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. 

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 [email protected]. 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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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. 

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 [email protected]. 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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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.

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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. 

Niyati: Welcome to today's episode of our Arbitral Insights podcast. I am Niyati Ahuja, a senior associate in the International Arbitration and Global Commercial Disputes Group in Reed Smith New York. I'm duly qualified in New York and India. My work involves both commercial and investor state arbitration, white collar investigations and litigation proceedings in New York. I'm delighted to have Mehak Oberoi with us today. Mehak is currently the legal head and general counsel for General Electrics for NOVA in Asia Hydropower, APAC. She has over 17 years of experience during which he has helped businesses develop and implement legal strategies for the renewables business on a wide array of legal issues facilitating seamless business operations and commercial transactions, deal negotiations, and offering critical legal insights to the board, ensuring an alignment with organizational objectives and compliance. Welcome, Mehek. We'll start very quickly with learning more about your career path. Could you just spend a few minutes telling us about what your career has looked like so far?

Mehak: So I finished law school in 2008. I worked with a couple of law firms in India for about seven years. And that's when I moved to General Electric. And I hopped around various businesses of GE. So I've seen a lot of businesses being bought and sold and acquired. So all of that. And now for the last five years have been with the renewable piece of GE.

Niyati: That's very interesting. Thank you. One thing that I love to ask and understand about is who has been your inspiration in your personal or professional life or somebody like a mentor? Who would you think is that one person or two or three, as you wish?

Mehak: So I'm actually a first generation lawyer so I wouldn't I mean as far as my field is concerned I don't think I really have a role model from my within my family but when I was in third year law college I interned with Pepsi and at that time the the VP of legal was Mr. V.R Shankar. So I think he is the one who really started grooming me and helped me understand that this is something that I would possibly like to do. So yeah, so he was, I think, my first mentor. Then I think once I moved into GE, I had a couple of them over here because in-house legal work was very new to me. I think for all people who work in a law firm would understand that work in a law firm versus work in-house is very different the way the way it is structured whether it's process or just general day-to-day work is very different so I think I needed some hand holding in the beginning so I had some good people at that time also to help me out.

Niyati: Well that's that's really nice to hear that there were people helping because it's sometimes hard to find just people who help you when you need hand holding so that's that's nice to hear. Mehak, can you tell us a little bit more about so you said you started with law firm working at law firms so what pushed you or what made you choose to move in-house because you have been in-house for several years now so what made you think oh yeah maybe I want to as you mentioned there's a difference what made you think maybe I could do in-house?

Mehak: The very honest answer, I think life took me on that path because I just had my first daughter. I couldn't manage the commute because I stay in a particular place and my office was about an hour and a half one way. So I used to not see my daughter in the morning. She was sleeping when I used to leave and she was asleep again by the time I used to come back. So I decided I had to shift my job closer to home. and at that time when I took it on I think there were there was this myth that you know it'll be probably a slightly more relaxed and time effective job to have in terms of raising children. So that's how I took it on and very frankly at that time also it was very difficult for me to make the switch because I don't know I was stuck in that phase in terms of not having too much to be a legal head but having you know I was stuck somewhere in the middle so when I got GE actually I really really took a leap of faith because the person who interviewed me actually told me that I'm overqualified for the job I know it's it's really it's really like that because you know you will be shocked if you even hear what I was actually doing I was reviewing non-disclosure agreements globally for oil and gas business that's all that i was hired to do after seven years of experience so I was told but I was so yeah so I was so desperate to get that job I said no I will do it and maybe somewhere I think I had that faith that I'll be able to climb up the ladder and I think three months in I grabbed on the role to start reviewing their global sourcing agreements as well and slowly I climbed the ladder and, nine years later, here I am, but it was a true leap of faith.

Niyati: That's been a very successful leap of faith, I will tell you that. It's also inspiring to hear that you were hired first to do something so basic and you're doing such an excellent job now. Well, that is very inspiring. So what is one thing, and this is actually feedback for people like me who are working inside law firms. What is one thing that you wish outside counsel did that they don't currently do? So is there like any feedback or like have you seen in your experience that you wish, oh, this law firm that I'm working with or I worked with at some point, I wish they did something differently?

Mehak: So I think what typically happens is that law firms work in a slightly more theoretical manner. And I don't think it's any fault of theirs. It's just that they're not so in tune with the business needs as I would be as a company counsel. So I think possibly they need to walk a couple of miles more and try to show a little more interest in the business perspective of things. And when I say business perspective, the first ground rule is to try to understand what the business is. What do they really do? If there's a construction dispute, for example, I need the law firm to be able to show me interest as to what that project really was. How was it constructed? Why is there a dispute? You know, so maybe slight engineering nuances, which even I'm not really comfortable with. There's a lot of technical jargon, just some interest to be able to appreciate the nuances. And I think that helps them become better lawyers also, because then they can help me make those commercial calls which are compliant legally.

Niyati: Yeah, no, I completely, completely agree with that. In my experience, I try to understand what their business objective is, especially as a dispute resolution counsel. The business goal is not to get into a dispute. It is to avoid a dispute. So if we can catch it at an earlier stage or try to find an amicable resolution, I think all clients appreciate that because they want to keep functioning. They don't want to get into a dispute and get busy with that dispute. So I completely understand what you're saying. And I think I agree with you that it's not for a fault of law firms that they sometimes don't get into what the business goals are or what the business is actually doing, because they're handling several clients at the same time. So maybe they are not as in tune with the business goals as an in-house counsel. But that's why it's really, really important to have open communication channels between the in-house counsel as well as the law firm. So that's a really good point.

Mehak: And I think it's also a perspective that for a law firm, you have thousands of clients, clientele. My only client is my company. So I'm watching out for one single interest, whereas you're looking out for multiple. So I guess that also creates that shift of focus.

Niyati: Yeah, no, I completely understand. And as you said, your one client is the company that you're working for. Can you share what your day-to-day looks like? Because a lot of people on the outside are curious, what does an in-house counsel really do? Can you share just like what? Because you do a lot of things. I'm sure like the stresses that you deal with are very different from somebody at a law firm. So I'd love to know like what does your day-to-day look like?

Mehak: Oh, chaotic. I think that's the best way to describe it. I think the moment you open your eyes, the first thing is that you check your phone and you just need to know that no bomb has exploded overnight. And that could be, you know, it could be an injury on site. It could be a flood on a site. It could be an accident. It could be some criminal complaint that has been filed. And so, you know, or your bank guarantee has gotten invoked. So all of those kind of things you're kind of watching out for something not happen overnight. Plus, I work with different time zones. So a lot of the times that urgent factor comes in overnight when I'm just about opening my eyes. So that, otherwise, I think on a day-to-day basis, I support the entire project cycle, right? From the commercial till the litigation or the dispute resolution phase. So I do all of that. So I think it's right from taking calls on whether projects need to be terminated or they need to be suspended or what is whether we need to go into litigation for something. We're negotiating on contracts. What are, you know, the commercial teams could be stuck somewhere. So, you know, brainstorming with them as to what are the possible options we have. So, you know, I think a mix of all of that. And of course, a lot of compliance, a lot of ethical standards that you have to abide by or adhere to. So you're kind of keeping a check or a lookout for that as well on all fronts.

Niyati: Sounds like a full, full, full plate from morning to night, or even in the middle of night with the different time zones, it seems like. So my next question, Mehak, now that we've talked about a lot what we can learn as law firms from in-house counsel, the next one is for our audience members who might be in-house right now. What strategies can in-house counsel employ to minimize the risk of disputes during the construction phase of projects? Is there something that you've identified and you make sure that this is done? Or if you have just some general piece of advice of how in-house counsel can just avoid at an initial, at the inception of projects to have disputes at a later stage?

Mehak: So I think the sole focus has to be on claim avoidance. And I think that concept is still fairly new. I think we've just started transgressing from say transcending rather from you know litigation to arbitration and now mediation and now you know we're trying not even to get into mediation and try claim avoidance altogether so that first of all so a couple of things I think as far as best practices as far as claim avoidance is concerned would be would be a very detailed brief from you know the commercial team to the project execution team i think that's extremely crucial in terms of a commercial team being able to brief the project team as to what the project is about, what the contract is about, what are your obligations, what is the payment structure, what works. What was the context of conversations and negotiations that took place at the time that the contract was being discussed? So, you know, all of those factors, I think, give a very well-rounded and holistic view to a project team. And the second would be, I think you should always try to appoint the, typically the project manager would be appointed once the contract is signed. And that's when the project manager takes on. I think it's a great idea to have the project manager appointed whilst the contract negotiations are going on. They don't necessarily need to sit on that table, but there are a lot of times where you could go back and take that feedback because he's the person who's going to be executing it on ground and will be able to give you the insights that you could have never thought of. So I think that's a very important factor. Over and above that, I think it's constant and regular communication and catch-ups with your project teams, with your contract teams. Because all said and done, you're not sitting on the site. So it's important for you to build that rapport with the project teams for them to want to come to you and give you those updates as to what is really happening. Because that's the only way you will be able to red flag something that you see coming. And I think those are the, I guess, also, I think sitting in on the project review meetings and all at times, I mean, I do understand, I think lawyers do, including me, find it rather boring at times. And those meetings drag on and sometimes you can't understand the technical jargon, but it does help even if you catch on a little bit of the stuff. So those monthly meetings or generally quarterly meetings, they do help also.

Niyati: Right. So regular check-in and regular communication, as well as giving exposure to the project manager at the initial, very initial, even before the project has begun. I think that is a very important key piece, because if they are going to execute it, they should know what went behind the negotiations. I think that's a really excellent point. Mehak, now what are the key challenges companies face? And it doesn't have to be obviously your specific experience, but you are in this sector. So you are open to these risks and challenges that companies are facing when resolving construction disputes through arbitration. And if you have any thoughts on how in-house counsel can address them. And it doesn't have to be your specific experience.

