Arbitral Insights

In this edition of ‘Spotlight on…’, Gautam Bhattacharyya is joined by Sudhir Mishra, founder and managing partner of Trust Legal, New Delhi, and one of India’s top environmental lawyers. Together, they dive into Sudhir’s professional journey and the figures he regards as his mentors. The conversation then turns to the changing terrains of environmental arbitration, the contrasts between this and commercial arbitration, and Sudhir’s hopes for the role of dispute resolution in environmental matters.

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Transcript: 

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes. We share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers and with that, let's get started.

Gautam: Hello, everyone and welcome back to our Arbitral Insights podcast series. And I'm delighted today to have as our guest, Sudhir Mishra, the managing partner of Trust Legal in New Delhi. Hello, Sudhir.

Sudhir: Good afternoon Gautam. Very grateful for this opportunity and I really look forward to discussing with you.

Gautam: Well, it's wonderful to have you and I'm delighted that you accepted our invitation to be on this podcast. I've been wanting to do a podcast with you for a long time and for many reasons. But there's one major reason and that is that you amongst other things, have a great reputation and specialism in environmental law and you are very well regarded and rightly so well regarded. One of the foremost experts on Indian environmental law and you have a great affinity for this area. And I, and in the course of this discussion today, I would like to uh engage with you in a discussion around how arbitration and environmental law meet and what the future is for the resolution of environmental law disputes by arbitration. And we'll talk about that and about a number of other things. But before I do all of that about environmental law, just a quick few words about you, for our listeners. For those of our listeners who don't know you or haven't come across you before. Sudhir, apart from being a wonderful person, and I must say that is his greatest attribute in my view. He's a wonderful human being. He's also a wonderful lawyer and his firm Trust Legal uh has a number of very, very good specialisms uh including dispute resolution of many kinds, but also environmental law. And one thing that we're not going to talk about in this podcast with regret is that also it's a very well regarded firm in the area of media and entertainment law. But uh but we are going to be focusing on some other areas today with Sudhir because in fact, I could do a whole series of podcasts with Sudhir. We, we could do the Sudhir Mishra podcast series. Such is the range of issues which he could talk about, but Sudhir set up Trust Legal many years ago and it's now rightly a very well respected firm in India and Sudhir, as I mentioned, is an expert amongst other things in environmental law. Uh So it really is wonderful to have you with us on this podcast. Sudhir. Let me, first of all, ask you a little bit about your background if you could tell our listeners because it's always interesting to, to know how things began because things always begin from somewhere. And I know a lot about you myself, but I want the listeners to know a little bit about your backstory. So a little bit about your background and how you found the law or indeed, how the law found you. So I'll hand over to you Sudhir.

Sudhir: So Gautam, thanks again. And while you are the toast of this entire country in India, because of what you have achieved in last many decades, and more specifically in last 3 to 4 months with regard to the large public sector Indian banks. And it's in a rare honor for me to come on this podcast. My journey is very different, very different journey than a usual lawyer. Law was not my first choice of career. I come from eastern UP part of the country which is very poor. My entire education happened in villages and most of the time under the trees and if the rains will come, we'll go back home. I have come from that background and I was preparing for civil services because my father was very keen. In India thanks to Great Britain, we have a Indian administrative service, which was the steel frame even during the East India company and the British Raj. And it continues to be a very important service in India which binds the country and administration is run through the civil services. So I was preparing for it and I wrote a very important interview of it in 1998 when I was supposed to clear the civil services, that was my fourth attempt and the last attempt as provided under the scheme of this competition. And I didn't clear it. And the best part is I didn't clear it more than 1 million people appear for this exam. I had come in last 1000 people for the interview and I didn't clear it and the reason why I didn't clear it was that my marks were very bad in the law paper. And I came as a reluctant lawyer, a graduate from Delhi University Law as a legal professional. But what I found that there were very few law firms and there were virtually no opportunity to join any one of them because my marks were not great and my class 10th and 12th and graduation was not very inspiring despite the fact that I was into it for civil services. So I had a deep interest in the environment right from my law school days. And one reason was we had a very robust Environmental Law Society in Campus Law Center in Delhi University. And I was somehow associated with that. And I was the Secretary of the Environmental Law Society. I used to invite people like Maneka Gandhi to come and speak in the law faculty. And that became my first calling. So I realized that if I'm not able to join any established chamber or a law firm, why not I specialize in environmental law? And the initial practice was advising various NGOs how to oppose the bail applications of a poacher or a wildlife criminal or a trader, which was a very difficult thing because you are assisting the public prosecutor and you are basically creating problems for the defense. And that was something which nobody wanted to do because it was very risky, time consuming and you had to go and be in the trial court. The long and short is that from 1999 right up to 2008 and 9, I was primarily doing environment, forest and wildlife. And the practice was actually growing in front of my eyes while the Supreme Court of the country at that time had a forest bench and that forest bench used to assemble every Friday and lawyer of the nature of Harish Salve was the amicus in that forest bench. He was devoting an entire Friday afternoon with the King's Council in the United Kingdom now. On forest matters where only issues affecting forest, wildlife, biodiversity, wetlands will be discussed and more than 40 to 45 public interest litigations I was doing which are class action suits. They are called in United Kingdom, other jurisdictions. And I used to travel across the country for different wildlife matters, whether it's opposing a bail application of a poacher or a trader appearing in a class action suit on the issue of wildlife or a critical biodiversity area or a critical wetland which has to be protected. And these issues used to pay you very nominal fee. But I had the opportunity to see a practice being created. A turning point came in 2005 in fact. When I was taken in International Visitors Leadership program of the U.S. government, which is under the Full Bright Act. And I was sent to United States and I traveled to different cities across the United States and we were put in important forest areas. And one of the change of heart was when I was sent to a place called Okefenokee Wildlife Refuge in Florida. Now, that's a very interesting place and I can never forget it's more than 18 years now. So that was the place where Dupont had actually done lot of environmental issues were there and they were part of the restoration plan. So one of the things which they said, they said we not only restore, we'll make it a state of art, nature conservation place. And they did change that entire area. And they made it such a place of conservation that on private side, perhaps the best private forest, best laboratories best in house scientists were found in Okefenokee Wildlife Refuge. And that was the opening of the eyes. I realize that in India, primarily we have two pole positions. Either you allow a project which is for infrastructure purposes or you go and file a class action suit. There is no meeting of the mind and that was the time Gautam, you know that there were no talks of climate resilience ESG SDG goals. It was not even - there was not the word sustainability. So I thought that you need a more rounded legal practice to address the issues of the climate. And then Trust Legal was born and we became quite mainstream.

Gautam: Well, and you certainly and that's a wonderful story. And uh you know how you got to where you got to and how your interest developed in environmental law. And it's amazing, isn't it some of these things that happen in our careers? They happen often by accident and then we and then we jump on them. I should have mentioned in my, in my, in my introduction also that your expertise has now meant that it's not just you being recognized in India, you are also a Door Tenant at No5 Barristers Chambers in London, which again shows your international expertise. And but let, but let me ask you this because we all need mentors and inspirations in our career and in our lives, quite frankly, if you look at your progression from that boy in UP who was learning from under the trees to now the international jet setting lawyer, which you are, can you, can you tell us a little bit about some of those mentors, some of those inspirations in your career so far?

Sudhir: Yeah. Gautam, my father had a huge impact and I have heard from you also. And when we, whenever we met and we have talked, we talked about parents. And I never actually told you this part that my father believed in my capabilities more than me. He is no longer in this world. And he always used to be super confident about law as a second career. Of course, he wanted me to become a civil servant and I was totally against doing law. I wanted to major in history and teach in a college. But he was so adamant sometimes whether whichever country we live in, we don't understand that the parents are the actual living gods, whatever religion you follow, whichever place you stay and they know something which you realize after 30-40 years. So he compelled me to take law as a course after my graduation where I taught my college in history. And I was very convinced I'll be a great historian. I had no major interest in anything whether it's civil services, but I had a great interest in history and Gautam, you'll be very happy to know even now my writings in Hindustan Times or my podcast in history is more popular than my Sudhir Mishra show for Law.

