo que estos son el tipo de espacios que simplemente nos abren la puerta para seguir discutiendo este tema tan importante. Creo que mi última pregunta hacia ti, que también se la quiero hacer a Rebeca, es el valor agregado sobre la diversidad de género. Porque hay autores en el campo del arbitraje internacional que argumentan que no hay ningún consenso o estudio que demuestre que se mejore la calidad de los laudos o la eficiencia del arbitraje como proceso por tener árbitros, mujeres, entonces un poco. La tesis es como no importa si son mujeres, si son hombres, simplemente necesitamos un buen laudo. Por qué la necesidad de tener estos personajes como a manera de cuota? Para ti, Elina, cuál es el valor agregado que representa tener más mujeres, árbitros y representantes de parte en los casos de arbitraje internacional?
Elina: Bueno, sería algo atrevido sostener que la incorporación de las mujeres mejora la calidad de laudos? No, tampoco somos casi iba a decir súper hombres, pero no somos superhéroes súper heroínas. Eso es para mí la principal ventaja central, ventaja y valor agregado es la atracción de talento que de lo contrario habría quedado invisibilidad invisibilizado debido a las restricciones del sistema que ya discutimos. Y es simplemente un sistema injusto de alguna manera, la que no permite surgir a las mujeres talentosas. Y es lo que las cuotas pretenden corregir. No mejorar los laudos, sino que abrirse a la entrada de más árbitras árbitros árbitras que están que se encuentran en condiciones para hacer buenos laudos. Cierto. Hay estudios que indican que las mujeres, por ejemplo, tienden a tener un mejor manejo en la interacción en las relaciones sociales y tienen una mayor capacidad para lograr beneficios sistémicos. Es decir, se en un pequeño punto cuando piensan que finalmente pueden obtener un logro sistémico mayor. Y lo anterior sin duda podría generar tribunales arbitrales más cohesionados. Deliberaciones más fluidas. Pero para mí todas esas ventajas son adornos nada agradables. Lo relevante es la atracción de talento que se está perdiendo.
Isabella: Creo que en eso estamos todos completamente de acuerdo. Lo que mejora un proceso es tener más talento, descubrir nuevas caras que puedan aportar excelencia a estos procesos. Entonces creo que ahí se demuestra claramente cuál es el valor agregado sobre abrir las oportunidades a nuevas caras. Con esto creo que terminaríamos nuestra ronda de preguntas. Agradecemos nuevamente tu acompañamiento y todos los comentarios en esta sesión y esperamos que podamos vernos y seguir comentando estos temas pronto. Muchísimas gracias por el tiempo, Elina.
Elina: Muchas gracias a ti, Isabella.
Isabella: Ahora, continuando con nuestra conversación, quiero preguntarle a Rebeca sobre los actores involucrados en esta discusión. Y es comúnmente aceptado que la equidad de género en el arbitraje internacional es, en general, un tema que involucra a todos. Y en tu criterio, Rebeca, quiénes son los actores más determinantes para cerrar la brecha de equidad de género en el arbitraje internacional?
Rebeca: Hola, Isabella. Antes que nada, me da un grato placer estar acá conversando contigo acerca de la diversidad de género en el arbitraje internacional. Y te agradezco mucho esa magnífica introducción y bueno, como bien has dicho con respecto a los actores más determinantes para cerrar la brecha de equidad de género en el arbitraje internacional, pues todos y todas somos actores determinantes a todos los niveles, somos responsables y jugamos un rol determinante en concientizar y cerrar esa brecha. Por ejemplo, yo soy una gran partidaria de listar mujeres en las listas de árbitros que se preparan para sugerirle a los clientes, lastimosamente a lo largo de mi trayectoria como abogada, pues la mayoría del tiempo no he tenido tanto éxito, ya sea por sesgo de parte del propio cliente o como me dijo algún socio alguna vez, en que esa persona pues no tenía gravitas o que bueno, la escuché hablando y habla muy bajo y claramente ese es un momento en donde es el abogado el que tiene quizás una gran responsabilidad en educar al cliente y viceversa en algunos casos para poder cerrar esa brecha claramente. Ninguna de las aseveraciones, pues, que he escuchado en el pasado, tienen algo que ver con el profesionalismo o preparación de estas mujeres. Y más que nada, esta es una tarea muy importante porque, por ejemplo, en el 2020, el Grupo de Trabajo Interinstitucional sobre la Diversidad de Género en los Nombramientos y Procedimientos Arbitrales publica un informe a través de la ICCA que documenta los avances hacia la consecución de una mayor diversidad de género entre los árbitros. Este informe fue actualizado recientemente, en el dos mil veintidós y este informe confirma en que creo lo que hemos venido hablando en este podcast de que ha habido mejoras en los nombramientos institucionales. Sin embargo, los nombramientos de por parte de las partes no han tenido una gran mejora. Las instituciones son en sí, posiblemente los defensores con la voz más alta de la diversidad en el arbitraje y quizás uno de los actores más eficaces. Creo que en este sentido también deberíamos hablar que los bufetes de abogados deben aumentar la visibilidad de sus abogadas invirtiendo en su formación, presentándola ante sus clientes. Esto que vayan a conferencias, participen en paneles. Los bufetes también deberían, pues mejorar. Y esto quizá sea parte de otro espacio. La retención y promoción del talento femenino es imprescindible tener mujeres en posiciones de liderazgo en los bufetes, tomando decisiones importantes y de hecho, hablando de los actores determinantes, creo es importante mencionar una anécdota que tengo de una buena amiga mía, árbitro, que era parte de un panel de árbitros donde ella era la única mujer, no solamente de ese panel de árbitros, sino también de los abogados de parte. Y ella consideró que los abogados la habían designado como una muestra de diversidad, dada la notable ausencia de mujeres estos participantes en ese arbitraje. Y basándose en eso, el tribunal consideró si se debía imponer costas a las partes por la falta de diversidad en sus filas. Entonces eso me pareció bastante interesante y si me parece de repente, que sea no como un tema o un punto importante que discutir. O quizás también tener en cuenta a la hora de que el tribunal los está viendo a los no, a las, a las partes, a los abogados de parte, quiénes son las personas de cada lado que tienen un rol importante. Y en ese sentido, me parece que los hombres también tienen un papel que desempeñar, sobre todo porque constituyen la mayor proporción de los altos cargos de en la industria y con ese poder tienen la gran responsabilidad de hacer valer el cambio a favor de grupos diversos y de la equidad de género.
Isabella: Muchísimas gracias Rebeca por esa cantidad no sólo de consejos prácticos, sino también reflexiones que se pueden aplicar en el día a día desde diversas perspectivas, no sólo desde el cliente, sino también desde el panel arbitral hasta los mismos abogados que son los que nominan a su y le presentan a su cliente los árbitros muy interesantes todos estos tips, como los veo yo y como le decía a Elina uno podría quedarse hablando de todo esto por horas, pero en vista del tiempo quisiera pasar a la segunda pregunta. Y es que en este momento hay varias iniciativas que promueven esta cerrar esta brecha de género y que si las sabes Rebeca, tu opinión frente al impacto que estas iniciativas como ArbitralWomen y Equal Representation in Arbitration Pledge, entre otras, tienen frente a la causa de la que estamos hablando. Consideras que son efectivas para fomentar la que te genio el sector? Piensas que están, digamos, moviéndose hacia el lado que todos esperamos o deberían tener algún twist, cuáles son tus opiniones? Y, sobre todo, porque estás internamente involucrada. Entonces nos interesa mucho saber cómo funciona y cuáles son los planes a futuro.
Rebeca: No, claro que sí. Isabella, esto mira, en efecto, yo precisamente por formar parte de la junta directiva de ArbitralWomen. No tengo duda que organizaciones como ArbitralWomen, iniciativas como el ER Pledge, entre otros, fomentan conversaciones y concienciación en torno a la actividad de género y al concepto de diversidad en términos más amplios. Por ejemplo, ArbitralWomen, este año cumple treinta años. Es más, hace dos días cumplió esos treinta años y en esos treinta años nuestra membresía ha crecido a más de mil miembros en más de cuarenta países. Además de crear redes y actividades sociales, ArbitralWomen se ha encargado de mantener un directorio de mujeres árbitros, patrocinar a mujeres estudiantes de derecho en competencias de tribunales simulados y trabajar con organizaciones sin ánimo de lucro para identificar a estudiantes prometedoras para becas y pasantías. Y lo cierto es que esta clase de organizaciones e iniciativas que promueven la equidad de género y diversidad en un término más amplio tienen que existir. Pero como me preguntabas acerca de los planes a futuros y voy a usar las palabras de Louise Barrington, que es cofundadora de ArbitralWomen junto con Mireze Philippe es que ellas esperan que en los próximos treinta años haya tal conciencia e inclusión tanto de mujeres como de otros grupos diversos a todos los niveles y esferas del arbitraje internacional. Que ArbitralWomen y otras iniciativas similares no tengan ya razón de existir. Entonces para mí eso me parece un gol, una meta que alcanzar en los próximos treinta años, en los que todos los que estamos involucrados en estas iniciativas trabajamos conjuntamente y al día a día para que eso pueda suceder. O sea, me imagino un mundo en donde no tengamos que tener ArbitralWomen porque es tan normal poder, por ejemplo, esto elegir a una mujer árbitro o tener más mujeres en las filas de los abogados de parte y demás. Y eso me pareció unas palabras con mucho peso y una meta quizás y probablemente alcanzable, que lo Barrington mencionó a base de los treinta años que estamos cumpliendo. Y es que, ArbitralWomen mientras tanto, verdad? Mientras tanto, seguiremos en ArbitralWomen y en otras organizaciones, seguiremos con nuestro arduo trabajo de ofrecer una plataforma a las mujeres a grupos diversos en donde puedan alzar su voz sin sentirse aislados. Hay tantas otras iniciativas como mencionabas que siguen avanzando la equidad de género en nuestra industria, que me parece que necesitaremos otro podcast u otro espacio para alistar cada una de ellas. Y el arduo y magnífico trabajo que siguen realizando respecto a la diversidad tenemos REAL que es el Racial Equality for Arbitration Lawyers lo con un enfoque en la diversidad racial de los miembros de la comunidad ArbitralWomen con un enfoque en la promoción de la mujer profesional del arbitraje y en la equidad de género. También tenemos a RAI Rising Arbitrators Initiative, que está enfocada en árbitros jóvenes o en sus primeras elecciones como árbitro, el ERA Pledge, enfocada en la equidad de género en las elecciones de árbitros. El ERE Pledge con un enfoque en la equidad de género en la selección de expertos. Y también tenemos Mute Off Thursdays, que es una plataforma en línea creada o que nació durante la pandemia por cuatro miembros de ArbitralWomen, en donde mujeres en el arbitraje con más de siete años de experiencia se reúnen todos los jueves por treinta minutos para llevar a cabo un intercambio de conocimiento e ideas. Recientemente, como habrás escuchado, Mute Off publicó el compendio de unicornios es una guía mundial de mujeres árbitros. Y este compendio pretende disipar ese mito de que existe un déficit de oferta de mujeres cualificadas para ejercer como árbitros. Y seguro habrás visto a ciertas mujeres que llevamos un pin de un unicornio. Y es precisamente por la mención que hizo alguna vez un árbitro de que buscar a una mujer cualificada árbitro en el arbitraje internacional era como buscar a un unicornio. Entonces, esto existen esos pins. Si. Si consigo más, pues te mando unos o podemos contactar directamente a Lucy Greenwood, que es la que los reparte. Y esto con respecto a todas estas iniciativas. Isabella, yo la verdad, para mí es un verdadero orgullo que Reed Smith es signatario de muchas de estas iniciativas y sus abogados, muchos de ellos son miembros en casi todas de ellas.
Isabella: Bueno, estaré esperando este pin con ansias.
Rebeca: Total.
Isabella: Creo que bueno, la verdad es que soy testigo también del impacto que este tipo de iniciativas generan en el ámbito del arbitraje internacional y cómo impactan individualmente, pero también a manera de colectividad. Entonces también comparto el orgullo de que Reed Smith sea signatario de varias de estas iniciativas y ojalá esperemos deseando que se acaben estos grupos pronto para que no tengan mucho muchas causas. Y Rebeca también quería hacerte una pregunta que le hice a Elina. Y es sobre la tesis que algunos autores en el campo argumentan sobre el hecho de que no hay un consenso o estudio validado que demuestre que se mejore la calidad de los laudos o la eficiencia del arbitraje por tener árbitros. Mujeres para ti. Cuál es el valor agregado que representa tener más mujeres, árbitros y representantes de parte en los casos de arbitraje internacional?