Mehak: So I think one very crucial one in construction disputes is being able to find the right kind of arbitrator who understands the nuances of and the technicalities of a construction dispute. You need someone who's adept at being able to appreciate all of those, whether it's your delay claims or your extension of time related claims, etc. It involves a lot of technicalities that one needs to appreciate. So I think that is a problem that everyone does face. Second would be I think that's not so much of a construction dispute specific one but just generally the enforcement related challenges that we are constantly struggling with especially I mean in in context of India it's it's really difficult I've been stuck in enforcement proceedings for three three four four years, After-

Niyati: I am rolling my eyes for the audience members who can't see but yeah that's a long long period because you've already undergone the whole arbitration process and then the enforcement is taking three to four years is i can i can imagine how unsatisfying that is as an in-house counsel.

Mehak: Yes yes that I think also when we hire experts in an arbitration. Now, they're, I think, very good at their job. They do understand what they're doing. They're very clear about the numbers. But what a lot of the times happens is that they may not be able to simplify what they're trying to say to an extent that the tribunal understands it clearly. Because they really have to bring it down to grade one level. You have to think of it like you're explaining it to a child, unless you have a technical team as a tribunal. So I think that as well can help if experts can appreciate extremely simplifying what they've been hired to do.

Niyati: That's one thing that as legal counsel or at law firms, we make sure that when we receive the expert's first report, we look at if it is easily understandable by a layman, especially if we don't have a technical expert. Because as you're saying, even though arbitrators can be chosen by parties, and that's one of the good, better advantages of arbitration, sometimes it is still very technical in construction disputes or mining disputes, something very, very in a technical field. So I completely agree with that. The next question is because no podcast or no webinar can be complete without talking about technology. I'm curious to know in what ways have you seen technology has impacted the management and resolution of construction disputes in your projects, as well as just your day-to-day internally?

Mehak: So I think we're still grappling with what is there. I do see some organizations that have already started using it. I see that a lot of firms that provide experts as witnesses, etc., they have already started using AI tools. But I think as far as in-house is concerned and construction on infra-related companies, I haven't heard of many who have possibly embraced it as yet. I think everyone is still trying to understand. And I think, you know, those disclaimers that you get with AI that, you know, we're not foolproof and you're going to have to verify everything. So that just kind of makes everybody wary. But I think in the very, very near future, what I would see happening is probably us being able to use it for our early case assessments. Contractual reviews, for understanding the merit of our claims, being able to select arbitrators, actually, in a random manner, you know, without human bias. Just being able to very objectively you know compare expertise etc that is needed without having your influence or your bias coming into the picture so that would be one I think important place also I think on a mediation front one would be able to probably come up with lots of these creative nuanced innovative solutions that can be parties can hash out amongst themselves so I I think those are the factors and possibly, yeah, ADR and the blockchain and lots of, you know, digital evidence being submitted, lots of simulations and regenerations and not just boring evidence like we submit today. So I think a lot is going to happen in the next one year, I think.

Niyati: Yeah, I think it could be very interesting to have more relatable or more interesting opening arguments, evidence how it is submitted, all of that. Obviously, nothing can, at least not in the near future, replace lawyers like yourself and me for contract drafting. But definitely a first draft or preliminary assessment could be possible at the rate that things are going. Obviously, I completely agree with you that AI is not foolproof and it needs verification. So that is something I always make sure that everybody keeps in mind if you are using it. Also, make sure that it stays confidential, especially for things like arbitration, because our proceedings, commercial arbitration proceedings are often confidential and parties want to maintain that confidentiality. So just for our audience members, make sure you're not putting any confidential information on these portals unless it is within your organization and it has been approved for use by your organization.

Mehak: So Singapore, in fact, Singapore High Court has come out with their rules. Supreme Court has come out with their AI rules, I think as a couple of days ago or something. So I think we're seeing that now. I don't know when will India start that, but I think it's already started in Asia.

Niyati: Yeah, no, I think it's time that we need to stop being scared of it. But include it in our work to make our life easier, make things more cost-effective and time-effective and efficient. So I think that is the future. And I think as in-house counsel, you're also thinking that. So it's great that we're both thinking that it is something that we don't need to be scared of. So generally, Mehak, in your experience, because you do see oftentimes disputes, what do you think is the outlook on the future of construction arbitration in the APAC region? What are the trends? What do you think? Are you going to see more disputes? Are you going to see less disputes? In my opinion, for example, I think there are newer projects, especially in the APAC region, there's a lot more investment and a lot more development. So there might be more disputes because of more projects, as simple as that.

Mehak: I think the disputes are not going anywhere. No matter how much you try, construction disputes are very, very heavy on investment. And they span across a really, really large chunk of time. And because they are so costly, you have a lot of every single day of delay is causing you to deplete contract margin. And there are too many factors that you're trying to coordinate at the same time because typically for construction disputes you will have procurement happening from one end, manufacturing happening somewhere else. Everything being delivered to the site and then work happening over there. So there are just a lot of jurisdictions to coordinate on as well typically. So the disputes are not going away anywhere and if the projects are increasing so are the disputes going to but I think the mindset of people is probably changing for the better like I said towards we're trying to work towards claim avoidance or we're trying to go into mediations to be able to avoid the entire arbitration process also now so the mindset is changing but that's not something that's going to happen overnight so if you're looking at the near future then the disputes are not going away anywhere.

Niyati: Yeah I think you're right we are seeing more and more parties amenable to getting into negotiations pre-arbitration and sometimes they don't work and oftentimes I see they don't work because that that's when we get the work right when they don't these negotiations don't work or these mandated mediations don't work and then we actually have to commence arbitration to protect your interests so I agree with you they're not going anywhere. Kkay moving on to some lighter topics Mehak it's actually this is not as light but it's not as heavy as construction disputes. I want to do, first of all, congratulations for being a part of the newsletter and blog steering committee of Indian Women in International Arbitration. I'm curious to know from you two things. One is, what drew you to apply to be a part of IWIA? And can you answer that? And then I'll ask you the second question.

Mehak: So I think I'm a staunch feminist. So and I have been part of a lot of diversity, initiatives and women-related initiatives within the organization as well in the past. So anything that is trying to uplift women, women for women, I’ll always be game for.

Niyati: Well, that makes my heart happy. I, as you know, I definitely have the same belief. The other question is also related to diversity. We talk a lot about law firm diversity and there are statistics and firms are now a little bit more open to understanding if there is or there is missing diversity or how they can make sure that there is equality in representation. Do you think you're seeing the same movement internally within companies? And are you seeing, is there enough diversity in in-house councils in in various companies and even in I mean I don't need to talk about your specific company but generally do you think in-house council also struggle with not seeing enough diversity especially in in very technical fields I think

Mehak: So if you're talking about in diversity with in-house councils I think we have relatively enough diversity there but if you're going to talk about technical fields or the renewable sector the answer is a clear no it's not there and I struggle to understand that sometimes as well I think one of the reasons would be that when we're clearing college or rather even when we're doing if we were to do masters there is no specialization in the renewable sector or in construction as such you know at best you can do ADR or you know any specialization that you choose so it is something things are coming up now I do know that I think in India also somewhere And some colleges are coming up with some construction law related diplomas or whatever. But at least since the time I started out, it's a path that I took. And then I pursued that path. So there is no prior training. So it's almost like a chicken and egg situation that they want you to have prior experience. And so how do you get in? And when you get in, you don't know how to get out. So if I was to change my industry now, I'm in such a niche market that it would be very difficult for me to change now.

Niyati: Yeah, no, I think it's a ground level up. Training is so important and you're absolutely right. And last week, actually, I was talking to somebody. I was in D.C. And I was talking to somebody who did their master's in oil and gas law. And I had no idea that even existed until just last week. And so I hope there's more law schools which are open to this. And with the renewables sector growing at the speed that it is, I think it's definitely something that we can build expertise in. So we're coming towards the end of the podcast, Mehak. You've been really patient and you've answered all questions so brilliantly. What is your advice to young lawyers who are aiming to go in-house or just generally enter the legal profession at law firms as well? Just if you have a piece of advice for younger lawyers.

Mehak: I think perfectionism is overrated. I don't think... Any of us have gotten where we have without making mistakes. You're bound to make mistakes. Just try not to repeat them and don't make them deliberately. So, you know, yeah, I mean, I think what something that my father used to always tell me is that error of judgment is forgivable, not error of intent.

Niyati: That's a very wise quote.

Mehak: Yeah, so that's something you used to always tell me, which is, I think, the mantra that I follow. So I mean, I make mistakes, everyone else does. You have to learn to forgive yourself and try not to repeat them.

Niyati: Yeah, I think that's a great advice because especially when you're younger, you want to make no mistakes because you know there is a lot of pressure, especially as a female diverse lawyer. I think there's a lot of pressure to be perfect. So to not make the mistakes again is, I think, one thing that I would definitely tell younger lawyers to do is learn from your mistakes. It's okay to make mistakes. And I hope you have supervisors who forgive those mistakes and let you. Yeah, I think that is equally important just to have a supporting boss, you know, who lets you make and learn from those mistakes. Okay, for the last question, it's to end on a lighter note. I know you have a sweet tooth from our past conversations. What is your favorite dessert in the world? What is one thing you can eat forever? Forever? One dessert.

Mehak: A hot chocolate fudge sundae.

Niyati: Okay, is that from Nirula's? Is that one of your favorite ones?

Mehak: Yes! Yes!

Niyati: Okay, well, I did not know that. But it used to be my favorite when I was a kid. And we couldn't eat so many sweets when we were kids, right? So I used to love that. But, well, that is such a... I know exactly what you're talking about. But thank you so much, Mehak. Thank you for joining us today. I appreciated all the time you took out and answered all our questions so candidly and so honestly, which I appreciate. Thank you, everyone, for listening. And I hope you listen to our next episodes of the Arbitral Insights podcast. And we'll see you next time.

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 [email protected]. 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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Transcript is auto-generated.

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. 

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 [email protected]. 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.

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.

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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 to our latest edition of our Spotlight On podcast series. And I'm delighted today to have as my guest, the fabulous Rebeca Mosquera, who is not only one of my colleagues at Reed Smith, based in our New York office, but is also the president of ArbitralWomen and does a wonderful role in that position and is a real champion for women in the world of international arbitration. In all its various forms. Hello, Rebeca.