Gautam: That's, that's destiny.

Sudhir: I have no time for that and I always find time to do more in more work on history. So when I didn't clear the IS interview in India, there is a movie which has come last month, which is called 12th Fail. It's about a aspirant who after a lot of difficulties finally clears the civil service exams. It's a monumental loss if you face a competition, which 1 million people are writing and you are in last 1000 people and you don't clear it. It's like India losing the World Cup in the finals with Australia. So my father sent a telegram to my local guardian in Delhi. I was not talking to him. There were no mobile phones. Thankfully at that time, he said my son will become a successful lawyer and I guarantee him tell him to call me and talk to me. And then he convinced me. Once we talk that you take it in writing, you'll be very successful. I had no idea what he was talking. So he was my first mentor and rest is I will actually say that my, one of the few mentors was who actually introduced and got me in the baby steps in the legal profession was Mr. Parag Tripathi. And how I started with him I actually got few of the litigations with him when he became a senior advocate in Delhi 99. And he needed a competent junior attorney who can take over the role of advocate on record and Gautam, they were arbitration matters and they became very high stake arbitration matters. They had no connection with environmental law while I was regularly going to the trial courts trying to find some work to have daily standard of living. And I used to do work for the NGOS. I was also working on some very high pitch energy arbitrations which were where I was representing Power Grid Corporation of India Limited, which was newly bifurcated from National Thermal Power Company. And I was assisting Parag Tripathi And then I learned the entire aspects of arbitration with him and he was a great mentor. He gave me the confidence I was making mistakes, but he was very, very large hearted. My other mentor I would say was my friend and those are the people I will never forget Sridhar Potaraju, one of the lawyers I respect. We both were learning together. We were classmates and roommates. We were learning from our mistakes and we were having the courage to reject the easy options. Like he was working in a larger law firm at that time. And one fine morning, he decided to get independent and he's in line to become a senior advocate. Now you're doing very well. So my mentors were very unusual people. I never had the luxury of a top class senior working under him or even joining a large law firm even till now, of course, now the issue is very different that for last 2-3 years, virtually every major law firm uh wants me in some way, either through a module or through in any other capacity and it has all changed.

Gautam: Well, yeah, I mean, and, and that doesn't surprise me at all. Sudhir. And, and you know, you know, that talk about your inspirations is inspiring because we all need that and we need people to believe in us. And I'm so glad that people believed in you and, and you know, look like so many things that our parents say they come true and your dad did say that uh my son will be a successful lawyer and you certainly have become one. So um you know, so that's a very, very powerful story. Thank you for sharing that. Now let me turn to environmental law as a subject matter. I mean, as you rightly said a bit earlier on in this podcast, when you got into the area ESG was not on people's radar. Climate change wasn't really on the radar. The amount of coverage we get in the media about climate, environmental issues was not there. Now we get a lot of it. And rightly so because it's a very, very important issue and the environment is something that rightly has a lot more focus on it. When we think about the resolution of disputes involving environmental law. One of the developing trends is obviously how can these disputes of whatever kind be resolved in the best way? And inevitably, a lot of discussion is about the role of international arbitration and arbitration as a mechanism for resolving environmental related disputes. I wonder if you could share with us your thoughts on on is it a realistic objective that arbitration can be an effective tool for resolving and environmental disputes? And, and if so, why do we have enough people who are knowledgeable enough about the issues to be arbitrators in the field? I wonder if you could just share some of your thoughts on that, please. Thank you.

Sudhir: So Gautam before that allow me to tell you the journey of environmental lawyering in general for India, I would say India journey is my journey because most of the work on environmental law across the world, even if people feel that certain European jurisdictions were quicker and faster. In 1990s, the entire world actually started working towards 1994-95 and it continues. India became very conscious of its environmental damages after the 1985 Bhopal gas tragedy. And we had a lot of legislations which happened but our Supreme Court when they created a dedicated forest bench in 2002 and just see with the they are starting a forest bench and my starting environmental career, it happened parallel. So I got benefited out of the kind of opportunities which were happening in this country. Virtually more than 10 high courts, we're dealing with environment, forest, wetlands, climate change, wildlife issues, elephant corridors, tiger population matters. And there was a climate which was happening in India. There was a climate of those litigation which was happening in the U.S. There are a lot of cross border cooperation happening. Judges were interacting very freely and judicial academies were collaborating with each other. And I was part of that exchange program and I was seeing it actually from my own eyes, how U.S. Fish and Wildlife Service is cooperating with Indian forest environment. And it had a huge impact. India had a forest score of 9%. And today we have a forest score of 17% because much of it has happened. Despite our population and the geographical limitation, India has managed to save its tiger, its elephants, its wild population hunting is completely banned in India. And much of this has happened because of judicial activism on the environmental side. What was really bothering me since 2008-9 when I became more central about the environmental law and I became, you can say from more left to most central, I won't say more right because I'm still more central. I'll always think about the air pollution first before about a Catholic convector. So I would say that 2010 onwards, I was wondering what kind of planet you will save if you're not engaged with the companies, if you not talk to the corporate houses or you will not understand their contractual obligations, how will you resolve an environmental damage issue? And even if you're going as a nongovernmental organization against a company or against the government in an environmental court, like National Green Tribunal in India or maybe in some court against the automobile company in France or Germany. How will you take care of the community issues? And how will you expect the company to understand all those community issues? So I'll say the robustness in this entire understanding started happening post 2012-13 when ESG and the SDG goals came into being for the whole world. Now, if you see that's a movement which is going on for last 10 years now and it is going to do wonders. No, if we understand that first, then we'll understand the contractual part of it which are normally going to arbitrations. So what is happening now? 1000 plus companies which are now being directed by SBI, which is the securities exchange board of India and equivalent across the world. Every country, their top companies have to be ESG compliant. They need to have responsible green boards, their term sheets and their lendings have to have green commitments and green pledges. Now this is the background, new age arbitrations are happening. Now, what is the arbitration's main sector today? Construction industry, infrastructure, energy, oil and gas. These are the four major sectors for large commercial arbitration. Now, if you see all of them have some issue of the environment, water, air or some kind of forest or some kind of interface with the ecological issue. So you need the pollution expert, you need the social scientist, you need the the flora expert, you need the forest survey of India maps. You need the entire species understanding how they roam around, which are the go areas, which are the no go area. You are doing a contract with the government agency that I will go and mine in this particular area and your forest clearances have not come on time and tomorrow you're suing another company in an arbitration. Now you had no understanding of the entire environmental dimensions. So you need to now understand those environmental dimensions. That's the first part. The second part is which I'm learning right now. I was an expert witness in one of the initial environmental arbitrations, which was the oil and gas sector arbitration. And I realized that the insurance company was being sued for environmental damages. And I understood the importance of clear understanding of the environmental periphery. Now in London, we are having this Chancery Lane project Gautam. You would be aware about it where commercial contracts are having a specific environmental words and the environmental commitments as per the CUP commitments and those will be decided in your claim and counter claims and the expert evidence will be laid on them.

Gautam: Yeah. Ab absolutely. There's been a lot of development as, as you rightly say, and this is a really, it's been an interesting trend, you know, but do you think that there are enough people who are specialist in the area who could act as arbitrators in this field? Because one of the things is if you compare commercial arbitrations of one kind or the other, be it contractual disputes, JV, disputes, manufacturing disputes, pharmaceutical disputes, whatever you want to say, most arbitrators doing that sort of work would likely be able to say, yeah, I can do that. But environmental law and climate change, you know, and you know, the whole area like that is quite specialist. Do you think there are realistically there are enough people around who could act as arbitrators to ensure that arbitration has the best chance of success as the dispute resolution mechanism for these sorts of issues?