Rebeca: Bueno, antes que nada, yo sí pienso que el valor agregado es que le da más legitimidad al proceso. Creo que tener la perspectiva no solamente de una mujer, sino de un árbitro, no de grupos diversos. Esto ofrece una perspectiva distinta, quizás a la que no hemos estado, pues anuales o no lo hemos afrontado porque no lo hemos tenido. Yo, por ejemplo, he tenido la dicha de tener al menos una mujer en varios de los paneles, no de los que yo estoy presentando mi caso. Y si bien, pues todos los árbitros siempre han estado a un nivel de profesionalismo, no perfecto. Sí he notado, por ejemplo, que las mujeres tienden a ir un poco más al detalle a ciertas cosas que quizás en otras ocasiones podríamos pasarle por encima, por decirlo así. Y creo que eso tiene que ver más también por la perspectiva que traemos al caso. Entonces, si bien no hay un consenso, creo que tener esa perspectiva agregada o ese potencial de porque estamos hablando no solamente de género, sino esa interseccionalidad de género cultural, raza, esto, lenguaje, cultura o no de venimos de otros países y eso todo es un valor agregado que enriquece y le da una legitimidad al proceso que creo que deberíamos seguir desarrollando y aumentando.
Isabella: Totalmente de acuerdo y muchísimas gracias Rebeca, por esta información, por tus respuestas, por tus experiencias. Lo apreciamos muchísimo y esperamos poder seguir siendo parte de estos proyectos de seguir comentándolo y spread the word en la comunidad internacional de estas iniciativas tan importantes. De nuevo. Muchas gracias por estar acá y esperamos verte pronto.
Rebeca: Gracias, Isabella. Un placer.
Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.
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Transcript is auto-generated.
In this “Spotlight on…” episode, host Gautam Bhattacharyya welcomes arbitrator and SVAMC AI Task Force chair Benjamin Malek (FCIARB) to discuss what led him to a career in international arbitration. The pair discuss the challenges and opportunities presented by new technologies like AI, and how to maintain and improve the effectiveness of arbitration in an ever-changing legal landscape.----more----
Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. With that, let's get started.
Gautam: Hello everyone and welcome back to our Arbitral Insights podcast series, and thank you for joining us. I am delighted to have with us as our guest today, Ben Malek. Uh Hello, Ben.
Ben: Hi Gautam, thank you for having me.
Gautam: It's great to have you with us. Now, I'm gonna introduce Ben, but I'm gonna preface this by saying I love to see new arbitrator talent emerge and I'm unashamed about that. I love to see it. And Ben epitomizes this new number of arbitrators that I just love to see. Ben has got a very interesting background. Uh he's based in New York, but he – I'm gonna share some interesting stuff about him with you all. He's obviously a practitioner of arbitration. He's also an arbitrator and he has great experience of being in private practice and also working for institutions who deal with arbitration. And we'll come to that in the course of our discussion. He also speaks an incredible number of languages, which would, which certainly is something worth noting. So, so obviously, not only apart from English, but he also speaks fluent German, Romanian, Spanish and French, and he can also turn his hand very ably to Italian, Hebrew, Mandarin and Korean. And I'm just in awe of that, Ben.
But so obviously, you can see we're talking uh to, to someone who's truly international. We'll talk a little bit about what you do Ben in the course of this podcast but for our listeners, Ben is with T.H.E Chambers in New York. And as I said, prior to his current role, he has worked in private practice at some major law firms and also with arbitral institutions. So, on that note, a huge welcome again to you, Ben and I'm much looking forward to our discussion. So let me ask you the first thing a little bit about your background because you, you do have a very interesting background just based purely on your geographic origins, your languages and how the world has just seen so much of you. But could you just tell us a little bit about your background and how you found the law and arbitration or conversely how law and arbitration found you.
Ben: Thank you so much Gautam for inviting me such an honor to be on your podcast. I always look forward to the new episodes you have so it's uh it's truly a pleasure. Thank you. So I grew up in Germany. I was born and raised in Germany to Romanian parents and my maternal grandparents wanted to talk German to us because that's what first generation immigrants do. However, they spoke a very broken German because they're German just wasn't that good. So my mother had the idea of them talking to me in Romanian, which was their maternal language. And this way, I would have two languages once I hit kindergarten, which is exactly what happened. I talked Romanian at home until I started kindergarten, which is where I learned German.
So that was the beginning of my duality, I guess. Later on my parents decided that an international school would be best for my brother and I, I have a twin brother by the way. So we went to an international school where languages was really emphasized. I was taught everything in English. English was my maternal language, German was my first foreign language. And that's when I started to really learn my other languages. French became my second foreign language, Spanish became my third foreign language. So by the time I graduated high school I was fluent in five languages. So that was uh extremely helpful at that time, and, uh, that's when I knew that I needed to do something with languages. Unfortunately, and just to give a little more background, I decided to pursue dentistry. I'm not sure if you knew that Gautam.
Gautam: No, I didn't know this. You're a man of many, many hidden talents. Ben, I had no idea. I I know now.
Ben: So I went to dental school and because, because I grew up in, in Germany to Romanian parents, I always wanted to, to understand my origins and see where I'm from. So I went and studied uh dentistry in Romania. So while in Romania, I graduated dentistry, I came back to Germany and actually started practicing dentistry. At which point I realized that that might really not be the best career. And I'll explain why.
I loved the attention to detail. I loved the artistry of it. But the one thing that I really couldn't deal with was talking to the walls. And what do we, what do I mean by that? When patients sit in the chair before you and you talk and their mouth is open, they cannot respond. And I never realized how much that would impact me psychologically. I felt like I was in isolation, I was talking to them and I talked to them in so many languages, but nothing was coming back. So at that point, I realized with my first year of practice that even though I like what I do, I don't think I could do that for the rest of my life. So I decided to go back and study law. And during my last year of law school, I got a job at BDO in Romania. And because of my languages, I was on-boarded on an arbitration which was held in English with a German party and a French party. And because they had somebody that spoke German and French, they decided to save some costs and have me translate. So that was my introduction to arbitration. And I thought it was wonderful. It was absolutely delightful, especially in a country where the judicial system is sometimes questionable in the sense that you may win for your clients, but you win such a small insignificant amount that you can't really consider it to be a win. I realized that arbitration is a true fairness out there and it is accessible.
So it was that moment during that arbitration that I realized and decided to pursue a master's in arbitration, which I ultimately did. I went to the University of Miami where I pursued my LLM. I had the privilege to study under Jan Paulsson, Marike Paulsson, Carolyn Lamm, Jonathan Hamilton. And I really did have the privilege to study under Martin Hunter who has passed away just a few years ago. So it was, it was an amazing masters and that really gave me the basis to start my career in arbitration.
Gautam: Well, now that's an incredible journey and a truly uh a diverse background, a truly a diverse professional background you've had and you know, thank you for sharing those great thoughts. Now figures while you're in international arbitration, because you truly are international Ben, in the truest sense of the word.
Now you've mentioned some amazing teachers that you had in the law who are truly not just first class, they're world class in terms of names. But um I'm most interested to hear from our guests as to who they would say have been their biggest mentors and inspirations in their career. So if you were to look at your legal career, and it's not often that I do a podcast with someone who's a qualified dentist as well as a qualified lawyer. But there's always a first for these things. But in your career as a lawyer, I wonder if you could share with us some of those names who have been your great mentors and inspirations.
Ben: Absolutely. I think all of us owe our entry especially in arbitration to someone as the saying goes, we we need somebody to open the door, we gotta walk through it ourselves, but somebody is always there to open the door. For me I really had, John Fellas was an amazing mentor. I got to know John during my masters and we've kept in touch ever since. What struck me about John was his humbleness and his absolutely striking kindness. I mean, I was a mere student who just got my feet wet and he always made the time, always respected my time, always trying to see how and where he can help me or brainstorm what to do or where to do. It was a true mentorship. And I value that, especially after so many years, I, I wouldn't be here without him.
One more mentor that I can think of is Crenguța Leaua. She's um with LDDP in Romania. Over the years, we've got to know each other. She's just such an amazing practitioner who has truly shown me what there is to do and has helped me or help me guide my way into arbitration. So uh without those two, I wouldn't be where I am. But I would also say I really, I consider that every, every person I worked for in the past, every boss I had potentially got me into where I am.
So that being said when I worked at the American Arbitration Association or the ICDR to be more, more precise, Tom Ventrone was an amazing mentor. I mean, I learned so much from that and it was interesting because I only got to know him once I was at the ICDR. I did, I quite frankly and uh I don't know if I should say this out loud, but I've never heard of him before. Um However, when I was there, I realized that I don't think the ICDR would be where it is without Tom Ventrone and his team. So that was absolutely outstanding.
Gautam: Thank you very much. And you know, some really great names there, Ben that you've given, who've been your real guiding lights in your career so far and you, you're very fortunate to have had all of those people. Now, you've alluded to it in your answer that you just gave and I mentioned it in the introduction that you've worked at major law firms and you've worked for arbitral institutions. I wonder if you could share with us a few things that you've learned by having had the benefit of working on both sides of the fence, so to speak.
Ben: I would say at first when I started off at institutions and in all disclosure, I didn't start my career at the American Arbitration Association, I actually started at CPR Institute in New York. I filled in this case manager after which shortly after I got the opportunity at the ICDR. The one thing I learned was really what an impact an institution can make and what a driving force it is in arbitration. Of course, I've learned and I've been part of adhoc arbitrations and that's when you really start to appreciate institutions and what they can do. So I really do value institutions for what they are. I believe the work is truly in vain. And during my time at the ICDR, I mean, it was high volume, in the sense that we administered many cases. And when COVID hit, it felt like those cases doubled even though they didn't. It was just that the traffic of email because nobody had any, any place to be. There was no traveling, there were no dinners, there were no vacations. Everybody was on their email all the time. But it was uh truly valuable.
You learn how to manage your time, you learn how to manage other people's time and you learn how to truly value time and deadlines and how to set them fairly. During my time at the American Arbitration Association, I was truly privileged to be part of what they call IARC which on the international part is the International Administrative Review Committee. Where different challenges are being discussed and decided upon. So having been part of that and having seen many cases come in and out and the decisions thereof have really helped me to make better decisions as counsel. Once I, I left the institution.
Gautam: I think that amazing kaleidoscope of experience that you had in private practice and with institutions brings us nicely to the next question I wanted to ask you. And this and again, I'll preface it with, again saying how much I love to see new arbitrator talent coming through. I love to see it because we need new talent, fresh blood coming in and you are certainly one of that group. And so I was mentioning that you are with T.H.E Chambers in New York. And I'd love you to tell us a little bit about the work of T.H.E Chambers where you are an arbitrator and including, first of all, if you wouldn't mind what T.H.E stands for a Ben.
Ben: Thank you, Gautam. Absolutely. So, as a young arbitrator, I think it's interesting to see that there are not many out there and if they are, it is always combined with some sort of additional workload, whether that is tribunal secretary or they still work as an associate somewhere else or consultant. It, it it is self explanatory why that happens. Uh But I am privileged, I believe to be part of a small group of young arbitrators. And I, I think it's, it's highly important to understand that even young arbitrators do have a specific know-how that we would not have had 20-25 years ago whenever I'm approached or I'm asked about my expertise, I do unfortunately get the answer oftentimes that people didn't realize that a young practitioner could have so much experience or could have the pertinent know-how. And I think that's where arbitration really expanded and advanced in the last decade or two.
We have master degrees at, at so many universities throughout the world. We have so many courses and we have so many practitioners willing to talk and mentor people that it is truly possible at a younger age to become an arbitrator.
Gautam: I completely agree and if I'm not mistaken, the, you know, the, T.H.E Chambers stands for Tribunals, Hearings and Enforcement, is that correct Ben?
Ben: That is correct. Absolutely. Yes, thank you. So, when I started off sitting as an arbitrator, I was approached and, and I happily work with Arbitra International out of London as a transitional member as they call it. And when thinking about it, I had two options. I could either say this is Benjamin Malek arbitration or I could start something bigger. And that was my goal.