Rebeca: Hello, Gautam. Thank you for the introduction and for the invitation. I don't know if you know this, but I have been following Spotlight On for a while now. And so it's exciting to finally be on the other side of the microphone today.

Gautam: Well, it's fabulous to have you. And I'm looking forward to our discussion, not least because we're going to be covering some topics I know of very much mutual interest and ones on which you are perfectly qualified to give us your thoughts. One of the things that I think is always wonderful is someone's background, how they got to where they are now. And I know because I know you well, Rebeca, that you've got a very interesting background to how you are where you are now as a senior attorney at Reed Smith in our New York office. It's a fascinating background and I wonder if we could begin with that and I could hand over to you to tell our listeners about your background, your journey to where you've got to where you are today.

Rebeca: Absolutely, Gautam. So as you know, I was born and raised in Panama, where my legal career started, mainly focusing on corporate transactions and domestic disputes. But, you know, life took a surprising turn when I moved to Alaska to work with Shell Oil. At Shell, I was involved in upstream and exploration work, which was an extraordinary experience. It truly gave me a deeper understanding of the business side of a large corporation. And I think that is something crucial for any attorney who wants to be well-rounded. After my time with Shell, I moved back into private practice, and that's when I had my first exposure to investor state arbitration, which is what I do now. It was a construction dispute, and I found myself learning everything about asphalt viscosity because the case centered on the rehabilitation of a major road network, part of the Pan American Highway that stretches across the Americas. And at that time, I had just finished my master's of science in project management. So that became real handy. And it was fascinating. And that's when I realized I wanted to dive deeper into this area of law. And that led me to further my studies at NYU, get dual qualified in New York. I was already qualified in Panama since 2004, 2005. And from there, I've had the opportunity to work on many international disputes, which has been both challenging and incredibly rewarding.

Gautam: Yeah, it's a real fascinating story you've got there, Rebeca, because, you know, you know, you're a native Spanish speaker. You had to learn English as a second language, which is not as easy as some people might think it is. And you've lived in many different countries. You've been exposed to many different cultures and ways of life. And now you're in New York. And did you come to New York because of your studies to do your master's? Was that the primary reason why you landed up in New York?

Rebeca: Yes, that was the primary reason why I landed in New York. But I'll be honest, Gautam, I never thought I would end up living in New York or Alaska for that matter. I studied law because I had no intention of leaving home, which is Panama. But here I am almost 20 years later. And something that you will appreciate, you know Manhattan well. So I lived at the NYU Law School campus in Greenwich Village. That's on 4th Street. And I remember at the beginning of my studies walking up to 14th Street, which is Union Square. And I'll tell myself, okay, this is as far as I will go today. I will not there go beyond 14th Street. I was completely overwhelmed by the sheer scale of the city. You will think after Alaska, I'll be ready for anything. But New York is its own kind of challenge. The energy here pulls you in and can take everything from you. But if you embrace it, the city gives back tenfold. Now, I am an avid walker, which has earned me the nickname of Juanita La Caminadora, kind of like Johnny Walker, but in the feminine version.

Gautam: That's very good. Now, I didn't know that, Rebeca. I didn't know you had that nickname ah now you i've learned something new!

Rebeca: Yes no I love walking and and honestly I did the same when i visited london for for the first time in in June 2021 obviously there was no much like no many people on the streets but and I walked everywhere and I feel it's the best way to discover you know those hidden gems that make each city so unique.

Gautam: Absolutely. No, no, that's, I couldn't agree more. And, you know, one of the other things that I know from your background, which is, which I think is, is fascinating, and which I think our listeners will be very interested in, as we deal with this particular segment is that you started out life in Panama as a corporate lawyer. And you know naturally because Panama is well known for being the hub for corporate transactions so not surprising then and then as you said you moved to the US to Alaska and you worked in the energy sector and then your practice gradually evolved into dispute resolution so tell us a little bit about sort of whether you still do any corporate work and how your corporate background has helped your dispute resolution work.

Rebeca: No, absolutely. You know, when you graduate in Panama, which is a civil law jurisdiction, you kind of do everything. But my focus was primarily on corporate. And, you know, I went from being a corporate attorney in Panama to focusing on disputes in the United States. That has helped me a lot because I've found a real niche in bringing or assessing disputes related to Latin America, not only in international arbitration, but cross-border litigation as well. So it really has been a way of building a wholesome practice. And while international arbitration and cross-border disputes are the core of my work, something, as you mentioned, many people might not know is that I have also developed a niche practice focused on luxury brands in Latin America. I often collaborate with our Paris office on these matters. It is a highly sophisticated area of law. It blends commercial, intellectual property, and contractual elements. And it is really fascinating. So, you know, for me, just having gone full circle from corporate to disputes and then somewhat back into corporate in a more niche area. It just makes my practice very interesting, dynamic. And now on top of that, I've become deeply invested in technology, particularly the role of AI in arbitration. And I think this is a shared interest, as you might know with my husband, Ben Malik, who shares the Silicon Valley Arbitration and Mediation Center Task Force on the guidelines for using AI in arbitration. I think AI, it's really transforming how we approach everything in the legal field. And, you know, it's making processes far more efficient and dynamic. So, you know, like I said, although disputes are at the core of my work, I tend very, in an almost daily basis, to also do other types of things, mostly in the luxury field and in technical and tech disputes.

Gautam: Fabulous. Thank you, Rebeca. Yeah, I mean, see, the thing is, I know a lot about this, but I think our listeners will be fascinated by the many facets to your background, your practice and your interests. So thank you for sharing all of those great points with us. Now, let me ask a slightly different question. Given that you grew up in Panama, you practiced in Panama, then you went to Alaska, then you came to New York, along the way, you must have had a number of people who were very instrumental in making you who you are today. Some people who inspired you, who gave you incredible encouragement and who really helped you get to where you are today. I wonder whether you could share with our listeners some of those people who've been really important to you as you've made this progression through your life.

Rebeca: No, absolutely. I mean, there were, there've been, you know, a few key figures that immediately come to my mind. And I think that we'll be here a long time if I mention all of them by name. But, you know, of course, you'll be too humble, Gautam, but you have been one of those tremendous influences, the same as John Fellas, who you know well. Your leadership, championship, you know, and guidance have played a big role in shaping how I approach my work. You know, I grew up in a family where we celebrate women. So I'll have to say that my late mother has been a constant source of inspiration for me. She was an extraordinary lady and someone ahead of her time in so many aspects, especially when it came to taking space as a professional woman. I also draw strength from my family. You know, I have two daughters who they are, you know, fearless and genuine. They truly put things into perspective for me. And my husband, who is an incredible partner, he is the reason I am able to do so much in my career. And, you know, I'll be amiss if I don't say and mention that more recently, I've realized that I inspire myself as well. I think that's something important for anyone to acknowledge, understanding how much you've grown and letting that sense of achievement propel you forward with a strong sense of purpose. That's a tremendously powerful feeling to me. And I'm happy to be there, wake up every morning and look at myself in the mirror. I said, you inspire me every day, Rebeca. Let's do this.

Gautam: Well, you are definitely somebody, Rebeca, I can tell you. And you know, you'll be too modest to say this about yourself, but the resilience that I know you've shown and the determination that you've shown, everything you've done, you've achieved through your own merits. And I think that's one of the greatest accolades I could ever give you. Knowing you as I do, I very much admire all of those qualities that you have because you are where you are today because of all of the people that you mentioned, family particularly, but also you, right? You know, you've driven yourself. You're self-driven. You're a self-starter. And that's a wonderful example, which leads beautifully to your presidency of ArbitralWomen, because... And again, you'll be far too modest to say this yourself. So me being the host of the podcast, I get the prerogative to embarrass you and say this about you. But we'll of course talk about ArbitralWomen in a second and your role, your plans for it. But our listeners, I think many of them will have heard of ArbitralWomen. It's an international organization which exists to champion, encourage, and really drive forward the talents of women arbitrators, women arbitration practitioners, aspiring arbitrators, aspiring lawyers who are women from all nationalities around the world. It's a very prestigious organization, and I'm incredibly proud that you, Rebeca, were elected a short few months ago to take on the presidency of that wonderful organization. And that's something that, again, is to your merit. You've achieved that on your merit because of your reputation, because of how well people regard you. And that's a wonderful, wonderful thing. Let me tell you, that's a wonderful, wonderful thing. And so tell us a little bit about, I mean, I know I've said a little bit about it, but in terms of ArbitralWomen, tell us a little bit about how you came to be involved in the organization. And just share with us your plans now that you're at the head of the organization. Tell us a little bit about your plans and ambitions to further grow Arbitral Women and to further act as an inspiration to all the women out there who are in the field and who want to be in the field.

Rebeca: Thank you, Gautam, for those words. And, you know... Serving as president of Arbitral Women, it's both, to me, a tremendous honor and a significant responsibility. As you very well said, our organization has spent over three decades advocating for gender parity and diversity in dispute resolution. And I'm incredibly proud to continue advancing that mission. And how did I become involved with ArbitralWomen? If I look back, I don't remember a time where I was not involved with ArbitralWomen. Obviously, I became a member, I think, about 2015, 2016. And then, you know, working with the organization, little by little, I made my way into the board. And right now, this is my third term, and it's been almost six years with the board. And now, you know, as its president, my vision right now for ArbitralWomen is to not only support women dispute resolution, but also to create an environment where women from all regions of the world feel empowered, represented, and able to thrive. I mean, if you see our board right now, you can see a variety of backgrounds. And that's just a testament of how global this organization really is. When we talk about diversity, equity, and inclusion, they are absolutely crucial in our field. And that's why I feel so strongly about it and how I feel that I am in a very, you know, in a position with a huge responsibility because while we've made meaningful progress, in my view, there's still much work to be done, particularly in ensuring that women and other underrepresented groups have equal access to opportunities in the law. And I think I've mentioned this to you before, but it is very difficult, right, to ask for what you deserve when you don't see yourself reflected in The people making decisions. So some of us have to trailblaze to pave the way for others. And I believe that's part of our responsibility.