Sudhir: No, Gautam, I feel that we are in a very early stages and I compliment you for even suggesting me to blend my environmental expertise with the entire arbitration scene and I'll talk more about it. But you know, we are presently dealing with a very large oil and gas issue in India. During the pandemic. there was a gas accident where gas came out and people went right up to Supreme Court under Article 32 of the Constitution, Supreme Court was very much inclined to award a very large compensation. Long and short is for three years we kept on fighting and the way we fought was also something it's for every litigator. Uh He should understand what we try doing. We try to basically create a parallel narrative which is what people can't do unless you have a huge environmental expertise. So the court was going with the experts like they had appointed a committee. So the experts were relying on a particular set of maps. I started first demolishing those things only. I said these maps are not by the accredited agency which can prepare the forest survey of India maps. They are from the Google and other places which are not actually that authentic. Then when you talk about restoration of that area, I said already so much has been restored. Now, if I say I'm for the for the company which is supposed to have committed a wrong. So I got a Nobel Prize awarded consulting organization like the Energy Research Institute and they said that look your soil is better, your agriculture is back, your livestock is better, the human health is better and all those reports, we are much better than what the Supreme Court Committee was actually able to put it together and you imagine the consequences. So that's one part. Now, that particular company has initiated the arbitration against a contractor who was in charge of that entire. Now, if the arbitration has to be now fought, it's a large arbitration, what will, what will be the claim issues? What are, what all will be the heads of clean there will be again, the same restoration which will be talked about the ecological issue, the damage to the wildlife damage to the soil. So who will give those expert advice if you know in India, I don't know about UK, in India. If you're doing an infrastructure, large claim petition for a large public sector undertaking, at least some of my partners were telling me that the client comes with an expert. He says I have got an ex-head of their arbitration division who is now in his private capacity will prepare the claim petition. That is what you were saying that they have that expertise,

Gautam: Absolutely.

Sudhir: Who is that? Who is going to do that part if you have an ecological coloring of the entire commercial dispute. So there is a huge lack of lack of expertise. I think we need a complete different kind of mentoring where we need new crop of arbitrators, who will be the green arbitrators who will have a background in biodiversity, social sciences. Like one very important aspect, Gautam, which is often missed even in mainstream commercial arbitrations because I was representing POSCO in the entire National Green Terminal issue when they're being challenged, that you can't set up the project or the large work which happened on Vedanta in India when they had certain problems which they faced in Orissa. No. What was the biggest factor which became the detrimental factor, the social factor. So when you are talking about environmental expert, I think arbitration proceedings which have environmental dimensions also need social scientists who know which are the go areas if a particular pipeline is going, whether it can go through a particular village or a particular secret place, because those are the people who go and convince those communities that you have to allow this thing. So we need very different kind of skill sets for New Age green arbitrations.

Gautam: Yeah, I, I agree with you in short. I think it's uh it's too important and too specialist an area to not have it. So, but, but look, thank you for sharing those great thoughts and uh it's particularly great to hear that from someone like you who really knows this area who lives and breathes this area. And I think it's the first time for sure, in this podcast series, we've ever had anyone with this level of expertise in this area. And we wanted to highlight this whole area of environmental and climate and the interlink with arbitration. So thank you so much for your wonderful thoughts there. Now, as we draw to the to the close of this podcast, Sudhir, we always love to have some more lighthearted conversation because it because, and actually this segment is very popular with our listeners. They like to get a feel for our podcast guests and they've already got the feel of your legal expertise. But let me ask you some more lighthearted things. You're a very busy man. You've got, um, you know, your children to keep you busy. What are your favorite hobbies when you have time to indulge in your hobbies?

Sudhir: It keeps on changing. My favorite hobby is actually to think about food. I'm a foodie. I get up in the morning. You want me to be candid. And I still remember - I do my show and I had Priti Adanii who is, who called just last week. We were talking about you and she said he is my God brother and she said about you. So she said, can I ask few questions to you? And she asked almost on the same lines. So I am not prepared for real questions. So I'm a foodie. I think about food if I travel to London and if I'm in the flight, if I come out of the Heathrow, my first thought is to go to a particular place where I get the best Turkish food. So that plays in my mind. Movies have a huge, huge place in my mind. I, I love movies and there was a time when I used to watch all the movies on first day, first show. And so when I meet people who say I'm homesick and I have left my home and I have come to Delhi or I have come to any other place when I came to Delhi, leaving my rural background, I, I never had enough money to eat well or something, but I used to save money and feel very, very happy that I can watch a movie and without being accountable to my father who was quite against watching movies all the time. So I remain a movie buff and I drag people also for all kind of movies. For me, the definition of a good movie is that either it will be a good movie or very good movie.

Gautam: I love that. I love that classification. It's a superb classification. You know, it reminds me of that uh superb lyric. I'm going to sort of slightly adjust the lyric from James Brown who said, “I don't mind what you play as long as it's funky.” Um So, so, so, so that's, that's very, that's very, very good. And then let me ask you, I, well, since I talked about music, let my final question to you on this podcast. Be about music. OK. Do you have any favorite music or any particular groups or singers that you really enjoy listening to?

Sudhir: I listen to Nusrat Fateh Khan every day and Gautam, I listened to him because he's less a musician. He's more a Sufi saint and he was born in Pakistan and he is part of a Ganga Jamuni Tehzeeb and he's part of the uh I would say inclusive culture, which this entire subcontinent should have and which it had like in his music in his Qawwali's. you will also have the mention of Krishna. You will also will have mention of many other things which are very Indian. And I find a great resonance with the entire aspect and I find it a therapy like one of his very famous music and I encourage you to listen to it. Anybody can understand Tum Ek Gorakhdhanda Ho like He questions God for 21 minutes in this Qawwali. And he said that you say you are everywhere still, you can't be seen anywhere. So what is this contradiction? And what exactly is your entire game? So in that 21 minutes, he keep on asking God and keep on saying something sarcastic. They say so I'm a huge fan of Nusrat Fateh Ali Khan.

Gautam: Well, and you know, he's a fantastic, well, he's more than a musician. He's actually I think he, he tells stories as you rightly say and, and as you mentioned, a very interesting point, he transcends communities and he really brings diversity. In fact, you know, just what you said has just reminded me, in fact, has reminded me of something. And I'm going to ask you one final quick question actually. But let me first will tell you what you of what you said. Just reminded me as, as a young boy. I remember watching the wonderful film, Amar Akbar Anthony, in one of the classics. And there's a lovely scene in that film where the character being played by Rishi Kapoor who was playing Akbar was singing a devotional song to a Hindu deity, but he was playing a Muslim character. And it's, and it was a very uh it just, it, and that, that song has always been one of my favorite from any Indian film, not just because of its significance, but because of the diversity it showed. Um So that was one and I'm sure you know exactly the song that I'm talking about. So, so now let me ask you one final question because I can't resist because you are an international man. Is there one particular place apart from India that you love to travel to or around?

Sudhir: But you will have to allow me to say one place in India also.

Gautam: of course, please do, please do it. It's, it's your prerogative.

Sudhir: In India, in India. One place where I always love to go and I never liked it when I was growing up is my place of birth, Banaras, Varanasi the sacred city of India. And I managed to go there every two months or three months. If I'm in the country and internationally, it has always been London. For last 22 years I have been going there. There is no other place if I have any wish. If, if I can travel any time of the year and anything which I read about London also excites me and like I was, I was curious to find out that it was in the number grade in LCIA and Singapore International Arbitration Center. How far behind is that? I was talking to a few large law firm partners who had and for me, London is very close to my heart. I love everything about it. The kind of inclusive culture or the vibrancy it has and the depth of democracy it breeds is something which takes my breath away.