So when starting T.H.E Chambers, which as you said, stands for Tribal Hearings and Enforcements, the big challenge was what I call it. And despite the fact that T.H.E, it, it looks very nice together as ‘the’, um it does stand for tribunal hearings and enforcements. And that is because I believe that those are the core points that any practitioner will always look for. Uh you need to have a tribunal for an arbitration, you need to have a hearing, any sort of hearing un unless it's a paper arbitration. Um And then the, either the arbitrator or the parties waive the hearing and you gotta make sure that any award is enforceable. So from my council of work that I started off with at the beginning of T.H.E Chambers, that was my expertise, the enforcement part of it. Uh that was also one of the most important aspects that I dealt with while at the ICDR when a case comes in that was the first question. How does the case look and will the award be enforceable? So that is one thing that I definitely learned at the institutions and that I carried with me to always look at the arbitration from the end rather than from the beginning, which is the enforcement stage. T.H.E Chambers - that's what it stands for. Currently it is set up to on board more younger arbitrators worldwide because of COVID and then changes in COVID, we haven't gotten there yet but I hope we'll get there very soon.
Gautam: I've got no doubt you will. And you know, and as the saying goes, if anyone's good enough, they're old enough. And there's no doubt that you and the team bring a lot of great energy and insight into arbitration and it's certainly not something that should be homogenous. So it's fantastic to know that you can bring all your talents to bear. I want to turn next to another aspect of what you do because I know that you are a member of the Silicon Valley Arbitration and Mediation Center and particularly its Artificial Intelligence task force. Now, one of the things that all of us will be very well aware of is that artificial intelligence, AI, is an incredibly happening concept. It's developing and it'll develop more and more and it has its role and will have its role in arbitration. I know that you've been part of the team that's been looking at guidelines for the use of artificial intelligence in international arbitration. And I wonder if you could just share some of your thoughts as to what the potential usage of artificial intelligence might be in international arbitration and some of the risks and issues that we should be aware of.
Ben: Yes, thank you. So I have been a part of the Silicon Valley Arbitration Mediation Center for quite some time and um when the New York case versus Avianca came out where the claimants council used chatGPT to come up with cases and, and I use that word deliberately, ‘come up’ with cases to use against Avianca. It turned out that all of those were in fact made up by chatGPT as uh what we would call hallucinations. The judge dismissed the case and uh actually sanctioned the attorneys. To that point, I realized that it is only a matter of time until this issue flows into arbitration, especially arbitration. We work in so many jurisdictions with so many different parties.
And specifically, since COVID, most arbitrations have been online, some have stayed online, some still have a hearing component in person, but most of it is online. And the big question was, do we need guidelines for the use of artificial intelligence in arbitration? So I had discussed that with the leadership at the Silicon Valley Arbitration Mediation Center and they gave me carte blanche to see what we can come up with so I was privileged to have a team of experts help me draft the guidelines for the use of AI in arbitration. My team was composed of Elizabeth Chan in Hong Kong, Orlando Cabrera in Mexico, Sofia Klot in New York, Dmitri Evseev in London, Marta Garcia Bel, which now is in New York, Soham Panchamiya and Duncan Pickard in New York. I was truly blessed, I would say to have these colleagues. It became a true adventure that we all went on when we started discovering what AI could potentially do and what could potentially be prevented. So we took around nine months to draft guidelines. We had no timeline, but we did come up with what I would say good guidelines or a good basis of guidelines in October, we have put it out for the public to comment on. Uh the commenting period is still open until December and institutions can comment until February. And the goal is not to come up with guidelines that people can use, but to get a full consensus of the arbitration community on how they would like to use these guidelines and what they believe is relevant. If something is not relevant, then there's no reason for us to have it in there. So that was the whole idea behind it.
The other aspect we were looking at was when it came to cybersecurity, each institution came up with their own guidelines and quite frankly, they use different words, but they're saying the same thing. And we are hoping to avoid having several guidelines on AI and to comprise it all into one. I think it's gonna be a very difficult task. I'm not sure we will succeed, but we are giving all institutions the opportunity to give their input or it submits their commentary to the guidelines so that every practitioner could look into the commentary for the respective institution when the case goes to arbitration. We were looking at several aspects regarding the use of artificial intelligence in arbitration.
Two main aspects are disclosure and confidentiality. With regards to disclosure, we actually have an open option for the community to vote on. And that is whether a two prong test should be used to decide whether a party or the arbitrator should disclose the use of artificial intelligence or whether it should always be up to the parties to decide or to as the tribunal for opposing party to disclose the use of artificial intelligence. We weren't sure internally, we debated heavily and we came to the conclusion to leave that question up for the public to decide on. Um it did come back or as of now, the results are interesting, which is that in Europe, there is a more libertarian approach. Whereas uh the US and some common law jurisdictions voted for a two prong test, which I believe to be quite interesting, uh quite frankly. Um if this continues to be open ended, we might leave it up to the parties to decide which option they would ever put in. But ultimately, the goal is to draw awareness of the use of AI to let parties and arbitrators as well as council understand that artificial intelligence is not open ended. That if it's used outside a closed circuit information can be leaked or can be disclosed one way or another and to just draw attention to the fact that A I can only be used to disclose information, but also to create other sorts of the information that would otherwise not be there. Whether that is good or bad will be up to the parties to decide, but it is important to understand what AI can do and what the consequences are.
Gautam: I agree with you and it's something that's gonna develop and develop. There's no doubt about that and we've not seen the last of it. I mean, it's gonna be happening for sure. And we just have to see what does transpire, but look, thank you for your great work on everything you're doing. You're not just, you know, doing arbitrations, you're doing thought leadership, you're driving all of these things and it's really great. And uh I'm just, you know, and I look forward to talking to you more about these things as these things progress. Now with these podcasts, we, we always end our podcast with a little bit of lighthearted conversation because I think our listeners will have got a really good handle on your incredible talent in the course of this podcast, your thoughtfulness and your experience. What I want them to also get a feel of is some of the more fun side of things.
Now, I know Ben that you are a very proud daddy to a couple of daughters, one of whom is really a newborn. And uh, and I've, and I'm just so ecstatic for you and Rebeca on your two daughters. But let me ask you this when you do have some spare time from not being a, a very busy daddy as well as a very busy arbitrator. What sort of music do you particularly enjoy listening to? Have you got any favorite bands or groups or singers or even a favorite album that you love to play?
Ben: Regarding music that's an interesting topic. Before I went on my dentistry career I actually worked in music management.
Gautam: you are so multitalented. It's unbelievable. Go on. Sorry. I just could not resist saying that.
Ben: Yeah. No, thank you. It's uh I, I just like life. I like life. Life is important. It's what drives us. I will say this and, and you know, thank you for the question. But we all live to work, but we also work to primarily live. And I think it's really important to, to, to know that I always believe that one of the most important things in life is to live and to know how to live. So, uh I did get into music management very early in my life. We were host to several big names, but to answer your question, my favorite music, as I always said is good music. I especially nowadays where the charts are filled with explicit lyrics. I actually like to go back to the Beatles. The Beatles are one of the foundations I believe of modern music. Now, given the fact that a new song was actually just released with the help of AI, I think that it's, it's worth to go back and, um, and really understand the changes that as Sir Paul McCartney, um and his colleagues have made. Yeah, I would definitely call The Beatles my favorite music.
Gautam: Oh, fantastic. Well, it's, you know, that's a great choice. And, uh, you know, again, as a first, I've never done a podcast with someone who worked in music management, then who, who became a dentist and then became a lawyer and who can speak about 10 languages. So this is a complete first for me. So let me just ask you one last question in this podcast. So, you know, you are a very international person and we ascertain that just from speaking to you in the course of this podcast and you've no doubt traveled very widely because you've worked around the world in many places. Is there one place apart from where you grew up, okay, so excluding that, is there one place in the world - and excluding New York where you live - ok, Is there one place that you just love traveling to?
Ben: Oh. That's a difficult question. I would have to say, I've always enjoyed traveling to London. My brother is actually a physicist and he did his PhD in Cambridge. I thought those were the most fun trips I've ever had. To fly to London Cambridge is, is amazing. Uh Whoever hasn't been uh it is really missing out. London is just stunning. I mean, the amount of history and just the culture and the multiculture you have. It's, it's just, it's great. Um I guess uh deep down I am a European so London is always there. Paris is absolutely yeah, romantic. I mean, I am married with two kids so Paris is always, it is always a good idea.
Gautam: Yes.
Ben: Yeah. The only thing I would add is I love, I would love to see more of the world. I do want to travel and see places. I I've never been, I haven't been to Australia yet, but in general, I would love to go see, I hope to go to Hong Kong maybe during ICA, maybe not, but just to see Hong Kong and see uh see more than I have seen yet.
Gautam: Fantastic. Well, look, Ben. Thank you. It's been an absolute delight to speak to you in this podcast. Thank you for being such a superb guest and for sharing all of your stories and your background, your thoughts. And uh I look forward to seeing you very soon. You know, I hope you'll because we're recording this podcast on a Friday. So I hope that you will have a great weekend and I look forward to seeing you in person soon. Thank you.
Ben: Thank you so much Gautam, Likewise. And if I may just end on one note, I do wanna thank my wife. I don't think I would be the person I am without her. And she inspires me to be a better person every day.
Gautam: You know that I, I think that's so fitting Ben. And I'm gonna say this in response, I'm going to say two quick things in response to that. One, you're absolutely correct because I have the great honor and privilege of knowing Rebeca. And I know that she's a wonderful, wonderful lady and you are indeed very lucky to have her. And I also will say the second thing I will say is that many years ago, a judge got sworn in as a Supreme court judge here and one of the former Supreme court judges who was giving a speech when he became a judge said that behind every successful man, there's a surprised woman and Rebeca shouldn't be surprised at how successful you've been. But you know, you are very fortunate to have her. So thank you for mentioning her.
Ben: Thank you. And thank you for having me, Gautam. It was an absolute pleasure looking forward to meeting you in person.
Gautam: Looking forward to that.
Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome, any views, opinions or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
All rights reserved.
Transcript is auto-generated.
In the latest episode of our Greener Arbitrations podcast series, Alison Eslick and Vanessa Thieffry moderate a spirited debate between Michelle Nelson (Dubai) and Clément Fouchard (Paris) as they explore the pros and cons of electronic signatures and notification of awards, including discussion on recognition and enforcement, cost savings, technology challenges, convenience, security risks and resistance to change.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers.
Welcome to our Greener Arbitrations podcast miniseries where Reed Smith's International Arbitration lawyers will be exploring the legal and technical issues involved in reducing the environmental footprint of arbitrations. I'm Alison Eslick, an International Arbitration lawyer at Reed Smith's Dubai office and I am Vanessa Thieffry, an International Arbitration lawyer at Reed Smith's Paris office. In these episodes, we will hear from leading arbitration practitioners and external speakers and discuss insights, news and trends relevant to greening arbitration and the challenges that are entailed. We hope you enjoy this episode.
Vanessa: Welcome back to another exciting episode of Reed Smith's Arbitral Insights. I am Vanessa Thieffry and together with Alison Eslick, we are delighted to host the sixth and final episode of our Greener Arbitrations miniseries in which lawyers of Reed Smith debate, how to reduce the environmental footprint of arbitrations. In 2022 Reed Smith launched an initiative to reduce the environmental footprint of our arbitrations. We quickly identified the need to raise awareness both internally and externally and organizing a podcast miniseries on greener arbitrations appeared as an obvious tool to do that. In the five first episodes, we addressed arbitration agreements and whether they should include sustainability measures, the campaign for greener arbitrations model procedural order and whether it was unavoidable. The topic of hard copied submissions in which we wondered if they were a thing of the past witness and expert preparation and whether video conferencing can match in person meetings and in person hearings and whether they are still worthwhile. If you haven't listened to them yet, they are available on Reed Smith's podcast channel, Arbitral Insights.
Alison: Thank you, Vanessa. Now, in this episode, we focus on the entire points of going to arbitration and that is of course obtaining an enforceable award. So recently we see more and more institutions notifying awards by email and arbitrators signing awards electronically. Now this may well be greener, but when it comes to something as important as the final award, is green always better? So that is the question that our debaters will tackle today. I do have a short disclaimer as we always do with these debates, our debaters have been assigned the positions that they are advocating and this is so they can fully advocate for or against the proposition. The debate is of course role playing and none of the views expressed during the debates should be attributed to Reed Smith, the debaters themselves or of course any of our clients. So joining us today for this challenging topic, uh Reed Smith partners Michelle Nelson and Clément Fouchard who will present their primary positions and then each will have a chance for rebuttal.