Gautam: Well, you're certainly doing that. You're leading by example, which is the wonderful, wonderful thing. And I also know, although I obviously don't know as much as I would love to know about ArbitralWomen, but I'm learning all the time from you and others who I know who are active in ArbitralWomen, that you have a really broad, as you mentioned a moment ago, a really broad membership from many, many countries around the world. And now, as you and I both know, concepts of diversity, equity, and inclusion are more developed in certain jurisdictions, and they are developing in other jurisdictions. So I wonder, are there any particular jurisdictions where you're particularly keen to further grow the reach and impact of Arbitral Women?

Rebeca: Yes, absolutely. We continue our work in the Middle East, in Asia, And we have, I mean, from a recent trip that you and I had to India, Gautam, we have a great number of members in India as well. So, and we, like I said, I have said this to the board before, I know that our strength and power is in our unity. So those are jurisdictions that we continue to put forward all of our effort. And also in Latin America. I mean, those are jurisdictions where, although, like I said, we've made progress, but they're still very much male-dominated.

Gautam: Yes, and it's only by everyone doing their bit that we'll change these sorts of things. And I know there's a lot of work that everyone can do, not just women, men like me who are allies and who encourage and who seek to push for change. I think that's really important because, you know, as you said, there are some jurisdictions where these concepts are yet to fully blossom. And it's by dialogue, by communication, by advocacy in these jurisdictions, encouraging people to be involved, that we get there. And you know I've got no doubt Rebeca that under your leadership ArbitralWomen will make huge inroads into many many jurisdictions and and I look forward to seeing that you know you mentioned a moment ago Rebeca that you and I had just been on a trip to India as part of India ADR week and that was great to be there with you and with Nathan Menon one of our partners and we were in Mumbai and Delhi together, speaking at certain sessions. You were a speaker at one session. I was a speaker at another session. And we were very much involved in all the activities that we were doing during that week. I wonder if you could share with our listeners, and I'm sorry to ask you this question, because I know you're probably not expecting this one, but what were your key takeaways from your trip to India, right? Because it's obviously a very different place to Panama, Alaska, New York. So what were your key takeaways from that week that you spent in India?

Rebeca: Well, I mean, first I have to say it was an extraordinary trip. And you might, you know, this is something that our audience might grasp or not. But, you know, when I say extraordinary, the term extraordinary took on a more nuanced and playful meaning within, you know, our circle.

Gautam: It's a very British expression, isn't it?

Rebeca: And, you know, it became something of an inside reference. Look, I, like you said, you know, it was a great honor for me to join you and Nathan in that trip. And I mean, India's international arbitration is so vibrant. And the country is really making its mark on the global stage. As you mentioned, we were invited by no other than the MCIA, the Mumbai Center for International Arbitration to speak into sessions. And honestly, the scale of that event held across three cities was unlike anything I have seen before. You know, more than key takeaways, I, you know, I can, what I want to get at, and, you know, I'll get into that in a moment. You know, I also had the pleasure of seeing you and Nathan firsthand on the several business meetings that we attended together during our week in Mumbai and Delhi. And the sense of collaboration was incredible. It's really a testament to why we serve our clients so well, right? We love what we do. We do excellent work and we share, whether it's knowledge or opportunities or the spotlight, and we support each other. That, that to me was invaluable. And I'll have to say the amount of opportunities that are materializing from that trip is truly remarkable. You know, I was thinking about that, that trip, I don't know, I think it was a couple of nights ago. And one of my favorite moments was, I don't know if you remember when we were debriefing after a long day of, I don't know, so many meetings that we had. We were walking toward the lobby of the hotel next door, the Oberoi. And people started joining us little by little, you remember. But by the time we got to the lobby, we had, I don't know, a group of about 12 people. They all wanted to speak with you. You were like a magnet. And it was very special to witness that. And I remember we all sat around. and you have a talent, Gautam, for bringing people together and we all share special things about us. We introduce each other and I think I knew more, I got to know more about those 12 people or those 11 people in the room that if I would have done it otherwise at a breakout session or something. So that was an incredible experience, that trip and I hope to be back and continue supporting our amazing India business team that you lead from our London office. So thank you for the opportunity. It was amazing.

Gautam: Well, it was really great to have you. But one thing you must know and our listeners must know that those 11 or 12 people were there to see you, not to see me. I was just subsidiary. I was just subsidiary to everything. I just happened to be in the right place at the right time. They were actually all after to see you.

Rebeca: So you're doing it again. You're so good about giving the spotlight to others. And I had the great chance to honestly experience that in all of our meetings. You don't get that a lot from a more senior partner or more senior colleague to just make an introduction, talk so well about the work we do, and then just say, but here's my incredible colleague Nathan, here's my incredible colleague Rebeca, and this is what they're doing. And it's just, you know, I thank you for that, because that's also, as we were talking before, one of the ways of creating more diversity and making an impact on having that conversation, right? And giving others also the spotlight and the opportunity. So thank you for that.

Gautam: Oh, no, no, it was great. It was a pleasure. And, you know, that India trip was, it was hard work. Yes, we were very, very busy. But it was also great fun. I mean, you know, the nice thing, which I know many of our listeners will relate to, is that when you're with people that you enjoy being with, hard work, which is always hard work, doesn't feel like hard work. And that is one of my big takeaways from that trip. So now, as we now approach the end of the podcast, and you know, Rebeca, because you know me very well, I could talk for a long time. But these podcasts don't really encourage us to speak for too long. So I'm going to bring it to a gradual close. But before I do, as you'll know, Rebeca, the podcast that I do, I have a little section of them where I always end with some more lighthearted questions. We've spoken in the course of this podcast about your incredibly interesting background, your journey to where you got to now, the inspirations along the way, your passion for your family and for what you do, your passion for DE&I and your great sense of fun, which is obvious from your incredibly sunny personality that you have. But I want to ask you some non-legal questions some non-law firm questions and non-business trip questions so so do you have a favorite album that you listen to

Rebeca: So yes you know my my and I you know this is this is so interesting because during during that that trip and i think i knew this before i i know that you're a DJ, And I don't know if our listeners know a lot about that.

Gautam: Well, you're giving it away now.

Rebeca: So, you know, I'm very eclectic in what I like. But if I have to pinpoint one favorite album, it will have to be All That You Can't Leave Behind by U2. And there is a track in particular in that album. It's called Walk On. And it really resonates with me. It's all about resilience, as we were talking about before, and moving forward, which I feel mirrors my own journey in many ways. Toward the end of the song, Bono lists all the things that you can leave behind as you step into a new chapter of life. And as an immigrant, that really hits home. You know, something that I don't usually share with people is how challenging it was, you know, after I graduated from law school in New York. It was so hard to find a job. Firms were not hiring and they were not hiring LLMs in disputes, mostly because sometimes LLMs, you know, think the firms do not know how to, you know, where to place them. We don't have the same career track as, you know, summer and then first year and the like. So I don't know if you know, but I ended up working three different jobs just to get by. I was selling clothes on the Upper West Side, which, you know, taught me some pretty solid pitching skills. Oh, yes. I mean, New Yorkers are very tough to sell them anything. Then I was working the night shift at my yoga studio, which, you know, sometimes included laundry in exchange for what they call karma hours. So I could practice yoga for free. That experience really showed me how important it is to have something outside of work that keeps me grounded. And finally, I was a hostess at a restaurant on the Upper East Side. Where I learned the value of doing a great job for your clients, and in this case, for the people that came to eat. And they will not only refer you to others, but more importantly, they will keep coming back. And, you know, during all of that, I was couch surfing because I couldn't afford rent, which taught me the true value of living a frugal life and how closely it's connected to happiness. So in that journey just to you know go full circle I had to leave behind my all measures of success and embrace the path ahead and and it wasn't easy but looking back I see how every step brought me to where I am today with with a strong sense of destiny and purpose guiding me forward and well I'll also be amiss Gautam if I didn't if I didn't say that I'm a huge Bollywood fan So I really...

Gautam: Yes, I know. You love your Bollywood, don't you?

Rebeca: I do. So I really enjoy the music of Anki Tiwari, Arjit Singh and Siddharth Mahadevan. So, you know, there you have it. I'm an eclectic type of being.

Gautam: Well, it's the best way to be. Variety is a beautiful thing. And, you know, let me ask you one last thing before we close. Apart from Panama, is there a particularly favorite place a travel destination that you, Ben, and your daughters like to go to?

Rebeca: So, well, lately as a family, we've enjoyed Dubai very much, but we are planning to see if we can bring the entire family to India. Everybody keeps telling me that I should go with the entire family. Everyone that, you know, we met during that trip mentioned that. And my husband has been to Sri Lanka and so we were planning to potentially do you know the two countries at some point with the entire family so we'll see.

Gautam: Well, that's a wonderful way to end because that would be a beautiful thing for you all to do. Rebeca, thank you very, very much for being such a dear friend, a great colleague and a great champion for everything that you do. I'm very proud to know you, to be a colleague of yours, and I look forward to seeing you in person again very soon. And I think there's only one other way to finish this podcast, which is, as you know, my Spanish isn't brilliant, but I do try to practice my Spanish now and again. And I've got broken Spanish, as they say. I think for those of our listeners who know Spanish, the only way to finish this podcast is to say, apaga la luz.

Rebeca: Very well. No, that's amazing, Gautam. Thank you so much for the invitation again. And definitely, this is an apaga la luz moment. Thank you.

Gautam: Thank you.

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 [email protected]. 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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Transcript is auto-generated.

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 [email protected]. 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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Transcript is auto-generated.

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.

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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 latest edition of our Spotlight on Arbitral Insights podcast series and I'm delighted to have with us today as my guest the fabulous Eunice Shang-Simpson. Hello Eunice.

Eunice: Hello Gautam, thank you very much for that.