Gautam: Well, thank you. And on that lovely note, I want to thank you very much Sudhir for being such a wonderful guest. I've loved the conversation with you. Of course, I've had the great privilege of knowing you for a long time, but doing a podcast with someone is an, is an extremely enjoyable experience and this has been a great one for me. So thank you and I know that our listeners are going to enjoy it too. So once again, thank you Sudhir and I look forward to seeing you in person very soon.

Sudhir: Thank you, Gautam. It's a pleasure.

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Transcript is auto-generated.

Distinguished Malaysian lawyer and full-time international arbitrator Sitpah Selvaratnam is our guest for this episode of ‘Spotlight on …’ Host Gautam Bhattacharyya takes us on a journey through Sitpah’s remarkable career, discussing the focus of her practice and the attributes she believes are necessary for anyone aspiring to become an arbitrator. The conversation then explores diversity, equity, and inclusion within the legal profession – pertinent given Sitpah’s role as co-chair of the Asia Pacific chapter of the Equal Representation in Arbitration pledge. 

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Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started. 

Gautam: Hello and welcome back to our Arbitral Insights podcast series. And I'm delighted that in this edition we have as our guest, Sitpah Selvaratnam. Hello, Sitpah. 

Sitpah: Hi Gautam. Thank you for having me on your podcast. I'm delighted to be here. 

Gautam: Well, I'm delighted that you're on this podcast. I've been wanting to do a podcast with you for a long, long time and it's, it's wonderful that we've got this opportunity and I know that our listeners will thoroughly enjoy your thoughts and discussions on the points that we're going to be talking about. Now, I will first will introduce you because some of our listeners may not be familiar with you, but you are put it this way, a real force of nature and you are an incredibly impressive lawyer and arbitrator. So um I, I could actually spend the whole half hour talking about your antecedents, but I will have to keep this uh summary short about your profile. So, Sitpah is one of the leading lawyers in Malaysia. Um She's been practicing there for over 30 years. She was called to the Malaysian Bar in 1990 having studied over here in the UK. Yeah, and I'm sure we'll come back to that Sitpah over the course of our discussion, and she, she commenced her practice in Malaysia at one of the largest firms in Malaysia and then was a founding partner of the very excellent firm of Tommy Thomas, uh where she recently has just left. So she's just left that firm to set up practice as a full time arbitrator. And we'll be discussing that in the course of this podcast. Sit is a very highly ranked lawyer in a number of areas amongst other things. Apart from her commercial practice, she has a very, very well regarded maritime practice and that has always been one of her big specialisms as well as commercial arbitration and litigation. So it's a real honor to be doing this podcast with you Sitpah and I'm really looking forward to our discussions today. 

Sitpah: Gautam, you are just too kind. It's so lovely to be here chatting with you. So I hope this is of interest to your listeners. 

Gautam: It will undoubtedly be. And I, I want to start with this question, what drew you to law as a career in the first place right now? 

Sitpah: So it was accidental, as much as it was a process of elimination. I come from a rather conservative family out here in Malaysia, of Sri Lankan descent. And so my father was only about to fund my education in the UK if I did a profession. And so the law and being a lawyer seemed least worse. And that's how I ended up in, in Cardiff reading law and then in Cambridge to do my master's and the rest is history. 

Gautam: Well, thank goodness you chose the law because you made good history in the course of everything. So, you know, so, yeah, so you studied in, uh uh in Cardiff and in Cambridge. So tell us your thoughts about your time over here? 

Sitpah: Oh, I, it, it still stands out as probably one of the best times of my life. Um, you know, I, I was, uh totally innocent, knew, not knew, not what to expect from the UK. And it just blew my mind, uh, the thinking, the exchanges, uh the freedom of expression, the variety of people I met. And so it was the most liberating experience I had and made me completely come into my home. And of course, it helped that law came naturally to me. So I was acing it and that of course, makes a whole lot of difference to how you experience the place. And London and UK remain such a favorite spot for me. 

Gautam: Well, we look forward to seeing you back here very soon and I'm sure you've still got lots and lots of friends over here in the UK, as well as your professional friends and you know, many personal friends from your time here. So, you know, one of the things that, that we all benefit from in the course of our career are our mentors and inspirations. And I wonder if you could share with us your thoughts as to who in your professional journey so far have been your most important mentors and inspirations. 

Sitpah: Right, I was fortunate. I certainly will point to Tommy Thomas as my significant mentor, especially in the early days. He was my, one of my reporting partners. Uh And then we, of course, as you mentioned, set out a boutique firm together. And so for the uh early formative years, my practice, it was his work ethic uh that really was great to emulate. He worked hard, he played hard, his drafting precision, his commitment to preparation in court were just outstanding. Um And so those were good habits that I inculcated. But above all of that, I would say what inspired me most about Tommy Thomas was his courage. No client was too big to lose on a point to principle and no um worthy cause was too unpopular to deserve the same amount of attention and commitment. And so these were some of the great things I learned from Tommy. As you know, I'm no more with, with Tommy. After 33 years of being together, I've just become independent. But I would also say moving in my career, my career developed and you know about my maritime passion, I studied uh maritime law in Cardiff under Professor Kent Woloder and David Glass and then in Cambridge under Francis, Professor Francis Rose and Malcolm Clark. And I was determined to, to practice maritime law in Malaysia. And this is way back in 1991 where maritime law was unheard of in Malaysia. So in many ways, I was a pioneer, the first wave of lawyers coming out. And to me as my career program, I had more challenging maritime cases. I and and the English court decisions didn't seem to sit so nicely with me. I would car the the law reports of the region and it was principally justice also James also from Australia and also Selma Reyes from Hong Kong that I admired most, especially James also in his careful fair sound judgment. And it makes so much sense to me, it it sort of prioritized maritime and insolvency for instance, um together and then decided which to precedent. It excited me so much. So I would put them there as my inspiration in a closer home. It would be also justice Belinda And and Justice Judith Prakash in Singapore, who maritime practitioners who were elevated to the bench and contributed so much. These people truly inspired me. 

Gautam: Well that's a wonderful array of people and inspirations. One of the areas Sitpah that you're extremely well known for and we'll come to this in the course of our discussion in the podcast is the world of arbitration and you've now set out as a full time arbitrator and again, we'll cover that. But how did you first get into the world of arbitration? Was it as a consequence of your maritime law practice which we just were speaking about, 

Sitpah: Right, Gautam. So a lot of my life, the best things happen not by design, just by providence. So I got involved in a huge bonds dispute, say 20 or 25 years ago, it had really preeminence tribunal members including Lord Millet and Gavin Griffiths and Justice Boram, and I was second chair, but I had the pleasure of appearing before truly top class international panel and it made me rook the ways in which my dispute resolution career could evolve. And so that was the first days. And around the same time I got roped into the Chartered Institute of Arbitrators Malaysian branch into the committee. Again, that went further my appetite. And next thing you know is doing my diploma in International Commercial Arbitration in Keble College, Oxford, got my first two appointments and uh it just went on from there, I just loved making decisions. And as we all know, the institutions play an enormous role in getting the first couple of appointments and uh to that to their credit the SIAC and the AIC Malaysian Center at that time known as KLRCA uh were were terrific in their support in pushing um younger arbitrators in and for my time. So this would have been 2009, 2010 for a 40 ish year old ethnic minority female to be getting appointments was really ahead of the curve already. So I was very lucky. 

Gautam: Well, one of the things which um you know, is wonderful is that you are, as you said, of an ethnic origin and there aren't enough ethnically diverse arbitrators out there doing major commercial cases. So it's wonderful that you're so prominent in that regard. It's also wonderful that as a woman, you are also extremely prominent and that adds to the importance of your, of what you stand for because you are female, you're ethnically diverse. One of the things that's gradually getting better and better is that there are more and more people becoming arbitrators and gaining prominence as arbitrators who are female and are ethnically diverse. One of the things that I wanted to ask you was to share your thoughts about the whole concept of diversity, equality and inclusion because it's obviously a very important concept in many walks of life. But in the world of International Arbitration, it is getting better and better. But I wonder if you could share your thoughts as to how it can get even better. 