Vanessa: Thanks Alison. Let's see what our first speaker has to say. Clément Fouchard is up. Clément is a partner in Reed Smith's Paris office in the Energy and Natural Resources Group, focusing on international commercial and investment arbitration. He has over 16 years experience advising on major litigation and arbitration proceedings in particular in complex disputes in construction, energy and infrastructure, mining defense and distribution sectors. As well as considerable experience with joint ventures, imposed acquisition disputes. In addition to acting as counsel Clément acts as an arbitrator in domestic and international arbitration. Clément, the floor is yours.
Clément: Thank you, Vanessa and Alison. I'm very happy to be with you today and to argue in favor of green arbitration, electronic signature and notification of rewards. Is green always better? So yes, green, that is the use of electronic signature and electronic notification of rewards is always better. And I will explain why. First a definition, an electronic award or e-award is an arbitral award that is signed digitally by the arbitral tribunal and emailed to the parties directly or if an institution is involved for transmission to the parties by the institution.
First, I will start by saying that the appeal and desirability of electronic awards cannot be denied. In a survey published last year in the Journal of International Arbitration, questions were asked to leading arbitration institutions regarding the use of and practice of electronic awards. The participants overwhelmingly agreed that electronic awards are faster, 95% of the response. Cheaper, 85% and better for the environment, 80%. So let's look at those three criterias. First of all speed, while it is true that in some jurisdictions, it may take time to obtain a detailed signature for the first time. It cannot be denied that an award can be signed by the three arbitrators and sent to the parties by email in a manner of minutes. The same cannot obviously be said for hard copies awards that need to be printed out, circulated among tribunal members for signature and hard copy original notified by courier service.
As to cost, now again, there is little doubt that an electronic awards are most certainly cheaper since they can often be prepared at no cost at all given that one, e-signature software are often for free and two, the sending being done by email, there is no additional cost and this is to be compared with courier service costs for all the back and forth required to have the award being signed by all members of the tribunal and then harm to the environment when electronic awards save paper because they do not need to be printed. This is abuse and reduce the emission of greenhouse gasses because they do not require physical transportation. Of course, electronic rewards are not entirely without carbon footprint, either data storage and related energy consumption have a certain, albeit, I submit a very small impact on the environment, however, the data storage needs of a paper award are in practice greater than those of electronic award. As to the COVID-19 crisis, put the world on hold. The legal community, and international arbitration in particular had to adapt and they actually adapt in a new way of working where online meetings and online hearings, it became the norm.
So looking at e-signature of arbitral awards, there is clearly a growing trend amongst the major arbitration legal system, the vast majority of arbitration laws and institutional rules require the award to be in writing and to be signed. These requirements have primarily evidentiary functions and they have therefore little to do with the written text in digital or tangible formats. And this is the same situation regarding e-signature awards which will depend upon the electronic signature law, which in most cases would in principle allow the e-signature of arbitral awards. The New York Convention does not prohibit the electronic signature of awards and therefore most reductions should permit the arbitral award to be signed with any signature of awards. The issue of e-signature should be assessed, therefore, as the applicable at the applicable law level in this respect, we note that there is a growing number of jurisdictions allowing the signature of arbitral awards electronically. Looking first at France, Article 1366 of the French civil code provides that an electronic document has the same evidential value as a paper document provided that the person from whom it originates can be duly identified and that it is drawn up and stored in conditions that guarantee its integrity. So as we can see, the focus is made on the originality and the integrity of the electronic documents. Once this requirement is satisfied, French law grants the electronic document the same evidential value than a paper document. The legal framework dealing with the authentication of e-signatories has been based in France on the requirements of the EU regulation which deals with electronic identification and trust services for electronic transactions in the internal market. So we have actually a legal framework in place and I could continue with the United States with the Uniform Act of 2000 which requires that an award must be signed or otherwise authenticated by an arbitrator. An arbitrator can therefore sign an award with an electronic signature. In the UK, the draft reform of the English Arbitration act explicitly unfazed that there was no need for an explicit reference to electronic signature and notification of words as these are already authorized and I can continue on and on.
As to e-notification, the arbitral award uh is also on the rise. Taking again the example of France Article 1519 paragraph three of the French Code of Civil Procedure states that notification of international arbitral awards shall be made by service, meaning by bailiff, unless the parties agree otherwise. This means that the parties can agree to another means of notification such as in the context of ICC arbitration, the electronic notification of awards by ICC Secretariat. So in conclusion, I submit that those solutions in e-notification and e-signature of rewards are more and more used and should be the preferred way in the international arbitration practice.
Alison: Thank you very much Clément, some excellent points made there. And I do remember printing those thousands of pages back in the day. So let's see what our second speaker Michelle Nelson has to reply. Michelle Nelson is a partner in Reed Smith's Dubai office. She sits in our global Energy and Natural Resources Group. Michelle is a specialist arbitration lawyer with 27 years of experience advising a variety of clients on oil and gas and construction disputes. She is a qualified solicitor advocate. She sits as arbitrator on regional disputes and also has rights of audience before the DIFC courts. And I do have to mention that she is the only female in the Legal 500 Hall of Fame for Construction and has been ranked in the 2024 edition of Who's Who Legal for the Arbitration category. So Michelle take it away.
Michelle: Thank you very much, everyone and I'm delighted to participate in this Greener Arbitration podcast series and particularly on the topic of e-signatures and e-notifications of arbitral awards. I've been tasked today with arguing against the proposition that my colleague Clément put forward and specifically why in the case of e-signatures and e-awards, a greener approach is not always best. So my colleague Clément made some interesting points but there are fundamental reasons why parties should cautiously approach e-signatures and e-notifications of awards, even if they are better for the environment. A point which certainly from my side is itself is debatable, but there's specifically three points against the proposition that I'm going to be considering in some detail.
First, the end goal of any claimant in arbitration is to have an enforceable award. And I think Clément agrees with that proposition. Whilst e-signatures and e-notifications of awards may well be a greener option, they will not necessarily be valid and enforceable in every jurisdiction and this requires a cautious case by case approach. If the award is unenforceable, then greener clearly is not better.
Secondly, parties and tribunals who accept e-signatures and e-notification of awards open themselves up to a host of potential cybersecurity and data integrity risks. Even the largest law firms and the most prominent barristers chambers have been victims of hacking and data leaks. And as the world becomes increasingly more reliant on digital technology, these risks are expected to increase. This is the downside or perhaps I should say the dark side of opting for e-signatures and e-notification of awards.
Thirdly, I have to question whether my opponent's claims that e-awards are demonstrably better for the environment at all. I suggest that in practice, the positive environmental impact of signing an award with an e-signature or notifying an award by email has perhaps been grossly exaggerated by my opponent. Whilst one could argue that every little bit counts, there are several other areas of arbitration and we've, we've, we've heard about those in terms of the printing of bundles and thousands of pages of submissions and issues of virtual hearing e-bundles and the like which certainly I would suggest should be prioritized. So taking down each one of these points.
Firstly, the issue of enforcement now arbitration, in contrast to other ADR mechanisms has the advantage of a binding decision at the end, making it a viable and well established alternative to traditional litigation. Any doubts about enforceability of an award puts at risk, the whole purpose of the arbitration itself. The use of e-awards and e-signatures is particularly risky in the context of international arbitration. Each jurisdiction has its own different requirements as to the validity of enforceability of awards ranging from the need for a wet ink signature to an originality requirement where it will be expected that a hard copy original award will be provided. Awards with e-signatures, or that have notified by email only, will not suffice and are likely to lead to increased costs and prolonged legal battles around enforcement.
Now, my opponent Clément gave a shopping list of examples of countries which theoretically allow for e-awards. Yet the countries mentioned only included Western European countries and the U.S. So I do have to ask, what about the rest of the world? e-Awards may not be enforceable in a number of countries. So care must be taken. Whilst I accept my friend's argument that national courts of some countries are moving towards acceptance of digital methods, we simply aren't there yet. The suggestion that scholars may argue that e-awards cannot be challenged will not give clients much comfort when a court says no. Here in the UAE for example, there are currently a number of cases in the courts and have been sent to the courts where nullification proceedings have been put on hold. Whilst the tribunals have actually been told to go away and reissue awards and sign them in wet ink, which not only of course, is increased time, it causes increased cost as well. And the risk the award will not be enforceable in any event. I should note that the Chartered Institution of Arbitrators has also given some reluctance in its guidance and said that even though digital technology is rapidly becoming a widely accepted business and legal tool, it's advisable to keep key procedural documents in both soft and hard copies containing signatures of participants where necessary. So again, this is suggesting a cautious approach.
So the bottom line, I would say any party considering use of an e-award or e-signature perhaps should obtain an opinion from local council first to make sure that there is not a risk in that individual jurisdiction. Clearly greener is not better if the award is unenforceable.
Secondly, although data security risks are inherent in any form of electronic communications, the stakes are higher when it comes to e-awards due to their commercially sensitive and confidential nature. Confidentiality is one of the many factors that makes arbitration more attractive than litigation. Yet, a cybersecurity threat puts this at risk. Big businesses may well have excellent firewalls but many arbitration parties are smaller businesses without top class IT support. When it comes to a final award there are good reasons why it's worth having a hard copy in your office safe. And doubts could also be raised as to the authenticity of e-signatures used and the award itself.
For example, courts may question whether the integrity of the e-award has been preserved and whether or not the award was safeguarded against later modification. One can imagine an enforcement scenario where a fraud has been committed and local courts do not have the means to authenticate thee-award, even if the local law ordinarily permits its enforcement. Now, I accept my friends point that some jurisdictions including the EU and specific EU countries like France have taken regulatory steps towards developing a framework to protect against forgery and other mischief involving e-signatures. But again, this does not include the majority of the world's countries. And in fact, underscores the very real risks that e-signatures present. And statistically, I think it's right to say that much of the world's users of arbitration is not necessarily in the EU.
As for e-notifications, email does not provide the same level of certainty as a courier delivered and signed for paper award, a standard email will not inform the sender as to whether or not the recipient had received it, the email might be shown as sent however, there's no certainty as to whether it has in fact been delivered and given the sheer volume of email traffic, one could even imagine a scenario where a party misses that all important email. And if the award needs to be annulled time will be ticking to file those proceedings with irreversible consequences if a time bar is missed.
So lastly, even if one were to disregard all of the things that I've said so far, we need to consider whether or not e-awards make a significant difference for sustainability. My friend was keen to point out the benefits of online hearings, general correspondence and so forth. But this debate is focused on e-signatures and e-awards. Now I accept that it is not ideal to fly several copies, an arbitration award around the world to be signed by three arbitrators and then delivered to the parties. Yet in the grand scheme of an arbitration carbon footprint, it is a relatively small package being carried on a large airplane that was making the trip anyway. While arbitrations do have a significant carbon footprint, studies show that energy use powering law firm offices and air travel for in-person hearings are the top two biggest causes of CO2 emissions in arbitrations. Apparently 92.7% of carbon emissions for hearings come from flights alone that if we really want to make arbitrations greener, our priority should be on those areas instead.
So in closing, it comes down to a cost benefit exercise. Parties should ask themselves whether the benefit of a small reduction in paper waste and CO2 emissions is worth the risk of an unenforceable award. Indeed, a recent Queen Mary International Arbitration survey confirmed that participants are generally not overly enthusiastic about receiving an e-award. Only 14% stated that they wanted awards to be signed electronically. It seems that people have spoken and would agree with me that when it comes to e-awards, greener is not always better. Thank you.
Vanessa: Thank you, Michelle. There are some very compelling arguments here. Both sides have made extremely strong arguments but how do we tell them apart? Well, it's time for rebuttal starting with Clément. Clément, what do you have to answer to Michelle?
Clément: In response to Michelle's very interesting points I will limit myself to the following three remarks. First, as to enforcement of awards. As I said earlier, the question of enforcement must be resolved by looking at the applicable law and national solutions may vary from one region to another. That said, I also note that one, the New York Convention is silent on the delivery of the awards to the parties and two, although the risk regarding enforcement of e-awards has been expressed in relation to the formal requirements of an award, question of due process or international public policy, the reality is that e-awards cannot in fact be seriously challenged on those grounds. As mentioned earlier, formal requirements have in reality very little to do with the format digital or tangible of the substantive text of the award.