Gautam: It's really good to see you and I'm going to introduce you like I always do and in these things my challenge with introducing you, is to try to keep it to a manageable amount because you're such an illustrious person. But I'm going to try and do this as summarily as I can. So for our listeners, Eunice, apart from being a great friend, is an international arbitrator, mediator, and speaker. Eunice was formerly a council member of the Law Society of England and Wales. She is currently a lecturer practitioner at Canterbury Christ Church University in England and has recently achieved her PhD. Many congratulations again on that, Eunice. A superb achievement. And we'll touch upon your PhD thesis in the course of our podcast. She focuses in terms of her practice in international trade and investment arbitration, including investor state dispute resolution. Eunice is a member of the Ghana Bar, as well as being a solicitor advocate here in England and Wales. And she truly is, as I said in the course of my introduction a while ago, very illustrious. She also has experience of being a Crown Prosecutor and advising on policy. She, as I mentioned, is also an academic and we'll touch upon that in the course of our podcast. One other thing, and the great thing about doing these podcasts is we get constant updates. And just on this morning of this podcast, just before we were about to record this, I noted the wonderful news that Eunice has been made a Freeman, but I'd like to say a Freewoman or a free person of the Worshipful Company of Arbitrators. And that was further to a ceremony last week in London at the Mansion House that's a really wonderful accolade Eunice and that really is it's just so well deserved. I saw the photographs and uh and you know and I must say your outfit was absolutely stunning I've got to tell you, you wore traditional clothes. Absolutely you were looking wonderful I've got to tell you. So thanks again for being on and I'm much looking forward to our podcast, Eunice.

Eunice: Thank you, Gautam. That's amazing. Thank you for that introduction. It's such an honor. Thank you very much for inviting me.

Gautam: No, thank you. Now, let's start with how you found law or how law found you. So why don't you tell our listeners what first drew you to the law?

Eunice: Well, I've always been insatiably curious, I must say, since I was a child, always asking why, why not, and stuff like that. I'm the eldest of three with two younger brothers. I grew up with a close family and spent lots of holidays at my grandparents' home in Ghana in Cape Coast with several cousins. And I always seemed to be the one prepared to negotiate, you know, later bedtime hours, extra treats for everyone. Why not this trip? Why not that trip? So after a while, the grown-up started to say, well, I bet she'll be a lawyer. She's always arguing. And it kind of became a backdrop to my thinking without my being conscious of it, actually. The only lawyer I knew growing up was my grand-uncle, lawyer Sakiskek, who was a lawyer and a politician in Ghana. He was always very encouraging and supportive of me. So I guess I wanted to be like him when I grew up. And that's how it all started.

Gautam: That's amazing. Thank you. you and you know I’ve got to tell you you know looking back to when i was a student many years ago it just reminds me one of my most impactful lecturers that I ever had was a lawyer who also became a QC as it then was here but who was from Ghana and he was a lawyer too his name was Frank Panford and and Frank he taught us well he taught me the law taught but he also taught conflicts of law. And he was a brilliant legal mind. And I remember as a much younger man in my teens, this is back in my late teens when he was teaching me, I just remember how impactful he was. And so that just came to mind. I mean, it just shows these podcasts are not scripted, they flow. But look, thank you for that. And so in the course of your wonderful career so far, who who have been your career mentors and your biggest inspirations?

Eunice: Oh my gosh so many because where do I start? Shout out so I warn you there's so many and I've been incredibly incredibly fortunate in having so many mentors and inspirational people in my life my career I must say so first of all I shout out to Willaim Fugar who's the founding member, Fugo & Co. in Ghana, my first ever boss straight out of law school. And then also Elizabeth Howe, who was my first Chief Crown Prosecutor, who’s now a dear friend. Mike Kennedy, who was president of Eurojust when I was working at our European and International Policy Division, CPS headquarters in London. And Lord Peter Goldsmith KC, who we used to brief on policy matters when I worked at EID in London, when he was Attorney General. He was hugely inspirational. He managed to understand our brief so quickly and get to the bottom of it you know when you brief somebody and they just cut straight to the chase and you think oh my gosh he totally got this and he's been on a flight from the U.S. when we sent that by email I'm thinking he's actually taken all this on board so does he not sleep you know it was that kind of inspirational person. And then also the first chair of my supervisory team Professor Chris, Chris Beighton, he believed in me from the very first time I spoke to him about my PhD topic. We were on a panel in Arusha in Tanzania and he asked me, what are you doing? And I said, well, I just finished my LLM and I'm thinking of doing my PhD, asking my topic. And he's been really inspirational to me. Also the late Stephen Denyer, who was Director of Strategic Relationships at the Law Society, another hugely inspirational person in my role as Chair of the International National Committee and Chair of the Arbitration Working Group for the Law Society, it was always very encouraging to me. And most recently, my Dean and Pro-Vice-Chancellor at the University of Canterbury Christ Church, Professor Mohamed Abdel-Maguid. He's been incredibly supportive and inspirational in the short year that he's been my boss. So yeah, quite a few people. Each of them has definitely, in their own way, been an inspiration and also been a mentor. kind of, you know, when people... Sometimes I describe this to people as when you think there's a wall and actually there's a door, you don't even know there's a door that needs to be opened and people are there to open that door. I've just been incredibly, incredibly fortunate and I'm so thankful for that.

Gautam: Well, that's an incredible list in itself. And I completely agree with you, Eunice, that we're all the product of people who've been there for us, who've supported us and been generous with their time, their mentorship, their knowledge, and who've just believed in us. And I liked what you just said a moment ago, that you might be there and you might think there's a wall, but actually there's not a wall, there's only a door. And that's a very nice way of putting it. It's very good. That in itself would be something that I'm sure our listeners will take as one of the nuggets from this podcast.

Eunice: I hope so.

Gautam: Well, they will definitely. Now, one of the things I mentioned in my introduction is that you are an arbitrator as well as being an arbitration practitioner. So what, first of all, got you interested in the field of arbitration?

Eunice: Well, that's another interesting story. So after I left the CPS, I applied to study international law and international relations at the University of Kent. Now, a couple of weeks into the term, I was informed that the international relations aspect of the course that I'd started was no longer available. There had been a mix-up of some sort in the curriculum, and I was offered international commercial law. I think about this, I'd been doing criminal practice all my life, and I had no idea, except College of Law, Belford back in the day, about international commercial law. I was not happy. But there seemed to be no other choice, so reluctantly I agreed. And one of my modules was WTO law. Shout out to Professor Donatella Alessandrini. Who was my lecturer then. And another module was international arbitration, taught by Professor Gwengo Duntun. It was he who suggested to me that I seemed to have an aptitude for the subject. So he suggested that I contact the Charter Institute of Arbitrators, become a student member, and then find out if I could be offered some exemptions on the membership route due to my previous working experience. So I thought, okay, why not just listen to him? So I did, and the rest is history, as they say. For another shout-out, I must go to Jonathan Wood, who before he was president of the Charter Institute of Arbitrators, took part in what they called a Meet the Officers webinar. This was during lockdown, and I attended that. While I was listening to them, I realized from his introduction that his career had started as a criminal defense lawyer, highlighted by a successful acquittal for a mother charged with murder. So I reached out to him via email because I'd never come across anyone who had made a successful transition from criminal practice to an arbitration practice. He was also very gracious and very encouraging, and he remains so today. In fact, he graciously agreed to chair a Vis Moot-style workshop for my students on the 1st of May, which was a great success. So here am I, from arbitrator to prosecutor. That's how I got interested in arbitration.

Gautam: Well, that in itself is an inspiring story. It just shows the doors can open and you can move through the doors just because you start out as a prosecutor doing criminal law doesn't mean you can't then get involved as you are in investor state arbitration on the one hand. So again, that's another, I'm sure will be another source of great inspiration to many people listening to this podcast.

Eunice: Thank you.

Gautam: And, you know, I was talking about your, you know, some of your career highlights. And obviously, you go from prosecutor, you've advised on policy, you become a practitioner, you're an academic, and we'll come to your academia in a short while in this podcast. But just in terms of some of, if you were to step back in just a nice, humble way, I'm not asking you to sort of big yourself up, because I know it's always hard for people to big themselves up. But just tell us some of your, in the course of your career, some of the highlights that if you were to look back in the course of what you've done, some of the highlights or some of those transformational moments in your career. I mean, that would be great if you could do that please.

Eunice: So, for so many, I'll just talk about, I think I'll just talk about, obviously, when I started, obviously, you don't do this, but I started with Fugo & Co. in Ghana. A firm in Accra and my boss there, well you forget, was really, really inspirational. And I'd just come out of law school, but it just underlined to me that I really wanted to do this job and I really wanted to be a great lawyer like he was. So for me, that was a great highlight for me to understand that actually I was on the right path. But I would say, I guess highlight I'd say, is when I started doing cross-border crime work. I moved to our headquarters in London, at that time it was at Lightgate Hill, and doing European International Division, doing policy work. It was really interesting to be able to work with our colleagues in Europe, our fellow prosecutors, fellow police officers. And then moving on from that, I went to Eurojust. I applied for a position as a seconded national expert to the UK desk at Eurojust, that's representing the UK in mutual legal assistance negotiations with other member states. Taking part in joint investigation teams for cross-border investigations. So we would form a joint investigation team if we needed, if there was a particular case which needed basically joint investigation. So, for example, we had one where we had to have a team from the Czech Republic and a team, our team as well from the UK to deal with a matter that was there was a forger in the czech republic was forging very high quality passports and sending them all around so we had to have a big cross-border meeting at Eurojust where other members from member states arrived at, discussed the matter decided how best to proceed with the investigation how best to actually get the information we needed and the evidence we needed so our colleagues in the Czech Republic could actually do the prosecution. And it was things like that, that for me, it's just been able to work with so many brilliant minds from across the UK. And when we finally managed to have a successful arrest, both in the UK and the Czech Republic. At the same time, we had to go to the Czech Republic, had a big press conference, and it was all in Czech being translated. I said to the National Department at the time, I said, Pavel, what are they saying? He said, don't worry, Eunice, I'm listening. They're saying the right things. They're saying all the correct things that happened. But it's things like that, working with really, truly amazing people across the globe. It's just been brilliant, yeah.

Gautam: Excellent. Thank you. Now, let's turn to your life in academia, because as I said, you recently achieved your PhD. So you're now Dr. Eunice Shang-Simpson, yet another badge that you can wear on your lapel. And, you know, just tell us a little bit about your PhD. So and what your thesis was about, and why you chose that thesis. Also you know I mean, I’ve only done a bachelor's and a master's…

Eunice: Only? That’s hardly only.