Sitpah: Yes, I would certainly want to share with you some of my thoughts. I think we've, I'm first of all, as a firm supporter of diversity, not just of gender and ethnicity, but all forms of diversity, generational disability, sexual orientation. To me, I start from the perspective that the tribunal should be reflective of society as far as possible of course, and then you get a more wholesome complete review of the dispute from several perspectives. Um So with that in mind, of course, I appreciate ultimately, the the arbitration is the party’s process, party autonomy, but there is some amount of obligation and responsibility on all our parts to make that make the parties aware of the benefits that come from diversity. And in this regard, I think where we have parties from different geographical areas, it is imperative that the tribunal closely reflects that the what you would say, the geographical areas, the demographics of the parties so that the the dispute gets, gets to be heard in its proper context with the flavor that it deserves. So to my mind, diversity has achieved in many respects, especially with gender and more and more conversations are going on in that regard. But to me, it is also an aspect of natural justice. One thing it's good that you have a diverse panel. But it is part of allowing the parties to feel that they have been heard. And parties from different aspects from different, different areas of the world have got different understanding of words, their body language difference, it differs. So only someone exposed to British humor would understand British humor. The converse is true. You couldn't begin to understand the party's language, their body language unless there's been some exposure to that their cultural background and background is important. It forms the lens through which we perceive facts and we perceive behavior and then that goes towards findings of fact of truth. So to me, it is an aspect of natural justice. And when we say that a party must be afforded natural justice. It is not just giving equal time, but that time must be quality time where the dispute has been properly appreciated in the social cultural context. So when I advocate for diversity, I come from the perspective that it is an aspect of natural justice. 

Gautam: I, I totally agree with you. And you know, and you know, those were uh you know, wonderful thoughts to hear because you know, that ability to ensure that the parties feel that they've been properly considered and all aspects of the process have worked as well as they can is very important because arbitration is a service industry and arbitrators are there to serve the parties. And so they need to be very mindful of who the parties are, what the parties expect. And as you say, what sort of reaction the arbitrators are giving to the parties in terms of how well prepared they are, how they interact with the parties, their demeanor, the sorts of questions they ask. So I, you know what, what you said was very, very interesting and really resonates with me. You know, one of the things, as I mentioned a little earlier is that after your glittering career in practice, you've now become a full time arbitrator and you will continue to do wonderfully well, Sitpah because you are an incredible name and you're a real Trailblazer. I wonder if you could share your thoughts as you know, over the years in all the arbitrations you've sat in, you've obviously gained an insight into how the process works. And I wonder if you could just share some of the um sort of lessons the perspectives that you've learned as an arbitrator because I think that would be, I think of real interest to our listeners. 

Sitpah: For sure, Gautam. Um It's been a phenomenal 15 years sitting as an arbitrator and I would say I, I could put it down to two or three main lessons. Uh The main lesson is how essential it is to be clear thinking and decisive and to be able to prioritize uh parties or council submissions and to then distinguish between very closely uh competing positions which should actually uh nudge out the other. And I often find myself, you know, um standing by the window, hands in my pocket or with a cup of coffee just reflecting on this and just filtering through in a very rational manner to see who comes up uh, you know, the better comes up with a slightly better argument on that and that is with, with, with some luxury of time to reflect. But actually more than that when you're in the arbitration room and you're hearing cross examination of expert witness testifying, then that clear decision, the clear thinking also comes in to be able to decide whether that's irrelevant, that's relevant, let's stop it here to be efficient whilst being fair. So clear thinking, very decisive and that's not something everyone has is very important. And the second is something I've alluded to earlier, the importance of making parties feel that they have been heard and understood. And especially if you're going to dismiss the argument, then some part of that must be reflected in the ward so that the confidence in that whole process, the satisfaction that the parties get from the dispute resolution process is upheld and may be linked to that. I would say it is also that the impartiality of me at the arbitrator I feel strongly about must be seen, must be felt. And it comes across when I actually with my body language, when I want to hear why the witness does what the witness did so that I can appreciate that though it may not be what the law affords them, the protection they may have chosen a law that they are not familiar with, but it may have been put in there by the counter party. They have had my year to that and quite often related to that is the fact that parties are not always equally represented. And then it's finding the right balance to remain neutral and yet try as far as possible to rise the imbalance, so to speak. So I would say in short, I have learned how to be firm and yet be approachable. 

Gautam: Yeah, and that's a wonderful balance. Um And I, you know, and I, you know, again, that's just music to my ears because that's, those are the sorts of things I love to see in arbitrators mix of having a personality but being a decisive mind and, and just, you know, and just being inclusive and nice to deal with and being well prepared. Like I said, these are some of the real features because in the years that I've been practicing, I think you and I have been practicing for more or less the same amount of time. I'm sure between us, we've got a lot of interesting. I'm sure we were to speak more on this. We'd have a few war stories to share. Now I want to turn to one other topic before we go to the final topic, which is, I want to ask you this arbitration is obviously now um well established as a really important dispute resolution mechanism. And um it's recognized globally as the most important way of resolving disputes, but it can obviously be made better. It's not the perfect system. So are there any thoughts you've got as to how the arbitration process can be improved so that it becomes a better form of itself? 

Sitpah: Ok Gautam, I think I'm going to go out on a limb here. So um bear with me, I come from Asia. So it might not be the same experience where you sit. But let me tell you what it is, I think needs strengthening and that is the strength, strengthening of the perception of impartiality and neutrality of tribunals. And of course, diversity helps because diversity can sort of disrupt the, the, the the club, so to speak of the same people sitting as arbitrators. But why do I say this? Um Out in Asia, we have a few experiences and the appointment process to us needs to be a little bit more transparent. As it stands disclosure is still very much self regulated. The arbitrator has to make disclosure. I think even in your 1996 consultation paper, it still remains that way. And so we don't get an objective listing of firms repeat appointments, arbitrator or co arbitrators appointments. Uh And so the with the objective then being trying to trying to minimize repeat appointments or unspoken reciprocal arrangements. I feel that something needs to be done. More than that is also out in Asia is what I call the double standard syndrome. That an arbitrator can behave differently depending on his or her environment, depending on the sophistication of the seat or the parties. Do I have an answer for it? Of course not. I don't presume to know how to write this very tricky issue, but it's a real issue, but I can share what my husband and I often speak about quietly. He's also an arbitrator lawyer. And it is this, we so often speak about disgruntled parties about the manner of behavior of an arbitrator that we wonder whether a peer oversight process can be put in place. Not one that will upset the award because that award will go through the setting aside process or enforcement process. It may or may not make the mark for setting aside, but the parties may perhaps be given an opportunity to add the grievance in a peer oversight committee. And then the repercussions obviously would just before the arbitrator personally or you can be avoided to council or however you want to work it. But here we talk about the arbitrator but obviously is open to abuse and it's something perhaps either in my lifetime or after may be worthy of some thought. 

Gautam: I mean, again, uh fascinating, I agree with you completely. I mean, those are incredibly perceptive comments uh which are drawn from your experience. And I think many of our listeners would also agree entirely with them. Uh, so I think you're spot on, on everything there, Sitpah unsurprisingly spot on in your observations. 

Sitpah: Sadly so, right? 

Gautam: Well, you know, you know, life has this habit of raising all of these issues and, uh, you know, we just have to talk about them. So I think that it's really good and, you know, thank you for raising those points with us. You know, I traditionally end these podcasts by delving into some more lighthearted conversation, you know, not law, not arbitration, not anything like that, just about the person. You know, you're an incredibly vivacious energetic dynamic person, you're very busy all the time. Uh I'm sure your diary is completely chock a block for a long time to come. But when you do get some spare time, what do you like to do in your spare time? Right. 

