GAR INTERACTIVE: Women in Arbitration
On the 2nd of February 2021, the Global Arbitration Review organised ‘GAR Interactive: Women in Arbitration’. Co-chaired by Domitille Baizeau (LALIVE, Switzerland) and Annette Magnusson (Secretary General, Arbitration Institute, Stockholm Chamber of Commerce), the event was championed by inspiring and leading women in arbitration.
We were able to attend this event with the support of scholarships granted by Ms Rekha Rangacharu, Dr Crina Baltag and Dr Kabir Duggal, co-chairs from Racial Equality for Arbitration Lawyers (R.E.A.L.) and GAR. This report has been jointly prepared by Vanessa Tsang (Hong Kong), Ishita Mishra (India) and Nicole Alvarez (Ecuador). Please note that this report does not summarise everything that was said at the event and contains our opinions and our top takeaways.
Panel- Fireside chat: A view from top practitioners
This panel was conducted by Patricia Nacimiento (Herbert Smith Freehills, Germany) and integrated by Nathalie Voser (rothorn legal, Germany) and Sylvia Noury (Freshfields Bruckhaus Deringer, England). They talked about challenges faced as arbitration practitioners and provided recommendations for young practitioners to expand professional skills.
For young professionals, the top take-away is that we must carefully choose a law firm to develop our interests and focuses. Ms Natalie Voser said the best decision she made in her career was choosing her first law firm to start her practice. If we follow our hearts in making the decisions in life, we may never regret them. Likewise, Ms Sylvia Noury, the Head of International Arbitration at Freshfields, followed her passion for international law, which later motivated her to work in Paris. Both of them ended up enjoying their works so much and felt immensely enriched by their experiences.
The speakers also discussed the attributes that will lead a lawyer to success, which young professionals should pay attention to and develop as they progress in their careers. In a world with keen competition, lawyers should excel beyond the essential qualities expected by their clients and law firms, namely advocacy, discipline, and intellect. Increasingly, there is an emphasis on a lawyer’s EQ and interpersonal skills. Developing soft skills are essential for advocates as we seek to persuade the bench and tribunals. We must learn to observe the tone of others and listen. Having good interpersonal skills will allow us to work better as a team. Other than that, we should equip ourselves with IT skills. It would be ideal if we can master multiple languages.
Takeaway: For young professionals, the top take-away is that we must carefully choose a law firm to develop our interests and focuses. If we follow our hearts and passion in making the decisions in life, we may never regret them. To advance their careers, lawyers should also excel beyond the essential qualities expected by their clients and law firms, namely advocacy, discipline, and intellect. Increasingly, there is an emphasis on a lawyer’s EQ or emotional quotient, and interpersonal skills.
Panel – GAR Interactive Roundtables: Diversity strategies in international arbitration
The participants were divided into different breakout rooms in this session to discuss the strategies to promote diversity in international arbitration. One of the groups mentioned that it is key for partners at law firms to recognise and identify diverse talents. It is also crucial to promote diversity at the appointment of arbitrator stage. The key is to let other people spotlight arbitrators with more diverse backgrounds.
Panel- GAR Interactive Question Time: The rise in requests for summary dismissal and what it means
This panel was moderated by Gaëlle Filhol (Betto Perben Pradel Filhol, France) and comprised of Hannah van Roessel (Omni Bridgeway, Amsterdam), Judy Fu (3VB, England), Karah Howard (Pinsent Masons, Hong Kong), Kathryn Britten (Alix Partners) and Sarah Lancaster (Arbitration Chambers). Offering perspectives from the Bar, law firms, third party funders and experts, this diverse panel discussed the pros and cons of summary proceedings and its consequences for ADR providers.
Ms. van Roessel was the first speaker. She started the discussion by examining what was meant by a summary dismissal proceeding and introduced us to the funder’s perspective. While emphasising that an expeditious resolution of a dispute was both in the funders and client’s interest, she pointed out that it was more important to ensure that “we ended up with an award that was enforceable“. She noted that summary dismissal proceedings need not be restricted to merits only and may be undertaken at the jurisdiction stage as well. Ms Lancaster added to this by highlighting that while rules relating to summary dismissal proceedings may not expressly cover jurisdictional challenges, general case management powers under various institutional rules allow tribunals to adopt appropriate procedures.