Gautam: Well yeah but the thought of doing a PhD and putting myself through that torture somehow although it is appealing on the one hand because I do because love the study of the law as we all practitioners do but the thought of spending a minimum of three years or so studying and then and doing a thesis and having that discipline scares me. So what inspired you to do that? And why did you choose your thesis?

Eunice: Well, you see what inspired me to do that? It probably seemed a good idea at the time, is all I can say to start this. But it was a great discipline, I must admit. I started doing it full-time. The idea was because when I left the CPAs, I said I wasn't sure what I wanted to do. But I had always, in the back of my mind, wanted to do a master's. And I thought, well, this is the time now I've got more time on my hands. Why don't I do that? I'd just applied, went and did my master's at the University of Kent. And it was after that that I got, I suppose, the academia bug bit me, shall we say. And I had an idea for a PhD thesis that I thought, do I really want to go ahead with this? So I thought I'd do that full time. And that was the idea. I'll just do it full time, get cracking for the discipline for three and a half years or so. When I started doing the PhD at Canterbury Christ Church, I then got offered a full-time role there, a position there. I started in 2019 in October, got offered a full-time role there. So as a result of that, the PhD was then made into a part-time PhD because obviously I was teaching full-time as a lecturer practitioner there. And so it's taken me nearly five years to do that. So, yes, that is a huge discipline. And what I'd say to anybody interested in doing this is, first of all, please choose something that you're passionate about, something that you're really interested in. My topic was a legal analysis of the impact of Ghana's international investment agreement on regulatory autonomy, potential solutions, basically in a nutshell. shelf. So I was looking at regulatory autonomy of host states, the impact international investment agreements that they had signed, usually bilateral investment agreements, had on their regulatory autonomy. And why did I choose that? So again, talking about meandering careers and doors opening and pathways that you did not anticipate. I did, when I started, I decided that I wanted to become an arbitrator. I did a period of internship at UNCITRAL in Vienna at a time when the UNCITRAL Working Group 3, which was tasked by the commission in 2017 with the mandate to work on the possible reform of investor states, dispute supplement ISDS, was starting out. And I had the opportunity to go along to New York to listen to the deliberations of Working Group 3, the UN there, which was a great experience in itself. And that got me interested in the problems that abound in the ISDS universe. It's not all bad by any stretch of the imagination, but there are problems, which is why Working Group 3 is in place looking at how best to resolve these and that got me really interested in okay is there another way is there possibly another way of resolving these or getting to the bottom of these problems and my view was that it's better to start at the negotiating table to ensure that there are provisions that are fair to both parties not provisions whose sole aim is the protection of investors investments which is how it all started 50 plus years ago and that's it's not changed much but it is changing now but anyway that was my my journey and that's what I was interested in and yes that's what my PhD was about.

Gautam: Well, very well done. It's a it's a wonderful accolade and you know again you were clearly passionate about that subject as you said if someone wants to do this thing to choose something that they're passionate about because it's a big commitment to do and hopefully now are there plans to publish your thesis as a book?

Eunice: Well funny you should say that so my examiners graciously suggested after first after they put me out of my misery when I came back because what obviously at viva they grill you for an hour and a half something something like that, then you go away and have a cup of coffee or whatever you need to do to calm yourself down. Then they deliberate and then they call you back. So when they called me back, first thing they did was very graciously put me out of my misery by announcing that I had actually passed viva. And then they suggested that they would be happy to provide any guidance and assistance if I wanted to publish my work. So once I've completed my minor corrections, I will definitely take them up on their offer. And then we'll see where that leads.

Gautam: No, you should definitely do that. I really think you should. You know, I'm again, and again, this again shows this is completely unscripted because I never script these podcasts. Another one of my excellent lecturers that I had a big impact on me, and this time on my master's, was Dr. Fidelis Oditah KC, who practices from 3 to 4 South Square in London. A wonderful legal mind and he was one of my lecturers on my master's and he did his PhD thesis which was then published as a book and was one of the core textbooks on our course. And it's called and I still remember the name Legal Aspects of Receivables Financing, and Fidelis is a incredible -

Eunice: To remember the name it must have made an impact on you!

Gautam: Oh yeah yeah no and it's It's still such an influential book, but I still remember the clarity of thought and how learned he was in speaking and in writing. It was a big influence. And as a younger man, you know, when you see people like that, who are your teachers, who are literally your teachers. You learn a lot and you try to emulate them. So I'd like to think that many people will emulate you as a consequence of your publication. So I look forward to seeing the book in due course once you've made those corrections, and I'm sure there'll only be about two things you change. I look forward to seeing that. So now, what's next for you in terms of academia? Because you're obviously a lecturer, you've done your PhD. How do you now want to take forward your life in academia with your life as an arbitrator and as a practitioner?

Eunice: Well, yes, good question. Thank you for that question. Obviously, I am a lecturer practitioner at the moment. My other hat actually in academia is, I mentioned my dean who's been very inspirational. A year ago, I applied for the referred to as an 0.4, which is a part-time role within the university. So now I'm part-time as a lecturer and part-time as faculty strategic lead for equity and inclusion. So I've been working very hard with my colleagues on the DEI team here to ensure that we're really not just saying it, but we're in reality a proper exemplar for equity and inclusion in the higher education space in my role, in that role as faculty strategically for equity and inclusion. And to work to make sure that our students, both our home students and our international students, all have a really positive experience here and feel that they belong in an environment where they're fully supported to be actually the best that they can be in terms of not just their grades, but also in terms of preparing them for their future careers. So, for example, as part of my lecturer practitioner role last year, we set up a series of internal Vis Moot competitions here at the university and the team that actually won. I'm so proud of them because they were first year students at the time and they actually won the competition. So we took them to the Vis Moot in Vienna this year. And that's the kind of thing that I want to go ahead to do more of, to bring my practitioner experience to bear on my lecture experience. And then it's my equity and inclusion strategic lead role as well. So that's short term. That's what academia has for me.

Gautam: That's fabulous. And this, again, leads beautifully. Again, it's completely unscripted how nicely you said what you said, because it leads into what I was going to ask next. One of the things that I know you and I share a great passion for is better and greater diversity, equity, and inclusion. You and I first came across each other in that context in the scope of a research project that you and I were both being interviewed for. And I came away from that session much enlightened, I've got to tell you, by speaking to everyone.

Eunice: Nice to know. I forgot to ask you that.

Gautam: No, it was incredible. No, I think that was a great experience for us all, because there's no monopoly on wisdom. And we all learn from each other. So, you know, your role at Canterbury Christ Church University, as you mentioned, will involve achieving greater and better equity, inclusion, diversity for students, both home students and foreign students. But one of the things that's always interesting to me is how we achieve that. Now, it's clearly important that people can see. People like you leading from the front, right? Because it means a lot when someone sees someone and they think, wow, I want to be like them. But just tell us just a few things in summary. I mean, I know time is against us, but just a few things that you think will be critical for you in your role to achieve that greater diversity, equity, and inclusion.

Eunice: With regards to arbitration and equity and inclusion in the arbitration field, I think what we need to do is not to be afraid to question the status quo. What I mean by that is that not to be afraid of setting, for example, meaningful targets and holding ourselves accountable for achieving those targets. So the reason why I'm saying this is very recently, yesterday, actually, as chair of the International Committee of the Law Society, I was conducting interviews for new members for our committee yesterday. And I was very impressed by a firm which had set definite targets for a certain percentage of female partners in their practice. They achieved that before the target date. So they reviewed it and they set an even more ambitious target to be reached by 2029 with transparency. And I think that's really important so they could be held accountable. And another prospective candidate described his approach to DEI by saying that we're all diverse and what makes the difference is inclusion, that it's important to receive an invitation to the party, yes, but are we allowed to sit down and eat? And are we allowed to dance at the party? Or does the invitation come with a veiled caveat of behave in a certain way? So I think it's It's important that we make our students, when we talk about the university, and also arbitrators of all backgrounds feel included, feel that they belong at the table and feel that literally there is a space for them at the table. I also think we need to get behind initiatives like Amanda Lee’s Women in Arbitration, where she highlights achievements by women in arbitration every Friday. If you don't follow it, you should. It's really, really impressive. And also Professor Emilia Onyema at SOAS, she has started AFAS, which is Arbitration Fund for African Students. Is an organization that was started by Professor Onyema and myself and a few others. As we're all trustees of this organization. And we have an ambitious program with the AFAS-ADR Student Connect Initiative, where we aim to reach out to provide basic ADR training to high school students and also university students in African countries. We did the very first one in Ghana earlier on in the year, this is April. And then in Uganda, one of my colleagues did that. We're going to be doing two other African countries this year. But the whole idea is to get African students at a very basic level, the high school level, interested in arbitration, then be able to connect them with the university students and connect them with practitioners in their jurisdiction and eventually connect them with practitioners outside their jurisdiction. To have almost like a pipeline of arbitrators who know from the outset that they have the support of practitioners in the field and that there's a pathway for them. So there isn't this feeling of, well, perhaps I'm not going to be able to progress in my career but actually to know that they will be supported throughout their career. So those are the initiatives that I think we should be seriously looking at when we're talking about equity and inclusion in arbitration.

Gautam: Yeah, brilliant. And it's all wonderful. And thank you for sharing those great thoughts with us. Alas, time has caught up with us, but we always end these podcasts, because it's very popular with our listeners, with some more lighthearted questions. And you will be no exception, because it's always nice to ask some of these more lighthearted questions of fabulous guests like yourself. So let me ask you two questions, which are just brief questions, and you can just give your thoughts on this. So most of us have a favorite album that we love, and it's often difficult, because I know I've got but more than one, but is there a favorite album of yours that you enjoy listening to, and why is it your favorite album?

Eunice: Okay, this is going to be a bit sad, but I have a favorite album. Which is Stephan Mokius' Tales of Solace. And he's actually brought out a very new album called Legends, Myths and Lavender Fields recently in the past month. But I love this because that was my constant backdrop in the library when I was studying. And he has a lot of music. He is a piano player and he's an exquisite piano player. And his music has been a backdrop to a lot of my studies. So for me, those are definitely his Tales of Solace and another one, Le Jardin de Monsieur Monet. And also this new one, which I'm going to be listening to when I'm not studying.