Sitpah: So I've been told that, you know, I can't bear to see five minutes of my time, not used and therefore I would fit something into it. It's of course an exaggeration, but I am a bit of that personality. And so I have packed many, many things in my life, but I would, I suppose say two things stand out as a particular passion, which is I, I love my martial arts. So I still train in the martial arts of Aikido. And um I'm terribly pleased to have got finally after many years of training my black belt. So that's something I do at least twice a week. 

Gautam: Congratulations. Wonderful. 

Sitpah: And the other is I love discussing life and I do workshops with parents with young adults about living skills because thought processes, emotions just living life. So challenging is important to me. And I love seeing other perspectives for my children from other young adults, from anyone really who is willing to discuss life as it is uh with me. And that would be what I would say is my other particular interest. 

Gautam: Incredible. And, and you know, I didn't know that um you had such a passion for martial arts. Uh I think it's, it's really, really wonderful to know actually, I mean, uh you know, when I see you next, I'll talk to you about that a bit more. I'd like to find out more about that because amongst other things, I think some of the most disciplined um sports people on the planet are the people who are, who are mixed martial artists because they've got to master so many skills and they've got to be on top of not just one martial art, but many martial arts and there's a lot to learn, I think from people like that. So, and then in terms of travel, um is there a particular place outside of Malaysia that you particularly enjoy traveling to? I mean, and excluding the UK okay. 

Sitpah: Oh gosh, I was just going to say London’s like home. It makes me a li I feel like a student again hopping in and out of tubes when they're not on strike. Uh Yes, but no. If London is ruled out, then I would say quite a few areas. But um Bali is magical. Milford Sound, New Zealand’s South Island is just heavenly. Angkor Wat is, is mystical. So many beautiful places on this planet. But finally, we go back to India, even though I'm from Sri Lanka. Really my roots rather is from Sri Lanka. Uh We go back to India where the family comes together over the delicious food, the Bollywood, uh the, the, the resplendent clothes and the cricket. So um India is an annual model and I suppose I have to say that here. 

Gautam: Well, yeah, I mean, absolutely. And you know, we're all a product of our heritage and we should be proud of our heritage and all that goes with it. Well, I will look forward to seeing you in India. Uh Yeah, at GAR in Delhi on the ninth of March. And you know, I'm sure we can, we'll have a lot more conversations there in person, but can I just say Sitpah it’s been an absolute delight to do this podcast with you. It's been thoroughly enjoyable. Thank you for being such a wonderful guest, so open and so engaging in all of your thoughts and in and in your enthusiasm for all of the topics we discussed. It's, it's, I mean, I'm sure our listeners will thoroughly enjoy this episode. So, thank you again very much. Um I wish you all continued success in your arbitrator practice and I look forward to seeing you very, very soon. 

Sitpah: Thank you so much, Gautam. I look forward to India and was such a pleasure because you picked all the questions I love speaking about. So, thank you for that and we'll catch up again in New Delhi. 

Gautam: Absolutely. Thank you. 

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's global International Arbitration practice, email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. 

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Transcript is auto-generated.

This International Women’s Day (IWD), London counsel Lucy Winnington-Ingram hosts women arbitration practitioners across Reed Smith’s global platform: Elizabeth Farrell (London), Rebeca Mosquera (New York), Juliya Arbisman (New York), Vanessa Thieffry (Paris) and Alison Eslick (Dubai) for a Q&A session exploring what this year’s IWD theme means to them.

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Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. Welcome to our Women in Arbitration podcast mini series, a platform for women's voices across the global international arbitration community. I'm Lucy Winnington-Ingram, an international arbitration lawyer based in Reed Smith's London office. In these episodes, we will hear from leading women in the international arbitration space and discuss industry news, trends, developments, and matters of interest. And with that, let's get started. 

Lucy: Hello, I'm Lucy Winnington-Ingram, council at Reed Smith with a practice that focuses on investor-state arbitration and public international law. This International Women's Day, I'm delighted to be joined by women arbitration practitioners across Reed Smith's global platform to discuss this year's International Women's Day theme, Inspire Inclusion. Inspire Inclusion, focuses on encouraging others to understand and value women's inclusion. And when women themselves are inspired to be included, there's a sense of belonging, relevance and empowerment. I'll be joined by Elizabeth Farrell, Rebeca Mosquera, Juliya Arbisman, Vanessa Theiffry and Alison Eslick to hear their views on diversity, equity and inclusion in the legal profession as it pertains to women, and who has been a mentor in their careers that embodies the Inspire Inclusion theme. And my first guest on today's podcast is Elizabeth Farrell. Elizabeth is a partner in our Energy and Natural Resources Group in London. And Elizabeth's practice focuses on international arbitration in the commodities and energy sector. Hello, Elizabeth, how are you today? 

Elizabeth: Hi, Lucy. I'm very well, indeed. It’s a pleasure to be speaking with you. 

Lucy: Well, thank you so much for joining us. So my question for you Elizabeth is what advice would you give to young women entering the legal profession? 

Elizabeth: Big question. I mean, firstly, it's a wonderful career. Just say that, I mean, it is full of endless variety and potential. So anybody considering a career in the law, I think you're on the right track. I'd also say I can only speak to this really from the perspective of somebody in an international law firm um in London specifically. And I'd say in many ways, that kind of environment is about as progressive as you can get in a modern workplace. Um full of incredibly supportive role models and leaders who want you to achieve your potential. But uh there's still you know, a significant gender disparity in senior roles. So I would say first piece of advice is stand on the shoulders of the women who have come before us and seize every opportunity that comes to you, try to see that opportunity as a privilege and know that undoubtedly, although we work incredibly hard, the harder you work, especially earlier on in the in your career, the more luck you you create for yourself, the more opportunities will come your way. And if you invest in it, your career will always be there for you, whatever else happens in your life. And so that, that hard graft in the early years, you know, really pays off. 

Lucy: Thanks Elizabeth. And I, I mean, I have to agree. I've been incredibly lucky in my career to have some incredible female role models that I've sort of grown up underneath who have really taken me under their wing and helped to lift me up through the ranks. And I feel very privileged to have had that. 

Elizabeth: Absolutely. And it's kind of like, it's a quote by um the very different context of a career, but a quote by Serena Williams that I really like. And she talks about the success of every woman being an inspiration to another that we should raise each other up and therefore make sure that we're very courageous, be strong and be extremely kind. And I have, you know, I think that's a really, really good sort of motto to live by as a woman in, in the legal profession. Never forget though that something I have noticed is that many men have fewer hangups than many women over pushing themselves forward. Whether it be for promotion, whether it be for a pay rise, whether it be for a type of work that they would like to be doing. So I would say to any woman starting off in their career, please just don't hold back for fear of being considered too, too difficult or too undeserving. Just go for it. All I mean, by that really is, do yourself justice, talk up your accomplishments and your vision and the way you would like your career to go in a way that that gets you recognized intentionally in, in the right way. 

Lucy: I agree, Elizabeth and I think, you know, traditionally women have not maybe a not all women of course, but some women have not advocated for themselves in the way that their peers, their male peers have done. And I think increasingly there's an awareness around that. and an encouragement for young women to do that as they rise up in their careers. 

Elizabeth: Exactly. 

Lucy: OK, Elizabeth. Thank you very much. So, bonus question for today's episode is who has been your mentor? And why? 

Elizabeth: Well, I've been lucky to have a number of people who have mentored me, coached me and perhaps more importantly, championed me, you know, I couldn't possibly pick out just one because there have been at least five and certainly two or three who will, you know, recent ones who will know very, very, very clearly who they are. I'm eternally grateful to them. And as I say, I think in many ways, having a champion who will speak up for you, you know, slam the fist on the table for you in a meeting and say no, you know, I remember her or think about what she's achieved is, is just as important as somebody you can turn to for advice in a more traditional mentoring relationship. 