As to due process requirements, a party must be given proper notice of an arbitral proceedings. And nowadays, emails are an accepted mode of giving notice while there are issues such as being unable to prove when a party receives an email. Email software has made it simpler for a sender to be notified if the receiver of the email opens a particular email by creating provisions of read receipts. And for instance, in another instance, the High Court in India has held that a notice sent on WhatsAppp was actually good service. And finally, the rendering of e-awards does not breach international public policy as we actually failed to see what would be the valid ground in this respect.
Two on cyber security and online arbitration, I've listened to the legitimate concerns raised by my learned colleague. While these concerns should not be ignored, I submit the risk is that link, again I would say, to the form of the original award electronic or paper because in either case, the arbitrators can be hacked and the award tampered with. The reality is that both wet ink and e-signatures can be forged. And the difference lies in reality in the way in which the fraud is proven or discovered for a paper signature with the help of an expert, a graphologist expert, and for the electronic signature with the help of an IT specialist. The real issue is how to ensure that the signature on the award is not forged. As to online signatures are used additional requirements may be imposed. In application of the EU regulation mentioned earlier, French law, for instance, has created four different levels of security in which signatures can be categorized. The two highest levels are recommended to companies for their contracts and agreements where e-signatures are certified as having the same value of a paper hand signature. And there are numerous specialized IT platforms, and I will mention for instance, DocuSign, which has been certified by the French government to ensure the integrity of e-signatures.
Last points, e-signatures and notification of awards in arbitration constitute a means to tackle the climate change problem. As it allows to reduce, reducing the impact of arbitration on the environment. They have a direct effect on paper consumption. And two, they have also an impact in reducing the need for air travel. As we know every step count and as international arbitration is taking the green transition turn e-signature and e-notification of rewards must be adopted on a wider scope. Thank you very much.
Alison: Ok. Our time is up for this episode and we would like to thank warmly Michelle and Clément for their time and precious insights on this topic.
Vanessa: This was our last episode for this miniseries on how to reduce the environmental impact of arbitration. But we will revert soon with a new topic. Until then, thank you for listening to our Arbitral Insights Greener Arbitrations podcast series. We hope you enjoyed it.
Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com, and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice, and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
All rights reserved.
Transcript is auto-generated.
James Willn, Ana Ulseth, Chris Edwards and Mathilde Adant debate the environmental impact of in-person vs. remote hearings. Hosts Alison Eslick and Vanessa Thieffry moderate the session in which debaters discuss technological issues, security challenges and the financial and psychological impacts of remote hearings.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. Welcome to our Greener Arbitrations podcast miniseries platform where Reed Smith's international arbitration lawyers will be exploring the legal and technical issues involved in reducing the environmental footprint of arbitrations. I am Alison Eslick, an international arbitration lawyer at Reed Smith's Dubai office. And I am Vanessa Thieffry, an international arbitration lawyer at Reed Smith's Paris office. In these episodes, we will hear from leading arbitration practitioners and external speakers and discuss insights, news and trends relevant to greening arbitration and the challenges that are entailed. We hope you enjoy this episode.
Alison: Welcome back to another episode of Reed Smith's Arbitral Insights. I'm Alison Eslick and together with my colleague, Vanessa Thieffry. We are delighted to host the fifth episode of our Greener Arbitrations mini series where lawyers of Reed Smith debate how to reduce the environmental footprint of arbitrations. In 2022, Reed Smith launched an initiative to reduce the environmental footprint of our arbitrations. And we quickly identified the need to raise awareness both internally and externally and organizing a podcast mini series like this on Greener arbitrations appeared a really obvious tool to do that.
In the first four episodes, we address these topics: arbitration agreements and whether they should include sustainability measures, the campaign for Greener Arbitration's Model Green Procedural Order and whether it was unavoidable, the topic of hard copy submissions and whether they were a thing of the past, and witness and expert preparation and whether video conferencing can really truly match in person meetings. So if you haven't listened to the podcast yet, please do tune in. They're all available on Reed Smith's podcast channel, Arbitral Insights.
Vanessa: Thank you, Alison. So in this episode, we focus on the hard part hearings and more particularly whether in person hearings are worth their while. As compared to virtual hearings with the COVID-19 pandemic, we kept on arbitrating and the arbitration community got into the habit of virtual hearings. Although at first voices of concern and caution were raised in the aftermath of the pandemic. Virtual hearings remained and in-person hearings often have a drastic environmental impact. A case study recently revealed that for a given arbitration, the in-person hearing gave rise to 19 times the carbon footprint of a virtual hearing. Mostly because of the flights of the arbitrators, experts, counsel and witnesses, et cetera, all these people involved with the hearing to get to the hearing venue. So a few, few years back, let's take stock. Are in-person hearings still worth their while?
Short disclaimer, please note that for the purposes of these podcasts, our debaters have been assigned the positions that they are advocating. This is because we felt that topics would be better explored if one team fully advocated their position for or against the proposition. The debaters are thus role playing and none of the views expressed during the debates should be attributed to any of the individuals participating in the debates or Reed Smith or any of its clients.
Alison: With that said Vanessa, let's start. The first speaker of each team will make their arguments for and against the proposition and a second speaker will make a rebuttal. So the first speaker up is Ana Ulseth. Ana is an associate in Reed Smith's global Commercial Disputes Group in our Miami office. Her practice focuses on international dispute resolution across a myriad of sectors including complex litigation in state and federal courts as well as international commercial and investment arbitrations. Now, Ana is also an eager Reed Smith Greener Arbitrations ambassador. So, Ana, the floor is yours. Why are in person hearings worth their while?
Ana: Hello, everyone. And thank you Alison and Vanessa for the kind invitation to join you. I'm thrilled to be here discussing this pivotal topic. In-person arbitration hearings are worth their while. And when I say this, I rely on two main points. First, it is easier to safeguard due process concerns in in-person hearings. As we know, a hearing is one of the most pivotal important junctures in an arbitral proceeding. Generally, a hearing encompasses the exchange of arguments and evidence. The ability to be heard and mount your case or defense is a cornerstone of due process and the requirements of procedural equality and fairness permeates all faces of an arbitration. Article five of the New York convention sets forth limited grounds on which recognition and enforcement of an award may be refused. One of those grounds includes when a party is otherwise unable to present their case as a ground for refusal. Being able to present arguments and evidence in person significantly aids in the conduct of a proceeding that is compliant with due process principles and that helps to secure the sanctity of an award. Everyone from council to the tribunal has more control over the proceeding during in-person hearings. Things like cross examinations and breaks along with any last minute issues that may arise are easier to address when you have everyone in one room.
Now, due process or equality may be infringed upon by technological issues experienced by parties during a virtual hearing. For example, if one party is affected by technological issues but not the other this may infringe equality in an ongoing proceeding. Additionally, although the tribunal has the discretion depending on the arbitration agreement and applicable rules or treaties to assist the parties with the determination of whether hearings will be in-person or virtual. This raises potentially challenging questions regarding how the tribunal can make the right call when the parties are in disagreement. Some questions that might arise here are, how will the tribunal ensure that the decision making process is fair to both parties in determining whether to require in person or virtual hearings? What test can be applied and how will the burden of proof be taken into consideration to ensure the ruling is fair and equitable? At the end of the day as council, we have a responsibility to provide zealous advocacy and act in the best interests of our clients. Certainly, this includes preserving the sanctity of an award and indeed, this is more easily achieved in-person.
As to my second point which is closely related to the first, in-person hearings provide counsel with more control over the entire proceeding. Various surveys have shown that parties have trepidations about virtual hearings. These trepidations include beliefs that it is harder to concentrate during a virtual hearing than it is during an in person hearing, that virtual hearings may be less secure or confidential. But the impact of any witnesses cross-examination might be diminished by virtual hearings. And that if virtual hearings are to be widely used changes will be required to the civil procedure and arbitration laws of certain jurisdictions. Additionally, virtual cross examination may also not be helpful if there are audio or video distortions, freezing of images or time lapse. Certainly behaviors observed virtually can more easily be over-interpreted or simply erroneously interpreted. Moreover, as advocates, our opening and closing statements are physically and intellectually demanding performance tests. There is a tangible advantage to subjecting opposing counsel and witnesses to these demanding experiences in person. There is no question that virtual hearings are more comfortable for everyone but comfort is not our guiding principle. And while virtual hearings are certainly greener and better for the environment, we should only opt for them if and when it is in the best interests of the client and their case or defense.
Lastly, on this point, nonverbal communication is very challenging to understand in virtual hearings. Our job as advocates is to facilitate the tribunal's decision making process. A variety of studies has shown that a range between 55% to 93% corresponds with non-verbal communication. And this is facilitated in in-person hearings in the same room as the tribunal, the witnesses, the parties and the experts. In essence, to sum up my argument, the potential for connectivity issues, frequency of breaks and unexpected interruptions are higher with virtual hearings and have the potential to affect the due process of a proceeding.
Vanessa: That is a very strong argument. But let's see what our second debater, Mathilde has to reply. Mathilde is an associate in our Paris office and her practice focuses on international commercial arbitration, especially in the construction and energy sectors. She is a part of our Energy and Natural Resources Group. Matilde will now advocate the position that in-person hearings are not worth their while.
Mathilde: While Ana has made a compelling case for the enduring merits of in-person hearings, I will present the reasons why their benefits do not outweigh the virtues of virtual hearings. My starting point is maybe the most obvious downside of in-person hearings which is their environmental impact. International arbitration generally involves parties from different countries or continents. And in this context, virtual hearings minimize travel for all participants including arbitrators, parties, council experts witnesses and court reporters. They also eliminate the need for extra physical infrastructure such as venues and offices which typically contribute to a significant carbon footprint.
Second, contrary to what we can sometimes hear making an environmentally conscious choice in favor of virtual hearings does not have to go against efficiency, due process or the client's best interests. Nowadays, technological advancements have made virtual hearings effective and secure. We now have access to high quality video conferencing, secured through robust encryption mechanisms and cybersecurity measures as well as advanced tools for evidence presentation. These technological advancements are perfectly able to ensure the integrity and fairness of the arbitration process. Any concerns regarding technological glitches and data security can be mitigated through continuous improvement and investment in robust technology infrastructure. Furthermore, technology has evolved to bridge the gap in conveying nonverbal communication through, for example, uh video conferencing, screen sharing and advanced virtual collaboration tools. Virtual appearance can also be less intimidating for witnesses which may look for a more open and honest communication.
A third point in favor of virtual hearings, which may be more convincing to clients in particular is the fact that they allow parties to save time and costs. As we know, traditional in-person arbitration hearings can be very expensive. They add to the already significant legal costs, costs of travel, accommodation, meals, as well as the costs of renting the hearing venue. All these costs are significantly reduced in a virtual hearing. Virtual hearings can also save a considerable amount of time. They eliminate the travel time for all participants and substantially reduce the time spent on logistics and administrative matters such as securing venues, making travel arrangements and so on. Beyond this, the flexibility and convenience of virtual hearings means that they can be scheduled more easily and that they can be conducted more efficiently. For example, because they allow for the use of time saving tools such as simultaneous interpretation, shared screens or chat features. This reduction in time spent by arbitrators consulting experts also reduces costs for clients. And this decrease in costs also means that individuals or entities with financial constraints can participate without incurring travel and accommodation costs. This makes arbitration which is often considered expensive, more accessible as a dispute resolution method. So as demonstrated by these numerous benefits, the incorporation of technology into legal proceedings makes virtual hearings not only a formidable contender but the ultimate victor over in-person hearings.
Alison: Thank you very much, Mathilde. Wow. I mean, I find myself conflicted and agreeing with both Ana and Mathilde at the same time. So let's test these arguments further. We now move on to rebuttal. Uh and Chris Edwards will take the floor. Now, Chris is a council in our Dubai office and a member of the Energy and Natural Resources Group. He has over a decade of experience advising clients on the complete life cycle of construction projects and disputes across the Middle East, Africa and Asia. So Chris, I believe you will advocate for the affirmative.
Chris: Hi everyone and thank you to Vanessa and Alison for inviting me to join this podcast today. I want to start by addressing the presumed environmental impact of virtual hearings. And I think there are a number of assumptions that are made about the green credentials of virtual hearings and also in person ones for starters virtual hearings may still require travel, virtual hearings are rarely ever conducted from each person's home. Participants will often congregate across hubs. For example, arbitrators may sit together or the parties and their respective lawyers in their respective officers and equally travel for in-person hearings can be limited, for example, by appointing arbitrators, lawyers experts, all of those can be appointed on the ground in the location of the hearing. It's also an assumption to suggest that travel is necessarily polluting. You could take a Tesla, you could offset your carbon footprint of airplane travel or you could even walk and you may laugh at the latter. But I did walk to a hearing recently.