Gautam: Well, that sounds good. And you can note and give him a shout out in the preface to your book, your thesis, that his music helped you and stuff. And then last question is this. Have you got a favorite travel spot that you love to go out. By yourself or with your family?

Eunice: So my favorite travel spot of all time that I love to go is a little place or just a little place up in the lake district called Underscar don't know most people have never heard of it but it's our best kept secret it's just amazing because it's you can just be there by yourself or with family it's my little bolt hole I just love time there I usually go there in January because I have a timeshare there. And people say, why did you go to the Lake District in January? Well, I happen to love the snow. I'm crazy like that. I love walking in all kinds of weather. People, we all say there's nothing like bad weather. It's just badly dressed people. So my aim is next time I go there, I'm going to definitely get to the top of Skiddaw because I've been trying to get to the top of Skiddaw and I haven't succeeded. So that's my favorite place under Underscar Lake.

Gautam: Brilliant. And you know that's now no longer a well-kept secret which is great right. But look thank you very much Eunice it's been a real genuinely a huge pleasure to do this podcast with you I've admired your achievements for a long time and I just love to be able to share your story with our listeners and you've done that wonderfully in the course of this podcast so thank you very much and I look forward to seeing you in person very soon thank

Eunice: Thank you so much, Gautam. It's been such an honor to be interviewed on your podcast. Thank you for inviting me. And thank you so much.

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 [email protected]. 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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Transcript is auto-generated.

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 [email protected]. 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.

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.

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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. And with that, let's get started.

Andrew: Good morning. I'm Andrew Tetley, a partner at Reed Smith in the Paris office. Welcome back to Arbitral Insights. I'm joined today by Eckart Brödermann, who is a professor in Hamburg, long-time involvement in arbitration, and founding partner of his law firm in Hamburg, Brödermann Jahn. The subject that we will be touching on in some depth is the UNIDROIT Principles of International Commercial Contracts, but also hopefully getting to know a little bit more about Eckart for those Music. of you who know him, learning something new, and for those of you who don't, learning about him from scratch. So welcome, Eckart, and thank you for giving your time over for this podcast.

Eckart: Thank you so much. Good morning.

Andrew: Let's start with a short introduction. So tell us a little bit about your background and your association with the UNIDROIT principles of international commercial contracts.

Eckart: My background, in a nutshell, at age 18, I left Germany. I spent four years in your beautiful city of Paris. DEUG, licence, maitrise fully studied in Paris, then moved on to Harvard. At that time, Germany wouldn't recognize any title from Paris. And Harvard said, I don't care whether you studied in Germany or in Paris. So I spent my time there where I started focusing on Chinese law, East Asian Legal Studies program. Thereafter, took the New York Bar, worked in a large law firm in Washington, D.C., Steptoe & Johnson. At age 24, decided what to do at age 40. I don't have any education in my home country, so I went back and started studying for the third time. Since my second studies, I financed everything myself, including loans to finance Harvard, and I always worked part-time in the legal business to finance all that. And ever since, I'm working, I'm loving the law, and I'm giving full speed. But, of course, I learned that the same thing you learn in one country happens to be wrong in the other country. You also learn that the problems of the people and of the companies are all over similar. In the end, we want to realize our dreams, we want to build business, we want to realize business plans, and for that we need tools. And I always have been both on the contracting side and on the arbitration side. Arbitration, I got to grow with the Iran Claims Tribunal in the early 80s and the UNCITRAL Rules. So, with that said, how did I bump into the UNIDROIT principles? In the beginning, I was, as many possibly in the audience have never heard about that, it starts with the word UNIDROIT. UNIDROIT is an abbreviation. It's a French abbreviation for the international organization called International Institute for the Unification of Private Law. And that in French, Institut pour l'Université de Droit, Privé, c'est Unidroit. So in 2001, I was in an arbitration in Switzerland. Huge stuff about orbital slots, relationship to several countries. I kind of also fell into that case as second counsel in the beginning. The case was fired out of Asia, and somewhere on a plane ride from the Caribbean back to Europe, I convinced the later client that it would be good to have not only a criminal lawyer from the Philippines, but maybe also an arbitration expert to join that arbitration. We had a great arbitration. I told him how many millions he would be likely to get. We got that in the end. But we argued under English law, because his company was from Anguilla, and the contract said something to English law, and I think we could have won it. The other side, though, the other side decided to argue in favor of Swiss law, arguing it would be also neutral, which of course is probably nonsense, because having been neutral in World War II has nothing to do with whether the law itself is neutral. And so we had those two argumentation lines and the pathological, so sick, choice of law clause. And it was the arbitrator, the arbitration tribunal, who came forward and said, why under these circumstances don't you consider to agree on the UNIDROIT principles with something really neutral? And that is something which happened to me over my lifetime more than once. And I've heard that anecdote also from a number of colleagues.

Andrew: You mean tribunals and tribunals suggesting the UNIDROIT principles over clashes of applicable law.

Eckart: Absolutely.

Andrew: This has happened to you on more than one occasion then.

Eckart: Yeah. And to join on neutral ground, in one instance, it was in an arbitration before the Chinese European Arbitration Center. You know, that's something I set up between 2004 and 2008, along with many colleagues in the Hamburg Bar. Today it's called the Asian European Arbitration Center here in Hamburg, focusing on arbitration with Asia. There in Article 35 we even explicitly foresee the option to either choose the state law or the UNIDROIT principles, of course, the CSG. And people decided, yeah, and under those circumstances, we decided to actually agree on the UNIDROIT principles. In the third arbitration I was even the other party, I was counsel and the defendant proposed the UNIDROIT principles instead of the chosen Chinese law. And we said, okay, okay, we agree it's not so much at stake, not so huge figures. So basically, everybody wanted to resolve this efficiently. And from an ex-post perspective today, I know today, which I didn't know then, that about 47.6% or so, according to some statistics of Chinese contract law, is based on the UNIDROIT principles. So basically, in a nutshell, the UNIDROIT principles are general principles of law and really neutral, and this is why we found out we could agree. We had three days in Switzerland. They gave us three days. I had, of course, an English solicitor on the team, who is today a well-known barrister in London, and we analyzed from the civil and common law perspective, and really, in the end, it's not the law that matters. In the end, in that case, it was a case of damages. It's more about quantum, how you convince the arbitrator. It's the facts that count. No llaw gives you any amount. In the English approach, you have this Harley versus Baxendale approach. Is it too remote? That's a test. In French, the test is, is it foreseeable? And from a German perspective, is it adequate? Yeah, the link between the causation and the harm. So whatever it is, you need to convince the arbitrators. So we decided to accept that offer from the Arbitral Tribunal.

Andrew: Excellent. Well, I mean, obviously, this was your first experience or exposure to the principles. And this was some 20, 25 years ago. Tell us a little bit more about what you've been doing. I mean, you've remained engaged with these principles, literally, ever since. And you're known in this space for that and written commentary on it and a very readable book that's in its second edition now. What keeps you interested in the principles? I mean, how much time do you spend in the principles in your day-to-day these days, as opposed to working on either German law or other applicable laws? I mean, how much time do you spend and how much in the arbitration, how much in transactions? How is it in your daily practice?

Eckart: It has always been there. Since 2004, we won this arbitration and the Asian client was so happy that we reinvested all the money which he earned from a foreign state who was on the other side. And we settled in the end and got part in cash and part in satellite rights. So I made a lot of transponder lease contracts under the UNIDROIT principles in different countries, in East Europe, in France, in Germany, in Asia, in the Caribbean. So I got to start working with them. And it's easy. I mean, they are not longer than a normal complex English contract, I think 26 pages or so, if you read all the 211 principles, they're an easy read, they're deliberately written as general rules, and in English, including famous professors like Professor Farnsworth from America, Roy Goode from England, so a number of famous brains, and brains around the globe, but they're easy to read, easy to understand.

Andrew: They certainly are. I mean, I was lucky to be in Hamburg, as you know, your invitation for the 30th anniversary of the principles this year. And the sort of roundtables that we were doing was illustrating that they're easy to understand, easy to get hold of. And, you know, they are being used. Maybe you could tell us a little bit more about who's using them, the reasons for using them, for those who may be listening who might have heard of the UNIDROIT principles but have never actually had any practical experience of them.

Eckart: Before I do so, may I tell you this episode from Rome. When I wrote this commentary, which you meant, an article-by-article commentary on the UNIDROIT principles, when it was written, the manuscript, I gave it to a friend from Harvard to read, a businessman. He said, I want you to once read it. Is it really understandable to help out whether it's fine? And he came back. He read on the long-distance flight to Hong Kong and back and said, you know, he was amazed by the level of detail of those principles and said, in the future, I'm going to influence everybody whom I can to use them if we need something cross-border, international, neutral. And so that was the episode, and I forgot about it. He married to an Ukrainian, and one of my sons just married also an Ukrainian woman. Before I had to give a speech in Rome, I called him. We spoke first about Ukraine, of course, and then I asked him, by the way, did you ever put this to practice? And he came out with this amazing story that he influenced actually a deal. And it was the biggest transaction, $69 billion transaction in 2023, where a company, New York Stock Exchange, mainly held by Michael Dell from Dell Computers, was sold over to Chinese under the UNIDROIT principles, both the M&A deal under the UNIDROIT principles and the IP contract. So I give you that big contract up front, which puts in a relationship all the daily practice which I have. In the last five years since my commentary came out, I have spent most of my time as kind of external counsel to a Fortune 500 company acting around the globe. And ever since I'm doing that, I'm using them now daily. They're very good for intercompany stuff. They're good for sales stuff. I work a lot in the automotive industry. They have been accepted by opposing counsel who never heard of them, like from Canada, or of opposing counsel who had heard of them but never had looked into them, from Poland, all over. Any industries, all kinds of contracts, over 30 kinds of contracts come to mind. We even used them once to set up a zoo in China. I used them to humanitarian help. I put up a charity through this family link, which helps humanitarian help over to Ukraine. And why should the Ukrainian government accept German law? Why should I accept Ukrainian law, which I can't read? So it may be the best world in the law, but it's neutral. And we agreed on that. So I do these deals also under the UNIDROIT principles. So from small spot deals... Like a donation agreement, to a cooperation agreement to jointly submit to a European public tender, or the complex cooperation deals in automotive. If you set up a new model electronic car to come out in two, three, four years, to be produced for seven years, with spare parts another 15 years, we're talking about 20 years. How to look into the crystal ball, Or I think it's good to work with general principles of contract law and not to outsmart one outsmarting the other.