Lucy: I completely agree. And just to finish off, I think one thing that I would say to, you know, women coming into the profession is that those mentors, those champions can come from anywhere in the firm. You know, I actually have still have a champion who was my trainee supervisor when I was a trainee, but not in my current department. And I think that's really important to remember that as you build those relationships. Um Those can see you through your career even from very unlikely places. And my next guest on today's podcast is Rebeca Mosquera. Rebeca is a senior associate in our New York office, specializing in investment treaty arbitration. Hello, Rebeca. 

Rebeca: Hi, Lucy, how are you? 

Lucy: I’m very well. Thank you very much for joining me for your second International Women's Day podcast. 

Rebeca: Well, thank you so much for the invitation and honestly, I wish I were in London now having tea with you during this conversation. 

Lucy: Likewise, but hopefully again, soon. So Rebecca, my question for you is what are some effective strategies or practices you've seen or implemented that foster inclusivity particularly for women and underrepresented groups? 

Rebeca: So, well, Lucy, this is, this is a great question because I do believe that we all have the power to affect change whether that change is positive or negative, that really depends on us. And there is no secret that there is a patent access problem for women and under represented groups in decision making positions. According to a recent women in business report by Grant Thornton women held 35% of senior management positions in North America and 28% in Europe, but only 19% in Africa in 2021. I assume that the statistics for Latin America and other parts of the world are not any better and to exemplify how acute the issue is according to other more recent reports at the current rate of progress, if if we can call it progress, it will take about 286 years for the world to achieve gender equality. Imagine what that means for underrepresented groups. I would dare say that the problem is even more acute in international arbitration. A field known to be relatively small and extremely hard to break into. Because of this I personally and through different initiatives, I belong to like ArbitralWomen, the ERA Pledge and the ERA pledge, I have implemented many strategies and practices to move the needle in the right direction because having diverse professionals is good for business. But in international arbitration, it ensures the legitimacy of the process. And so from where I sit during the constitution of the tribunal process and the potential selection of expert witnesses. I have relentlessly provided team members and clients with lists of female arbitrators and experts with the required credential. And let's just not forget that recently uh the Compendium of Unicorns was launched. So we have a global guide to women arbitrators now very handy. And among the other strategies that I try to implement, I also believe in recognizing and promoting my colleagues accomplishments, especially women, minority groups and younger professionals. And and I believe that to tackle the issue of gender and diversity in our field, women must support each other and work together. And truly, there is no room for excuses, but we also need male allies and champions, especially from those considered an authority in our field. But truly, we don't need to look too far away. Most male colleagues play a crucial role in becoming allies and champions. And Lucy, I honestly, we're not sure of tragedies uh seeking to level the playing field for women. For example, I recently came across an initiative that should be widely adopted, I believe. And I want to thank Amanda Lee for bringing it to my attention. It's from the Association for Women in Cryptocurrency. They launch a pledge for male allies, inviting them to commit to not participating in all male panels commonly referred to as manels. And the argument is that if more male colleagues agree to speak on panels, only after organizers have confirmed gender parity, we could promote greater inclusivity and visibility for women and other underrepresented groups. And one thing that I, that, that I want that, I think it's very important I want to highlight is that Reed Smith is also a signatory to many of the initiatives I mentioned earlier. And that is a testament to the firm's commitment to gender equality, diversity, equity and inclusion and to wrap it up. Lucy, I want to end quoting my favorite, late former associate justice of the Supreme Court of the United States, Ruth Bader Ginsburg or the notorious RBG as she used to be known in pop culture. She said that um well, she said many great things and the many other extraordinary things spending much of her legal career as an advocate for gender equality and women's rights winning many arguments before the Supreme Court. She said that women belong in all places where decisions are being made. This is a powerful motto to keep in mind as we all continue to advocate for more gender parity and diverse representation in our professional lives. 

Lucy: Thank you very much for that very insightful answer, Rebecca. One thing you said really resonates with me and that goes to the relationship between diversity and legitimacy. Investment arbitration in particular is currently suffering from what is often referred to as a crisis of legitimacy. And it's so important that the decision makers are representatives of diverse groups and we have seen some progress towards this, but by no means enough. 

Rebeca: Absolutely. I agree. And, and it is known it's been proven that when you have uh diversity at panel levels or even council, you get better decisions and you also get, you know, better arguments. I read uh recently a, an article from Lucy Greenwood and where she was precisely advocating for this, and she mentioned that they were groups separated and they needed to resolve a mystery murder and all the people that look the same and knew each other were put in a group and then in another group, they put at least one person that didn't belong or didn't look like them. In fact, they didn't know each other. So um the group where everyone looked the same and they knew each other, they were very confident about their answer. But in the end, they got the answer wrong. While the other group, when they submitted their answer, they were not completely sure, there were also more uh arguments, but in the end, they got it right. So that's something to say about the entire process of, you know, legitimize the ISDS field. 

Lucy: That's really interesting. Rebecca and I wasn't aware of that. Um I'm gonna go and read that article now, after this podcast. Now, I just have one further question for you, which is a question that I'm asking to all my guests today. And that's who is a role model or mentor in your career that you feel best embodies the inspire inclusion message. 

Rebeca: So choosing just one role model or mentor is difficult as I've been fortunate to have several throughout my career. However, since we've been discussing male allies, I would like to mention a few gentlemen who've been particularly inspiring in promoting inclusion and diversity. One is John Fellas, now an independent arbitrator. The other is our very own Gautam Bhattacharyya. But I also want to highlight my husband, Benjamin Malek. Without him, I will not be able to do what I do every day. And so these gentlemen talk the talk and walk the walk when it comes to inclusion and diversity. I have witnessed firsthand their unyielding commitment to gender equality and building access for underrepresented groups. And I'll tell you they are phenomenal. But most importantly, I have to mention my mother. My mother, she was not, she never graduated from university, but she relentlessly believed in education and given her kids all the tools and and access to better education and to make it happen. She never told me, Rebeca because you're a woman or because you are a Latina or Hispanic, you can't do X, Y and Z she always pushed me and, and that's why, you know, when I see all these differences or, or that there is no enough access, I think about my mother and I believe that she was very advanced or very ahead of her time when she was raising me. 

Lucy: Thank you for sharing that Rebeca and you're absolutely right. Mentors can be people we work with, but they can also be people outside of work. So my next guest is also from our New York office I have with me, new joining partner Juliya Arbisman, uh who's a partner in New York and London who focuses on International Arbitration. Juliya, thank you very much for joining me today. 

Juliya: Thanks Lucy. Glad to be here. 

Lucy: So Juliay, my question for you is what barriers do you believe still exist for women in law? And how could we collectively work to dismantle them? 

Juliya: Thanks, Lucy. Look barriers mean a lot of things obviously, I think to deconstruct it a little bit if the question is, are there sort of systemic barriers to women at law? I think for the most part, we are in a much better place than we have ever been in terms of explicit issues such as discrimination and harassment, as well as less explicit issues like unconscious bias in terms of career advancement, lack of access and cultural norms in terms of seeing uh women in those roles. All that being said, I think it's hard to ignore that there is a significant level of attrition in particular by women in law as they push towards um the more advanced stages of their career and whether that is by choice or just by circumstance, in terms of how it aligns with um their particular ambitions. I think, uh you know, that that is, that is something that, you know, there has to be more study on and um more um action around at the end of the day. I think we all humbly recognize that law is a service industry, it requires a lot of reactiveness. This, this is uh something that I think women excel at uh women excel at the multitasking and, you know, and responsibility and ownership as to what they have. And sometimes that level of responsiveness, which is implicit in our profession tends to put additional strain, I think on women, especially during, you know, mothering years and childbearing years. And I think that is a systemic issue which arises, you know, as we say, it is what it is uh in terms of the support structures um that law firms and institutions develop as well as just women um feel they can bring to the table in terms of mentoring and guiding each other through those um you know, particular acute stages. I think we're in much, much better stages on all of that. So that's the point as to systemic barriers to the extent that I see them as to what can we do to break them down anything and everything. And again, I don't think this is a issue only to be answered by women, but as institutions who, you know, put a pledge and, and create sort of a thoughtful system around this particular issue to, to ensure that there's representation. But I think we as individuals also can do something uh quite modest, which is to stop being apologetic for all the aspects that feed into our personalities, whether they are personal or professional and ultimately feasible by the horns. And uh that is something I think piece by piece, we all could do more, which is just to be in a more empowered state in and of itself and then, you know, to appeal to the wider community in order to, you know, to get support and recognition around that. 