The next panellist was Ms Fu. Ms Fu introduced us to the statistics on summary dismissal from the ICSID and SIAC. She noted that over the past years, 34 applications had been made under Rule 41(5) which provides for an expedited procedure to dispose of unmeritorious claims at the preliminary stage of a proceeding. Within commercial arbitration, Ms Fu highlighted that eight early dismissal applications had been filed before the SIAC out of which five are ongoing, and one was granted. She emphasised that the high threshold that summary dismissal proceedings engage that of a case being manifest without merit made it exceedingly difficult for parties to succeed, consequently, making them rarer. She remarked, that while not unheard of, summary dismissal proceedings were still not common.
The topic next up for debate was the role of experts and counsel in international arbitration. Ms. Howard stressed that it was crucial that experts have the right expertise in the particular field and be free from any conflict of interest, independent, impartial, objective and not hired guns. She noted the advantages of having joint expert witness statements and how the same often led to a reduction in the cost and time of arbitration as the experts getting together (at times) resulted in the decrease in the number of issues before tribunals and reduced claim amounts. This view was supported by the expert on the panel, Ms Britten. She stated that getting the right expertise ensures speedier dispute resolution. She said that it was essential to get an expert early on so that reports can be produced, and any queries of the tribunal resolved early on. She underlined that the advantages of using experts would manifest best if the expert chosen has the right industry experience. Ms Britten also commented on the use of third-party funding and contemplated on the evergreen question of, whether using a funder pressurises parties to settle? She pointed to a survey which had asked this very question to parties that had used funding and those who had not. 70% of the ones who had never utilised funding, said yes there was the possibility of pressure to settle while only 35% of lawyers who had used funding agreed with the same proposition.
Coming to conduct of counsel in international arbitration. Ms. Howard started this discussion by noting that there was not much uniformity in this regard as counsel conduct is regulated by the rules of their domestic bar associations. She mentioned that the idea of a Global Arbitration Ethics Counsel had been floated, but then said she did not think that the same was viable as it would be a costly endeavour, and one that may result in only generic terms being adopted (which does not really do much to solve the problem). She opined that the possible regulation on abusive counsel conduct could take place by incorporating rules such as the IBA Guidelines on Party Representation within terms of reference or within arbitral clauses themselves. She also observed that counsel conduct could also be regulated if more arbitrators were willing to make tough decisions and call out counsels on practices that may be seen as suspect. Ms Lancaster took this discussion further by examining this question further. She highlighted practical problems that exist in international arbitration that make it harder to regulate counsel conduct. For instance, document disclosure standards vary across countries. Therefore, if a counsel comes from a country where one is not required to disclose all documents (including those against), and certain documents are discovered at a later stage, could that be regarded as abusive conduct? She ended by saying that any regulation of counsel conduct must ensure that arbitral proceedings must run efficiently.
Coming from the common law tradition and having seen the advantages of undertaking summary proceedings in India. Reflecting on this panel, I thought that summary dismissal proceedings were a need of the hour. Particularly, as at times arbitrations are being initiated in circumstances where no real dispute exists or as part of a delay/bargaining tactic. It is important to provide this mechanism to empower parties and arbitrators and prevent engagement in unnecessarily long arbitral proceedings. However, the one thing I think needs to also be considered when looking at adopting such mechanisms, is enforceability of awards that arise out of such proceedings. Domestic legislation and public policy considerations of the seat court and enforcing courts may need to be considered, when undertaking such proceedings.
Takeaway: After attending the event, I was made aware of the excellent work that was being undertaken everywhere from arbitral institutions, law firms to clients’ offices on promoting gender equality within arbitration. This GAR Interactive, gave us all a lot of food for thought, and allowed us to see how even we as young practitioners can champion gender equality within arbitration. This championing could be done by starting or working on equality initiatives at our workplaces or even participating in them. Together, we can help move the needle towards increased gender diversity in arbitration.