It's also a misnomer to say that you're necessarily eliminating the need for physical infrastructure. As I mentioned, previously, participants still gather physically and ultimately, in terms of the venue, the venue can deploy green practices. It's really a question of what those are in the specific location where you're sitting. For example, a venue in office, if those are chosen, could use a green protocol or green practices such as electronic bundles technology platforms to display evidence and the use of laptops instead of paper pats and no bottles. So it's not necessarily correct to suggest that eliminating the need for a physical office or venue would in itself be green or not green.
The next point in terms of environmental impact is the use of electronic bundles. It's often suggested that virtual hearings go hand in hand with electronic bundles. I don't think that's always the case. I've known arbitrators to request hard copies for virtual hearings and equally hard copies are often exchanged leading up to virtual hearings as well. I've also seen in-person hearings use the electronic bundles, in fact, if I think back to the last in-person hearing that I sat in with hard copy bundles it was almost 10 years ago. So technology has really changed in terms of in person hearings as well. In terms of some of the other points not relating to the environmental impact of in-person and virtual hearings I think there's an assumption that these technological advances in terms of virtual hearings are necessarily entirely effective and secure. Whilst there have been improvements, a virtual hearing cannot compete with an in-person hearing in terms of security. Participants still and also just generally, in terms of effectiveness, participants still struggle to navigate breakout rooms and find that pesky mute button and they will never be more secure than sitting together in a single room. On bridging the gap of nonverbal communication, nothing can beat sitting face to face as we found earlier when we were trying to put this podcast together, took us 10 or 15 minutes to start.
Finally on time and cost whilst hiring a venue may be more expensive. Again, this is not necessarily given and in any event, it's not generally significant compared to the overall cost that a party might spend on arbitration as a whole. In respect of time, I'd suggest that focusing everyone in one place can be much more efficient than virtual hearings, which often end up being scheduled across weeks or even months. So I think in terms of which is favorable, I think the general practice of in-person hearings is really returned to the scene and that in itself shows that that's the preference of practitioners at this stage. Whilst virtual hearings have their place in terms of, for example, things like CMCs, full blown hearings are still best in person.
Vanessa: Thank you, Chris. There were some strong points in there, fun points and real arguments to each side. We still have one last speaker who may actually help to the scale. James Willn. James will rebut Ana's arguments that in-person hearings are worthwhile. James is a partner in our Dubai office and a member of our Energy and Natural Resources Group. He is an arbitration lawyer with more than 14 years experience and his practice centers on complex disputes and international arbitrations largely within the construction, the offshore oil and gas and other energy industries. In addition, James is recognized for his asset tracing and recovery litigation work as well as his work on contentious and non-contentious sanctions issues. So James, what is your answer to Ana?
James: Yeah, thanks. Thanks for that, Vanessa. No, that is really useful and um completely valid points and yes, having been through several hearings, uh interlocutory hearings CMCCs hearings during the COVID period. I can definitely say that they work um in that sense, there is some efficiencies there, time costs and savings. But I um I think where I come from is that real efficiency element of, of, of the of the virtual sense of things. So I, I see this quite a lot. Uh typically from barristers, I have to say who say, well, you know, virtual is fine um up to a point. But you know, you can't beat a good in-person, the whole witnesses the see the, the whites of their eyes and all that kind of stuff. And I, and I sometimes think that that's more about the drama than actually the rub of the dispute or, or getting to the actual evidence. Look, I love a good, full blown bluster hearing myself. You know, it's like a like a day trip to the theater, isn't it? The drama, the excitement, the tension, good witnesses, bad witnesses. Um It's, it's all good fun, but whilst we might be enjoying it as the lawyers and I know certainly some of the clients enjoyed it as well.
Ultimately, there's a cost there and with these more, bigger uh more global, more, more complicated arbitrations where, you know, the legal team is four or five individuals. Um The witness team could be six or eight, your expert team, two or three. And then even the client side could be three or four individuals um often from, you know, all around the globe. Um It's very rare that in an international arbitration, all parties are, are located in one jurisdiction. Uh notwithstanding that the seat of the arbitration might be somewhere completely different anyway, So in reality, you're talking travel, you're talking hotels, lack of management, time, uh key individuals away from their, from their day jobs. That that's a, that's a huge cost.
So for me, COVID taught me and, and I was as surprised as many that the the virtual hearings really do work. I did a huge multiparty, multidisciplinary, multi jurisdiction uh construction arbitration in the middle of, of COVID uh different languages, some Koreans in there, some Libyans, some Arabic speakers with the whole blown technology and it worked. And I think I was as surprised as many. So where I've seen complicated, difficult, complex time consuming arbitrations work in a virtual context, for me, notwithstanding the drama, the theater and the excitement, the reality is they are just as effective as the, as the in-person and obviously cost a whole lot less.
Alison: Thank you, James. Look, our time is up for this episode and we would like to warmly thank Ana, Mathilde, Chris and James for participating in this podcast. Stay tuned for episode six where we tackle perhaps the most important part of arbitration, uh besides the hearing, and that is the award. Our debaters will uh go head to head on the topic, Electronic signature and notification of awards: Is green always better? Until then thank you for listening to our Arbitral Insights, Greener Arbitrations podcast series. We hope you enjoyed it.
Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration Practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith arbitration pricing calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.
Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.
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This episode is in French.
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ICSID Secretariat Team Leader and Legal Counsel Paul Jean Le Cannu joins Paris-based international arbitration partner Clément Fouchard to discuss investment arbitration in Africa . The discussion covers African participation in ICSID proceedings, the impact of the 2022 ICSID rule amendments for Africa, discernable trends in recent intra-African BITs and the AfCFTA.
Suzie Savage and Patrick Beale share their views on this year’s key investment treaty developments, building on a December 2021 episode in which they anticipated what to expect in the investor-state dispute settlement space in 2022. This discussion covers ICSID rule amendments, green efforts, and Energy Charter Treaty modernisation, through to UNCITRAL Working Group III updates, the theme of ‘Africanisation,’ and Section 1782 developments.
Gautam Bhattacharyya welcomes four rising stars of One Essex Court: Nehali Shah, Veena Srirangam, Niranjan Venkatesan and KV Krishnaprasad, for the final episode in our SAHM series. The conversation covers why each chose the legal profession, their career mentors and inspirations, advice for up-and-coming lawyers, memorable cases and views on DE&I, before turning to musical interests, travel wish lists and favorite films.
Commended for Barrister of the Year (The Lawyer Awards 2021) Saima Hanif QC joins Gautam Bhattacharyya to discuss the path that led her to the law, her career inspirations, and the progress of diversity, equity and inclusion in the legal profession. The duo discuss Saima’s philosophy that ‘your CV needs to follow your life,' before turning to her love of Britpop and the Sachal Jazz Orchestra.
Pre-eminent leading counsel and Head of Fountain Court Chambers Bankim Thanki QC joins Gautam Bhattacharyya to discuss his journey to the bar. The duo cover Bankim’s role models, the differences in advocacy in litigation vs arbitration, some of his memorable cases, his work with Ukraine, diversity in the field of law – and his love of bluegrass music and the opera.
Described by directories as “likely to become a doyen of the market,” Farhaz Khan QC of 3VB joins us for this “Spotlight on…” episode. He and host Gautam Bhattacharyya discuss Farhaz’s academic background, why he became a lawyer, his mentors and career inspirations, potential reforms to the arbitral process – and his 2022 Glastonbury experience.
Gautam Bhattacharyya hosts leading silk Ricky Diwan QC, who effortlessly “glues the attention of the court” in this SAHM Spotlight on… episode. The pair discuss Ricky’s love of languages and French literature, his path to becoming a lawyer in New York and then London, his career inspirations and their impact on his mentoring style, his reflections on being an arbitrator rather than counsel – and his love of the film, 3 Idiots.
In our inaugural SAHM Spotlight on… episode, Gautam Bhattacharyya welcomes a “real star of his generation,” Tony Singla QC, to discuss why Tony pursued a career in the law. Tony shares his career inspirations, how his experience as a mentee impacts him in being a mentor, his thoughts on improving the arbitral process, and ways to further diversity, equality and inclusion in the law and in arbitration – before talking all things Top Gun and skiing in the Alps.
Rogier Schellaars, partner at Van Doorne and contributor to the Netherlands Arbitration Institute, the Dutch Arbitration Association and the Law Firm School, joins Reed Smith host and Paris-based international arbitration partner Andrew Tetley to discuss the emergency arbitral process, fast track proceedings and the Dutch approach to both.
International Arbitration Silk of the Year (Chambers UK Bar Awards 2019) Rachel Ansell QC joins Gautam Bhattacharyya to discuss the career path that led her to the law and international arbitration. The duo cover Rachel’s mentors and their impact on her approach to mentoring, ways in which arbitration can be improved, the criticality of improved diversity, equality, and inclusion in the law – and Rachel’s love of cricket and rugby.
Secretary general of the ICC Court, Alex Fessas joins global chair of Reed Smith’s international arbitration practice, Peter Rosher to talk about diversity in the world of arbitration and at ICC. The pair discuss why ICC is interested in diversity in its broadest sense, the genesis and aims of the World Business Pride initiative, the ICC Court LGBTQ initiative, and 2022 Pride celebrations.
Olena Perepelynska, head of international arbitration at INTEGRITES, president of the Ukrainian Arbitration Association and chair of the ICC Ukraine Arbitration Commission, joins Paris-based partner Andrew Tetley to discuss international arbitration in Ukraine. The duo explore current ways of working in Ukraine, what arbitration in Ukraine is like more generally, how the conflict has affected arbitral practice, and the activities of the Ukrainian Arbitration Association.
Gautam Bhattacharyya welcomes leading commercial silk Chirag Karia QC to discuss the path that led him to the law – first practising for 10 years in California, then coming to the English Bar – and his career in international arbitration. Chirag reflects on his career mentors, explores how the role of arbitrator differs from that of counsel, and shares ways in which we can all improve diversity, equality and inclusion in the law.
Sachin Kerur, Managing Partner of Reed Smith’s Middle East offices, is joined by associates Jane Miles and Soham Panchamiya to discuss the Dubai International Arbitration Centre’s (DIAC’s) new arbitration rules, effective March 21, 2022. The trio discuss the rule amendments and additions, any gaps or omissions, and anticipated benefits and challenges, before closing with their views on the future of arbitration in the United Arab Emirates.
Gautam Bhattacharyya welcomes leading senior counsel and Head of Quadrant Chambers, Poonam Melwani QC, for a discussion exploring what brought her to a career in the law, who were (and continue to be) her mentors and career inspirations, her perspectives on arbitration, and how she champions and pushes for diversity, equality and inclusion in the legal world and beyond.
Eminent legal figure and former UK Supreme Court Justice Lord Wilson joins host Gautam Bhattacharyya to discuss why he chose law as a career (as opposed to acting), his career mentors and inspirations, reflections on his time in practice and as a judge, and some of his standout cases, including while in the Supreme Court.
Masin Projects CEO Rohit Singhal joins host James Willn to share his perspectives as a delay, technical, and quantum expert in connection with construction disputes resolved via arbitration. The episode covers what duties a party who is appointed as an expert has to the tribunal, examples of where experts have performed well, gotten it wrong, plus key takeaways on how best to use experts within construction arbitrations.
After completing a landmark 50 years at Richards Butler/Reed Smith, former partner, now maritime law consultant and arbitrator, Lindsay East joins host Gautam Bhattacharyya to look back over his illustrious career (including some memorable cases), discuss the development and future of international arbitration, and share his thoughts on how to improve diversity, equality and inclusion in the legal profession.
To coincide with World Earth Day 2022, Vanessa Thieffry and Adam Hedley discuss carbon emissions – what they are, how they’re measured, and how they can be reduced in the context of arbitrations – and disputes arising out of the carbon market in the first of our Greener Arbitrations podcast miniseries.
Delaloa founding partner Pacôme Ziegler joins Clement Fouchard for a conversation on some of the hot topics in international arbitration in Portuguese-speaking Africa. The duo explore in particular Angola’s ratification of the ICSID Convention, followed by a discussion of the Romuva gas deposit in Mozambique with a focus on the latest developments, including the concession agreements, the insurgency which affected the project and future perspectives.