Andrew: Well, that's right. I mean, certainly it makes perfect sense. And when we were gathering in Hamburg, I mean, the in-house counsel from the companies and organizations that were presenting were explaining that where they're having to deal with multiple suppliers all around the globe, of course, it's simpler to have one set of laws applying to all those contracts. So from the in-house counsel perspective, it simplifies contracting to an enormous degree. So I suppose, how has it been received by the common law world? Because the civil law world and the common law world are sometimes said to sort of stare at each other across a great divide in these sorts of matters. But what's your experience been with common lawyers in this area?

Eckart: I mean, for one, this old episode of 2001 was experienced jointly with a London-based solicitor. Second, one of my biggest instruction arbitration was the Sulu case. It's a case against the state of Malaysia. Old contract 1868, where you could apply anything, was very difficult to detect what type of law. And under the circumstances, the upper tribunal was inclined to apply general principles of law. And the question came up whether one could use the UNIDROIT principles as general principles of law, even in that context. and came out with a $15 billion award, but basically the instructing side was a common law barrister an English-based American barrister Paul Cohen who instructed me of course I took it the English way and said it's my obligation to the court I so I acted in a truly neutral way but in in the same way as I acted in the in the early 2000 because they are really global i mean it's really remarkable if you if you consider that we have hundreds of national court decisions in about 35, 40 countries on all continents where the local court have looked into the UNIDROIT principles and have used the UNIDROIT principles to interpret or even supplement the local law. You have that often in local laws which are not so specific on a certain point. Like Central America, Guatemala, those kind of countries, or East Europe, those kind of countries, but also extremely developed countries with a long-standing routine like Spain. In Spain, you have over 100 court decisions where the local court has used the UNIDROIT principles to supplement national law. And that's, I mean, we're talking about arbitration insights. That way it can help the arbitrators, the tribunals. If we have to cope with some strange law, some law which in that composition of arbitrators, at least some of the co-arbitrators, are not reading every day for breakfast, it helps to read that law. And if you have an interpretation which can be supported because the UNIDROIT principles would come to the same solution, then it really can be a convincing argument. I think if you write a good award, you want to convince both sides that this is the road to go and the road to accept.

Andrew: You're talking about helping tribunals. Let's just dwell on that a second because the audiences who tune into our podcasts are interested in arbitration. Why do the principles and arbitration exist? Why do they make good bedfellows? Why should someone thinking of the principles then think arbitration or vice versa? What are the advantages of combining arbitration and the UNIDROIT principles?

Eckart: You have pre-arbitration and post-starting of arbitration. I think that's the two episodes. Let's first concentrate on the first episode. That's the contracting stuff. And that's what we call simplified global contracting. Actually, I came up with that idea, and I gathered all kinds of people around the globe, and in the end, it was the in-house counsel from America who came up with this language, simplified global contracting. And for me, that's really combining the two pillars on which any contract is standing. On the one hand, the choice of the arbitration forum, and the other one, the choice of the rules of law. And the arbitration clause, in my mind, is the most important clause of the contract because it determines which brains decide in the end if ever there is a dispute. And arbitration regimes also usually give you the freedom to choose rules of law, as we have this in Article 28 of the Uncitral Model Law, as opposed to state law. So we have the opening to the soft law within the arbitration of private international law.

Andrew: That's right. I mean, with the arbitral framework, the pillar, one of the pillars, essentially what you're doing is you're converting the soft law of the principles into hard law, because in an arbitral forum, one can do this. In the leading arbitral institutions, you're allowed to select principles that are not a state law, whereas in a state court, that's not possible the state courts in principle have to apply their own laws

Eckart: I've never looked at it that way but basically that's that's exactly what's happening through the hard law basis that you may choose rules of law you really turn the soft law into hard law correct and if you combine thus an arbitration with the choice with choice of the UNIDROIT principles it's a it's a functioning easygoing system so this is why I think it's a good friend a good bed pillar. The second stage is after the arbitration, once the arbitration has started. So we already had this one set of examples where you agree later on on the arbitration, even if you look at the model clauses, which you find referred to in a footnote of the preamble of the UNIDROIT principles, they always provide clauses both for pre- arbitration, and post-arbitration, how to agree on them. So that's the second scenario. Then you have those strange cases. It reminds me of a case which I had as an arbitrator in Stockholm. Parties had chosen something like international commercial law. So quite often you find those funny choices of the parties. And it shows the intention to stay away from too tough state law. In the end, parliaments make local law with regard to the local needs and the local voters and consumers. So that's distinct from the good faith company-to-company, business-to-business law. So in that situation, the UNIDROIT principles, again, are a very helpful tool to kind of give some flesh to what has been chosen with international commercial law. So that's the second way as an arbitrator. The third way is what we already hinted at, that you have some state law that applies, and you look into the state clause and you tweak it a little bit. For example, let's say, as an example, in a damage scenario, if the other party who was basically damaged contributed to that damage somehow, or it did not take any action to mitigate the damage where it could easily have done so, that's principles which, from a continental perspective, our perspective, that would be a matter of good faith to do that. And from a common law perspective, it would also be reasonable and practical to expect that somebody acts that way. So sometimes, you know, between common and civil law, we discuss about a lot of this notion of good faith, but we are too much discussing about words. In the end, when we go deep, we very come to similar solutions. Here, the UNIDROIT principles really have developed language deliberately in neutral language, so it's not so much like common or civil law. It's really an autonomous legal set of rules. Then you can use that and 747, 748 of the principles are great on the duty to mitigate damage or the need to consider if the other party contributed to the damage.

Andrew: Yes, I mean, in French law, you have fault of the victim and in English law, mitigation, the duty to mitigate. But the outcome that's being sought is not so different, perhaps. And that's what the principles of sort of gather this together and put it in a neutral language so that people... I mean, I think one of the questions we had in the conference, 30-year conference, was about how some of the words used might trigger particular reactions in common lawyers that might not be triggered in a civil lawyer. So it is, the words are obviously important.

Eckart: Let me take one critical point. I know a lot of common law lawyers who totally support them. And sometimes I meet on common law lawyers who really have never looked into the UNIDROIT principles. They just work with pre-made judgments. And the one point I hear sometimes is that there is hardship in there. So basically, they do provide in Section 6.2 the possibility under certain extreme scenarios, which rarely happen because pacta sunt servanda is a basic principle. And there are very rare exceptions. That's been discussed since Cicero, since Roman times, since 2,000 years. We have this friction between pacta sunt servanda, a bindingness of contracts on the one hand, and when you can tweak out of it under very rare extreme exceptions. And in those situations, you should give notice, you should negotiate, and do that in good faith. And in the very extreme, the UNIDROIT principles do permit that you can go to the arbitrator. And we've seen that in this extreme, yeah, not climate change, in all kinds of extreme gas-related contracts, etc. But what I've done during COVID, and I've written tons of contracts under COVID. I mean, how do you do in the middle of COVID, 20-year contract, where of course the pandemic can come back. And of course it would not be unforeseeable because in an abstract way, we can all foresee it could come back. So in those situations, I very often put that just on the screen. And then we discussed, how do you want it? I mean, it's all about party autonomy. The UNIDROIT principles always come along with the section Article 1.5 that you can change within reason what you want to do. And then we discuss it. Do we want to change in the facts on when it's triggered? Because, for example, we want to trigger it even in the pandemic, even if it's not unforeseeable, so we can tweak there, or we can tweak on the other end. And I've seen everything. Sometimes we've agreed that, okay, it's okay, the arbitrator may decide. Sometimes we decided, no, we don't want this. Let's just negotiate, and we don't come to terms. Tough luck. So, but that's a decision to then take, and I think it's good that's in there, because it inspires people to really concentrate and negotiate these points.

Andrew: Well, there's no doubt that it focuses mind, and I suppose the other point to be made, for those who perhaps aren't familiar with the principles is that you know party autonomy is at the heart of it in the principles and there's very little in the principles that that trumps party autonomy

Eckart: Yeah there's very very little and if you if you look at the very big picture we have the roman law of year 532 roman emperor Justinian compiled all of that then it developed over the centuries, you have Battle of Hastings, Magna Carta 1215. Common law develops through all the judgments, which we know more or less, which are a little bit opaque from a civil law perspective. And then came the Americans after World War II, and they took all of that common law, and they added salt and pepper. The principle of good faith and fair dealing was added to common law in the Uniform Commercial Code, and UNIDROIT principle is just internationalizing that concept. Right.

Andrew: Well, that's probably a wonderful way to finish on the principles. Just before we finish our podcast, though, tell us a little bit about what you do when you're not thinking about the principles of, you know, UNIDROIT principles.

Eckart: First, I have the luck that I met the right person, my wife, in the right moment in 35 years. So I have a very nice family life four children, a lot of happiness there. Then we have a great sailing boat. I met my wife already in Norway when sailing. So on board, she's a skipper and we have a lot of fun and we're about to sail again to Sweden this year. And then I started playing golf also during COVID. So lots of sports, lots of fun, a lot of music.

Andrew: Well, it sounds like it's, well, certainly when I was in Hamburg, I had a fantastic time and it's a lovely city to live in. So it's been fantastic speaking with you and hearing about the principles. And for those who haven't heard about them before, I hope you found that insightful. I certainly have. I keep learning things every time I talk to you, Eckart. And thank you very much again for your time, giving over to this. Thank you very much. 

Eckart: Thank you so much.

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 [email protected]. 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.

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.

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 [email protected]. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the costs 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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