Panel – GAR Interactive Horizons: a conversation with leading female specialists from Latin America.
This session was moderated by Hagit Muriel Elul (Hughes Hubbard & Reed, New York) and contained the remarks of Kate Brown de Vejar (DLA Piper, Mexico), Elisabeth Eljuri (Independent Arbitrator, Miami), Monica Jimenez Gonzalez (Ecopetrol, Colombia) and Katherine Gonzales Arrocha (Regional Director, ICC International Court of Arbitration, Panama), which focus its discussion in the inclusion of women in arbitration and the challenges that face arbitration practitioners from Latin America.
Concerning the latter, MsKate Brown de Vejar started highlighting the critical statistics calculated from the Who’s Who Legal rankings of arbitration in Latin America, demonstratingthat women are severely underrepresented. Among the data mentioned, on the leader’s category, just one third are women, and in the recommended category, only 20% of ranked practitioners are women. This indicator is similar in other legal areas. Other statistics show that women in Latin America occupy less than 25% of management roles and earn 60% of their male counterparts salaries.
A key factor is the distinct region culture and religious history, which has resulted in a gender bias. Most Latin America women believe that is their full responsibility to take all the role at home, which become very difficult to manage their professional sphere. Women are discouraged from aspiring for management roles and partnerships in law firms because of the lack of flexibility.
According to Ms Brown, it is necessary to support young women’s talent and not allow society to establish parameters that define how far women can go. Another solution is to encourage women colleagues to strive for partnerships and higher professional aspirations. The following policies have proven to be effective: creating voluntary programs to generate social accountability, mentoring programs to young lawyers, generating networking spaces, and supporting groups. Pro diversity policies are necessary, such as getting data and transparency on recruitment and compensation. Big law firms and boutiques should offer these opportunities.
Summarily, Ms Elizabeth Eljuri mentioned practical examples of the differences in arbitration practitioners with a civil law background from Latin America. In terms of disclosure of impartiality as an arbitrator, common law lawyers tend to over disclose and Latin American lawyers are more concise. Another example is that civil lawyers tend to argue more about substantive the law. On the other hand, common law practitioners argue the facts. As a consequence, for arbitrators, it is more challenging to elucidate the whole scenario. Ms Eljuri suggested appointing arbitrators with mixed backgrounds in these cases. Finally, she emphasised that international arbitration’s beauty is to have a platform that brings us the opportunity to have a global practice.
In brief, Ms Monica Jimenez discussed the challenges of facing international arbitrations as a Colombian practitioner. For instance, It is common that while there is an international arbitration proceeding, there are also proceedings on the same case in domestic courts and administrative entities. In these cases, confidentiality becomes problematic and must be safeguarded. Ms Jimenez highlighted that Tutela o Amparo affects the enforcement of awards and is one of Colombia’s biggest concerns where rights could be infringed. Further, the public ministry (procuraduría) is authorised to interfere in the arbitration process to protect the state’s interest. However, international arbitrations with private agreements are affected because the state can participate as a third party. These issues should be mitigated by promoting international arbitration to avoid government interference and disincentive from investors and businesses.
Finally, Ms Katherine Gonzales emphasised the issues regarding the Calvo doctrine’s legacy and populist governments in Latin America’s history. In the 1960s, most Latin American countries established that all investment disputes should be based in the host country, to protect the weak nation in front of strong nations. This legacy is in contrast with the flexibility of arbitrations. Despite the later adoption of the Panama Convention, New York Convention and other arbitration laws, it has not been enough in practice. Some practitioners have judicialise the arbitration process, such as Tutela or Amparo mentioned by Ms Jimenez. Constitutionalisation of arbitration in Latin America is a challenge that has to raise intellectual debates. In one side of the argument, there is specific probation recognising arbitration as a right, in the other, there is still this Amparos. Although these issues remain, we have seen sophisticate practitioners and more arbitrations and seats of arbitrations increasing in the region.
Takeaway: For the reasons above, we call to the arbitration community to think about what else we can do to support and encourage women from Latin America to be leader practitioners, and implement the recommendations made by this panel and continue promoting arbitration in Latin America for the benefit of all.