Gautam Bhattacharyya welcomes the former Chief Justice of Western Australia, The Hon. Wayne Martin AC QC, who discusses his career path and memorable mentors, and reflects on his time as a judge. The two discuss Wayne’s current role as an international arbitrator and explore what potential improvements could be made to the arbitration process to make it a more efficient one for all its users.
Stockholm Chamber of Commerce Board Chair Robin Oldenstam discusses the path that led him to arbitration, his role at the SCC, and the future objectives of the SCC (including participation in the upcoming Swedish Arbitration Days) with our podcast host, global chair of Reed Smith’s international arbitration practice Peter Rosher. The duo then look toward the regions where they predict arbitration will see lots of movement in the next few years, before offering advice to up-and-coming counsel and arbitrators.
Newly appointed ICC Regional Director for Africa Diamana Diawara joins our hosts Clement Fouchard and Andrew Tetley to discuss the progress of existing ICC initiatives, including the ICC Africa Commission and the “Hold the Door Open” policy, and the appetite for and differences in arbitration across the continent, before looking ahead and exploring the future of dispute resolution mechanisms more widely in Africa.
Co-founder of ArbTech and independent arbitrator, Sophie Nappert, joins global chair of Reed Smith’s international arbitration practice, Peter Rosher, and digital media and technology expert, Sophie Goossens, for a discussion on international arbitration and the metaverse. The conversation explores the definitions of the metaverse and Web3, what disputes are likely to arise in and from both, how these disputes may differ from disputes as we know them, the dispute resolution mechanisms that could or should be applicable to these concepts, and lastly, whether arbitration proceedings could ever take place in the metaverse.
On the eve of Paris Arbitration Week’s (PAW’s) six-year anniversary, international arbitration partner and Treasurer of the PAW Organizing Committee Clément Fouchard welcomes President of the PAW Organizing Committee Yasmin Mohammad to discuss PAW’s founding principles, the success the annual week-long conference has seen to date, the role of its organizing committee, and what the aims are for PAW 2022 and beyond.
Former President of the U.K’s Supreme Court, The Rt. Hon. Lord Neuberger of Abbotsbury joins our host Gautam Bhattacharyya for this “Spotlight on…” session. He shares the path he took to becoming a lawyer, who inspired and mentored him in the course of his career, his perspectives on how being an arbitrator differs from being a judge, and his thoughts on how the arbitration process can be improved and on diversity, equality and inclusion in the law.
In our latest “Spotlight on…” episode, our host Gautam Bhattacharyya welcomes senior barrister and arbitrator Antony White QC to discuss his career path, why he chose to become a lawyer, and his inspirations and mentors from early on to the present day. The duo then explore possible ways in which arbitration as a form of dispute resolution can be improved upon, before moving on to the progress of diversity, equality and inclusion in the legal field.
For the fifth consecutive year, global chair of Reed Smith’s international arbitration practice Peter Rosher and Jane Davies Evans of 3 Verulam Buildings will co-chair GAR Live: Construction Disputes. In this Arbitral Insights episode, and just ahead of Paris Arbitration Week, the duo discuss the event’s success over the years and walk us through what we can expect from the upcoming GAR Live: Construction Disputes 2022.
This International Women’s Day, our international arbitration practitioners Jemma Collins (Singapore), Catherine Lewis (London), Vanessa Thieffry (Paris), Jane Miles (Dubai), Clara Fung (Hong Kong) and Sujey Herrera (Miami) discuss what the theme of “breaking the bias” means to them in our dedicated IWD “Women in Arbitration” podcast episode, with our host Lucy Winnington-Ingram (London).
The episode first explores what the biggest challenges, perceived and real, are in breaking the bias and what international arbitration practitioners can do to help break the bias, before our lawyers share who they believe has helped create a move diverse, equal, and inclusive environment, not just for them, but for women in arbitration and beyond.
Welcomed by host Gautam Bhattacharyya, Donny Surtani walks us through his background from accountancy to becoming a lawyer – sharing his career inspirations and experiences with mentors, explaining his move to the English Bar and then to Canada, and, importantly, offering his views on increasing diversity, equality, and inclusion in the law and international arbitration.
Ahead of Tel Aviv International Arbitration Week’s third edition, Shai Sharvit, partner at Gornitzky & Co. and a founding member of Tel Aviv International Arbitration Week, joins global chair of our International Arbitration practice Peter Rosher to discuss the drivers for launching the event, how it has evolved, what makes it different from other arbitration weeks around the world, and what plans there are for future events.
Dubai-based associates Jane Miles and Alison Eslick welcome HKA senior consultant, arbitrator and chair of CIArb’s UAE branch Iryna Akulenka, along with registrar and chief executive of ADGM Courts Linda Fitz-Alan, for a discussion on diversity in arbitration in the Gulf Region and where the legal community stands in terms of not just promoting diversity, but also realizing it.
Bangladesh and English law-qualified lawyer Suhan Khan explains what inspired him to become a lawyer. He shares with our host, Gautam Bhattacharyya, his perspectives on the global legal world, discusses what adjustments could be made to ensure that the arbitration process is a better one for its users, and explores how international arbitration has evolved generally in Bangladesh.
Michelle Nelson and Alison Eslick highlight the growing recognition of arbitral award enforcement by local courts across the Gulf Region, focusing on United Arab Emirates, the State of Qatar, the Sultanate of Oman, and the Kingdom of Saudi Arabia.
Former presiding judge of the BVI Commercial Court, founding member of the Judicial Insolvency Network and former Canadian law firm partner, the Honorable Barry Leon discusses his career path and his inspirational mentors, and explains how his time on the bench has shaped his role as an arbitrator in our latest “Spotlight on…” episode with our host Gautam Bhattacharyya.
Global Chair of Reed Smith’s international arbitration practice Peter Rosher hosts Singapore partner Timothy Cooke to discuss the just launched Arbitration Pricing Calculator app, a first-of-its-kind mobile app, designed and coded by Timothy to help arbitration users forecast the costs of arbitration around the world.
Former Advocate General for Maharashtra and Additional Solicitor General of India, senior advocate Darius Khambata discusses his career path, his inspirational mentors, his thoughts on the state of arbitration, and offers advice for the up-and-coming generation of practitioners and arbitrators in this next installment of our “Spotlight on…” miniseries with our host, Gautam Bhattacharyya.
David Brynmor Thomas QC shares his greatest career inspirations and the path that led him to first become a medical doctor, then a solicitor, and then a barrister, with our host Gautam Bhattacharyya. The duo also discuss the differences and similarities when acting as counsel and as arbitrator, and explore the adjustments that can be made to make the arbitration process a better and more efficient one for its users.
J.P. Duffy reflects on international arbitration in the life sciences industry throughout 2021, exploring the increase in emergency arbitration and uptick in manufacturing and distribution disputes, before looking ahead to what 2022 might bring, including the potential proliferation of disputes linked to M&A and expert determination.
Ana Atallah and Clément Fouchard discuss developments in the field of international arbitration in Francophone Africa, including the official launch of the African Continental Free Trade Area and initiatives to promote international trade, access to finance, and dispute resolution on the continent, before exploring arbitral diversity in the region, a rise in local efforts to promote a culture of arbitration, and the prospect of more China-Africa disputes.
Suzie Savage and Patrick Beale discuss important developments in the investor-state dispute settlement space in 2021, including key takeaways from landmark decisions and State responses to the COVID pandemic, before focusing on what to expect in the next 12 months, the impact of institutional rule reforms, and a likely proliferation in climate change and clean energy related claims.
Peter Rosher, Vanessa Thieffry, and Liam Hart reflect on the past, present, and future of international arbitration and the construction industry. The trio first discuss new developments in construction arbitration and construction contracts; the drive for greater efficiency in dispute resolution; and COVID-19’s impact on supply chains, finance, and labor in the sector. They then explore the changing infrastructure investment environment, diversity, and how the path out of the pandemic and a focus on green construction may lead to an uptick in construction disputes in 2022.
Timothy Cooke and Lianjun Li reflect on the increased acceptance of and support for international arbitration across Asia in 2021 through new legislation, enforcement arrangements and case law, and discuss the continuation and likely acceleration of acceptance and supportive measures for arbitration across the region in 2022.
Gautam Bhattacharyya and Simon Greer recap the key developments in arbitration in India over 2021, including the continued development of institutional arbitration in the country, before exploring what the future holds for arbitration in 2022.
Nick Austin and Lianjun Li review key developments in arbitration in the shipping sector in London and across Asia. They summarize the major themes to have emerged in maritime arbitration in 2021 before looking ahead to the type of disputes in the pipeline for 2022, areas of change in the arbitral procedure, and the increasing awareness of alternative maritime dispute resolution in Asia.
Sachin Kerur, Michelle Nelson and Chris Edwards reflect on arbitral developments in the Middle East, including the nationalization of the local arbitration industry, the role of women and Emiratis in the industry and the new UAE mediation law, before looking ahead at changes relevant to international arbitration happening in the UAE and wider MENA region in 2022.
Elizabeth Farrell and Richard Swinburn provide a macro view of disputes in the commodities sector in 2021 (covering the impact of COVID and climate change), before discussing the outlook for 2022, including an increased focus on enforcement, fraud and insolvencies, and procedural commentary on virtual arbitrations and the disclosure process.
Singapore-based partner Timothy Cooke and Dubai-based partner James Willn discuss what a transition away from fossil fuels means for the future of international arbitration. The duo explore the potential change in the geography, and the potential uptick, of arbitral disputes caused by investments in renewable energy and non-oil and gas-related infrastructure and technology.
Gautam Bhattacharyya welcomes Vasanti Selvaratnam, senior QC and joint head of The 36 Group for a conversation exploring her background, her career as a lawyer, and highlights practicing as a trailblazing counsel and international arbitrator.
Paris-based international arbitration partner Clément Fouchard and senior associate Guillaume Aréou welcome Dr. Sylvie Bebohi Ebongo for the first in a series of podcasts focused on arbitration in Francophone Africa. Dr. Bebohi Ebongo is co-founder and partner of HBE Avocats. She is admitted to the Paris and Cameroon bars.
In this episode, our speakers explore the practice of arbitration in the region covered by the Organization for the Harmonization of Business Law in Africa (Organisation pour l’Harmonisation en Afrique du Droit des Affaires) (OHADA). The discussion will highlight the importance of civil law and the French language in this part of Africa, and will explore recent developments in OHADA and its modern and international approach to arbitration.
Gautam Bhattacharyya welcomes – and pays tribute to – the renowned and respected legal legend Fali S. Nariman. The duo explore the best way forward for arbitration to thrive and excerpts from Mr. Nariman’s autobiography, Before Memory Fades.
Hugo Perezcano (former head of Mexico’s Trade Remedy Authority and general counsel for international trade negotiations) and David Gantz (Will Clayton Fellow for Trade and International Economics at Rice University’s Baker Institute for Public Policy, Center for U.S. and Mexico) are hosted by Will Russell from our international arbitration group in Houston for a discussion on the key differences between NAFTA and the USMCA a year after its implementation. The trio discuss the USMCA’s objectives, its key differences compared to NAFTA, potential friction points in the energy industry, and what we can expect for future disputes.
Gautam Bhattacharyya welcomes another of his mentors, the founding and senior partner of Bharucha & Partners, Marezban P Bharucha. The duo explore why MP became a lawyer, who inspired and mentored him, his reflections on some of the seminal arbitration cases he has been involved in during his many decades of practice, his work as both counsel and an arbitrator, and some tips for aspiring practitioners.
The Saudi Center for Commercial Arbitration’s (SCCA) Chief of ADR and General Counsel, Christian Alberti discusses the SCCA’s background, case load, arbitrator roster, and arbitral award enforcement in the Kingdom with New York-based international arbitration partner J.P. Duffy and Dubai-based senior associate Alison Eslick.
Justice B. N. Srikrishna discusses his career, reflects on his tenure on the Indian Supreme Court, and shares thoughts about his work as an arbitrator. Joined by India Business Team Chair Gautam Bhattacharyya, Srikrishna discusses best ways for arbitration to thrive, and also shares tips for aspiring practitioners.
The English High Court reforms to the requirements for witness statements include pioneering measures aimed at improving the quality of witness recollection. These reforms may also influence how international arbitration responds to the challenge of witness evidence in the future. Counsel Suzie Savage and Knowledge Management lawyer Dan Newbound delve into the hot topic of witness evidence and share their views and top tips as the global arbitral community waits to see how the English reforms will unfold in practice.
In the second of our “Spotlight on…” series, and on the eve of the five-year anniversary of the Mumbai Centre for International Arbitration, Reed Smith’s India Business Team Chair Gautam Bhattacharyya hosts Neeti Sachdeva for a discussion on the development of institutional arbitration in India. The duo explore the current work and key objectives of the MCIA at its five-year milestone, what led to Neeti’s interest in arbitration, her career path to date, and her advice for aspiring arbitration lawyers.
Gautam Bhattacharyya leads a discussion about the ICC Arbitration and ADR Commission’s report on the “Accuracy of Fact Witness Memory in International Arbitration.” His guest is José Astigarraga, Reed Smith global chair for international arbitration and co-chair of the ICC task force on enhancing the value of witness evidence.
Learn what motivated the ICC to form this task force, what work it carried out (including examples of the scientific research behind the report), and what tools and practices it identified for the arbitration community.
International arbitration partner Michelle Nelson shares practical insights into arbitration practice, from the perspective of an arbitrator. Hosted by senior associate Alison Eslick, Michelle covers what arbitrators and arbitral tribunals are most (and least) impressed by, and shares lessons learned to help clients put their best foot forward in arbitration proceedings.
Hong Kong-based international arbitration partner Donald Sham hosts Andrew Stevens, Barrister-at-Law at 4 Pump Court, for a discussion on the revisions to the LMAA terms, including amendments impacting virtual/semi-virtual hearings and electronic signatures, witness statements, and arbitrator appointments.
Reed Smith partner and India Business Team Chair Gautam Bhattacharyya hosts SIAC Court member and international arbitration lawyer Shaneen Parikh (a partner with Cyril Amarchand Mangaldas) to discuss career inspirations, recent developments in Indian arbitration law, Shaneen’s role on the SIAC Court, and her advice to aspiring international arbitration lawyers.
In this episode, we continue our two-part conversation with incoming President of the ICC Court of Arbitration Claudia Salomon. Global chair of our international arbitration practice José Astigarraga hosts Claudia for a discussion covering the career path that led her to the ICC, the state and future of international arbitration and the ICC, the rise of international arbitration institutions and her advice for future arbitrators and advocates.
Incoming President of the ICC Court of Arbitration Claudia Salomon is hosted by the global chair of Reed Smith’s international arbitration practice, José Astigarraga, for a two-part interview covering the career path that led her to the ICC, the state and future of international arbitration and the ICC, and her advice for future arbitrators and advocates.
For more information, please visit Reed Smith's International Arbitration page.
Independent arbitrator Judith Levine discusses the legal landscape of environmental disputes with Paris-based international arbitration associate Vanessa Thieffry in this next installment of our Women in Arbitration miniseries. The duo explore the characteristics and difficulties of environmental disputes, institutional initiatives, and the extent to which arbitration is an appropriate forum to resolve these disputes.
For more information, please visit Reed Smith's International Arbitration page.
International arbitration lawyers Gautam Bhattacharyya and Joyce Fong explore the hot topic of factual witness testimony, discussing its crucial role in hearings with parties from different jurisdictions and how to overcome the challenges of obtaining witness evidence and cross-examining witnesses, especially when multiple languages are involved.
For more information, please visit Reed Smith's International Arbitration page.
ENR partner Peter Rosher, with ENR associates Vanessa Thieffry and Alison Eslick, explore the wide array of particularities and peculiarities that distinguish construction arbitration from other fields of arbitration, from heightened technical complexity to contracts, disclosure and procedural challenges.
For more information, please visit Reed Smith's International Arbitration page.
Global chair of our international arbitration practice, José Astigarraga, hosts Alexis Mourre, President of the ICC Court of Arbitration, for the second instalment of a two-part wide-ranging discussion on: the state of international arbitration globally; the accomplishments and innovations during his presidency; the challenges facing the ICC; new global hotspots for international arbitration; and the future of arbitration, including the impact of technology and artificial intelligence.
For more information, please visit Reed Smith's International Arbitration page.
Global chair of our international arbitration practice, José Astigarraga, hosts Alexis Mourre, president of the ICC Court of Arbitration, for a two-part wide-ranging discussion on: the state of international arbitration globally; the accomplishments and innovations during his presidency; the challenges facing the ICC; new global hotspots for international arbitration; and the future of arbitration, including the impact of technology and artificial intelligence.
For more information, please visit Reed Smith's International Arbitration page.
International arbitration lawyers JP Duffy and Danny Avila speak with vice president of the International Centre for Dispute Resolution (ICDR) Luis Martinez about the recent amendments to the ICDR arbitration rules. Their conversation addresses the ICDR’s early disposition procedures, expedited procedures, emergency relief measures, consolidation, virtual hearings, electronic filings and more.
For more information, please visit Reed Smith's International Arbitration page.
To coincide with World Earth Day 2021, the third instalment of our “Women in Arbitration” podcast miniseries focuses on the Campaign for Greener Arbitrations, an initiative to raise awareness of the international arbitration community’s carbon footprint and encourage a move toward greener arbitrations.
London-based senior international arbitration associate Victoria Spilkin invites Maguelonne de Brugiere, a member of the Campaign’s Steering Committee, to discuss the campaign’s aims, successes, and top tips for those in the arbitral community wanting to support this green initiative.
For more information, please visit Reed Smith's International Arbitration page.
Meg Kinnear, secretary general of the International Centre for Settlement of Investment Disputes (ICSID), discusses her background, the importance of mentors and female arbitrators, and updates to the ICSID/UNCITRAL draft code of conduct. London-based counsel Suzie Savage is our host.
For more information, please visit Reed Smith's International Arbitration page.
The president of the International Council for Commercial Arbitration, Lucy Reed, talks with London-based associate Lucy Winnington-Ingram, in the inaugural episode of our “Women in Arbitration” podcast miniseries. They explore the ICSID/UNCITRAL Draft Code of Conduct with a focus on article 8 and the steps stakeholders (including arbitrators themselves) can take to address concerns over arbitrator availability. They also discuss progress made since the Equal Representation in Arbitration Pledge was drawn up five years ago.
For more information, please visit Reed Smith's International Arbitration page.
Reed Smith’s “Women in Arbitration” podcast miniseries serves as a platform for women across the global arbitral community to discuss international arbitration hot topics, trends, developments and matters of interest. The series aims to foster thought leadership creation and information sharing, while providing an opportunity for women’s voices in the international arbitration space to be heard.
Reed Smith’s international arbitration practice is a proud signatory of the Equal Representation in Arbitration Pledge. For more information about Reed Smith’s dedication to creating a culture of equal opportunity for women, please visit our Women’s Initiative Network page.
New York-based partner JP Duffy and London-based partner Simon Greer discuss key points from interviews with ICC President-Elect Claudia Salomon and LCIA President Paula Hodges QC, about the updated ICC and LCIA rules. The duo discuss the commonalities and differences in the institutions’ new approaches to issues such as: the use of technology in arbitrations; efficiency and flexibility; consolidation and multi-contract and multi-party proceedings; preventing disruption and delay; transparency; Tribunal secretaries; third-party funding; and data protection.
To hear more about the updated ICC guidelines, listen to our previous podcast episode in which JP Duffy interviews the ICC’s Salomon.
To hear more about the updated LCIA rules, listen to our previous podcast episode in which Ben Love interviews the LCIA’s Hodges.
For more information, please visit Reed Smith's International Arbitration page.
London-based partner Nick Austin explores the main drivers behind the Baltic and International Maritime Council’s (BIMCO) new law and arbitration clause, commenting on its multijurisdictional approach and the impact of the changes to the clause on the shipping industry.
For more information, please visit Reed Smith's International Arbitration page.
The ICC’s expedited procedure rules are used all around the world to resolve disputes. But when do the ICC’s expedited procedures apply? Will they speed up the process of getting an award? And what are their effects on costs? Partner Gautam Bhattacharyya and associate Victoria Spilkin share their views on the advantages, disadvantages of expedited processes -- from an implementation point of view.
For more information, please visit Reed Smith's International Arbitration page.
Partner Donald Sham and associate Clara Fung discuss why 2020 was an encouraging year for Hong Kong as an international arbitration centre. Find out what advantages Hong Kong holds as an arbitral seat, and learn the impacts that newly introduced arrangements with Mainland China will have on the future of Hong Kong arbitration.
For more information, please visit Reed Smith's International Arbitration page.
LCIA President Paula Hodges QC joins international arbitration lawyer Ben Love to discuss the LCIA’s most recent arbitration rules, which include revisions addressing remote proceedings and electronic communications, expedited procedures, consolidation and composite requests, tribunal secretaries, and early determination.
For more information, please visit Reed Smith's International Arbitration page.
Hear international arbitration lawyer JP Duffy and Claudia Salomon, the ICC International Court of Arbitration’s president-elect, discuss new ICC guidelines relating to: joinders and consolidations; remote proceedings; third-party funding; representation; inequality of tribunal appointments; and expedited procedures.
For more information, please visit Reed Smith's International Arbitration page.
New York international arbitration counsel Ben Love discusses decommissioning in the upstream oil and gas industry with Chris Moyes, president, and Chris Moore, managing director, at global advisory and consulting firm Moyes & Co. The Q&A session covers: the evolution of decommissioning arrangements; prominent decommissioning models; various forms of decommissioning disputes; how issues can be avoided; and developments around decommissioning in joint operating agreements.
For more information, please visit Reed Smith's International Arbitration page.
Partner Gautam Bhattacharyya and associate Catherine Lewis explore common circumstances that lead to conflicts over jurisdictions in international arbitration. Jurisdictional problems impact a whole range of entities (such as international firms operating in many jurisdictions) and contractual arrangements (such as multiple contracts that may overlap in time, geography and/or subject matter). The duo discuss what happens when a breach of arbitration agreements occurs, how to enforce arbitration agreements and whether this will be a continuing feature of international arbitration.
For more information, please visit Reed Smith's International Arbitration page.
New York-based partner JP Duffy and London-based partner Iqbal Hussain explore why international arbitration creates an environment where disputes can be brought without destroying business relationships. They discuss how alternative resolution is a contributing factor to long-term collaborations, in the second episode of our life sciences focused podcast miniseries.
For more information, please visit Reed Smith's International Arbitration page.
Hear stories about how to best manage sub-optimal situations in international arbitration. Middle East Office Managing Partner Sachin Kerur and Dubai-based associates Jane Miles and Alison Eslick provide case studies of ‘arbitrations gone wrong,’ from non-forthcoming witnesses to the death of an arbitrator.
For more information, please visit Reed Smith's International Arbitration page.
Selecting the right arbitrator is critical to ensure that proceedings run smoothly and efficiently, and that a fair and well-reasoned outcome is reached. Dubai-based associate Alison Eslick explores how appointing the right arbitrator for your matter is perhaps more of an art than a science, and shares examples of five types of arbitrator you may come across when making your decision.
For more information, please visit Reed Smith's International Arbitration page.
In the first of our Arbitral Insights’ India-focused miniseries, two international dispute resolution lawyers discuss how COVID-19 has impacted arbitration in India, including: their own experiences of remote hearings; new best practices arbitrators are using; and what the future holds in terms of technological and other innovations in arbitration. Reed Smith international arbitration lawyer Gautam Bhattacharyya is joined by Shreyas Jayasimha, a counsel, arbitrator and mediator who is also founding partner of Aarna Law in Bangalore, India.
For more information, please visit Reed Smith's International Arbitration page.
Reed Smith partner JP Duffy discusses the benefits of using international arbitration to settle disputes in life sciences industries. This is the first session in an Arbitral Insights life sciences miniseries.
For more information, please visit Reed Smith's International Arbitration page.
Join Reed Smith lawyers Gautam Bhattacharyya and Simon Greer as they discuss challenges and solutions in a recent Singapore International Arbitration Centre dispute, which included battles over disclosure and Redfern schedules. They discuss what made this international arbitration so “international” and highlight key takeaways from the case.
For more information, please visit Reed Smith's International Arbitration page.
What can go wrong when companies draft poor arbitration clauses, and what are some best practices to avoid these mishaps? International arbitration lawyer Marine de Bailleul explores the key elements of a well-drafted arbitration clause (and their benefits), in our latest episode of Arbitral Insights.
For more information, please visit Reed Smith's International Arbitration page.
London-based international arbitration lawyer Lucy Winnington-Ingram explores the background and context surrounding the ICSID/UNCITRAL draft code of conduct for adjudicators; its likely effects; and future issues that are likely to arise.
For more information, please visit Reed Smith's International Arbitration page.