Lucy: Thank you very much Juliya. My bonus question to you then and I've asked everyone else this same question, who is a role model or mentor in your career that you feel best embodies the Inspire Inclusion message. 

Juliya: That's a very tough question I'm sure for anyone who ultimately to grow in law, one requires a great level of mentorship. I think there is a bespoke way of shaping one's career I think as the International Arbitration. We have such a steep learning curve pretty much at every stage of what we do because we're encountering new legal systems, new cultural systems. Uh you know, everything we do is inherently international. And I think looking at examples of uh women, I would say, particularly from kind of weaker rule of law countries in the way that they, you know, have managed to, you know, create not, not just their own brand, but you know, a real working ecosystem around, you know, the legal issues that impassion them. And there are more individuals than I can recall whom I have met from, you know, all quarters of the world who have really exemplified that and inspired me I think as a, as a class of individuals, you know, and have shown us that really what what we are doing is um is much, much easier than, than what they had to do. And I think, you know, we’ll collectively keep that forward. 

Lucy: And as a senior partner, is it still important to have mentors? Or would you say that you are now more focused on being a mentor to others? 

Juliya: I think it takes two to tango in terms of shaping one's career in the modern world, especially in large enterprises such as law firms. I think mentorship is a honor. It's also a duty. And I think everyone along their respective paths have a lot to offer. And I don't necessarily see this as a woman's issue. I think uh generations of lawyers have very good insight and reflection for the next generation because one, they've been through the trenches, but two, they can reflect on the speed of change and the kind of issues which are, you know, manageable and, and I think that's how we, you know, better, the practice of law and perhaps, you know, through that collective effort deconstruct some of these barriers that you were mentioning in the, in the earlier part of the call. 

Lucy: No, I absolutely agree. And it's, it's certainly not a, a mentorship is certainly not a women's issue. And I know myself and many of the other people we've had on the podcast today, you know, their mentors have been men and it's all about having different, you know, different perspectives. Thank you very much, Juliya. That's been fantastic to have you here. So, my next guest is Vanessa Thieffry, a senior associate in our Paris office who focuses on international arbitration. Hi, Vanessa, how are you? 

Vanessa: Hi, Lucy. Very well. Thank you and thank you for inviting me to speak during your podcast. 

Lucy: Oh, it's great to have you here today. So, Vanessa, my question to you is, how have you been inspired in your legal career? And how has this influenced your approach to inclusivity in the workplace? 

Vanessa: Well, Lucy, I think that my inspiration comes from the diversity of structures and teams I have been working with during my legal career, I started off in a very small boutique arbitration firm. We were only five lawyers, then I came into a bigger structure, an independent law firm that had 70 lawyers, but we were only a team of 10. And for five years now, over five years, I've been at Reed Smith with a global arbitration team, but within an office and I think that in smaller offices, you have a better feeling of belonging and having a voice within your team. That's what I felt in this first structure I was in where we were five. Of course, when you are five, you have a voice and a sense of belonging. In my second law firm, we were 70 people, 70 lawyers. But again, the team was very closely knit and we were about 10 lawyers. So again, you have a voice, you have this sense of belonging, you have this sense of wanting to further your team and in bigger structures, what I discovered, Reed Smith is that you have this organization in industry practice groups and community groups which enable you to have an identity and to be included and to further inclusivity. So I think that my inspiration comes from these organizations that all come up to two things, teamwork and adaptability and that is how you get your sense of belonging. 

Lucy: That's really interesting, Vanessa, thank you. And you know, I've spent my whole career at Reed Smith. So in some ways, I have a limited pool of experience to, to draw on in that, in that respect. So thank you for sharing that. Now, Vanessa, my bonus question that I'm asking all of my guests today who is a role model or mentor in your career that you feel best embodies the inspire inclusion message and this can be more than one person. 

Vanessa: Well, there haven't been a number because as I was saying, I think it all comes back to teamwork. My first boss was an 80 plus year old arbitrator. So of course, you feel inspired and listen to when you're a young lawyer and you are face to face with that arbitrator who can be scary and he listens to you and, and afterwards throughout my career, I have been lucky enough to have strong team managers who knew how to hear their team members. And at Reed Smith that goes um with our internal WINRS group Women's Initiative Network who does a lot to promote women and in our firm and to give them a sense of belonging. And we also have strong industry and practice groups or international arbitration group. Although it is across 32 offices is actually a very strong knit and tight network of arbitration practice lawyers who regularly get together to work together and who promote their associates also. 

Lucy: Thanks so much Vanessa. That's great. And my next guest, I have senior associate Alison Eslick, who focuses on construction arbitration in our Dubai office. Hello, Alison, thanks so much for joining me today. Now, my question for you Alison is how do you envision the evolution of the legal profession in terms of gender equality and inclusion? 

Alison: Thanks Lucy, I'm delighted to um handle that question because although we still have a long way to go. Look, I am really optimistic about DEI in the legal profession. And I think, you know, there's never been a time when DEI and ESG um have been talked about more in legal circles and the momentum really does seem to be growing. So I wanna give you an example, Lucy of some exciting changes here in the Middle East where as you know, I've been based since 2008. So most notably at the moment, all eyes are on the Kingdom of Saudi Arabia. So there's enormous economic and societal changes going on in the Kingdom, especially for women. So one of the Saudi government's vision, 2030 targets is to have 30% female workforce participation by 2030. And that target was actually smashed in 2023 with participation reaching 35%. There's also legally strict enforcement of equal pay for women. And we've got several examples of Saudi power, women in top C-suite and general council roles. So for example, the General Council and Secretary General of Saudi's Public Investment Fund PIF is a woman. Her name is Shihana Alazzaz. So basically the top legal job in Saudi at the moment is filled by a woman. We've also got Sarah Al-Suhaimi who's a chairperson of the Saudi Stock Exchange. Um We've got Esraa Al-Buti who's the first female tax partner at Ernst and Young in Saudi. And look, I mean, Lucy 4 to 5 years ago, I would not have been sitting here so excited about DEI in the Kingdom of Saudi Arabia, but it really does seem to be happening. You've also got the SCCA which is the Saudi Centre of Commercial Arbitration. It's a signatory to the ERA pledge and they're really taking seriously their commitment to appointing female arbitrators. So, look, I think the changes in Saudi are a great example of how positive changes uh for women can and actually are happening in the legal profession, perhaps even in places where you might least expect it. 

Lucy: And my bonus question, Alison, who is a role model or mentor in your career that you feel best embodies the Inspire Inclusion message. 

Alison: OK. Look, I'm gonna stick with the theme of Saudi for the moment. And I want to say that a role model I've recently discovered is a lady called Bayan Mahmoud Al-Zahran. So she became uh one of the first female attorneys in Saudi Arabia back in 2013. She was aiming to breakdown barriers in Saudi and she launched an all female law law firm with the goal to fight uh for the rights of local Saudi women. So, I mean, she was a trailblazer and I, I think you can't get something more inspirational than that. 

Lucy: And that concludes this year's International Women's Day, Women in Arbitration podcast. We hope you've enjoyed listening. 

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration Practice. Email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome, any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

All rights reserved. 

Transcript is auto-generated.

This episode is recorded in Russian.

In this Russian-language edition of our ISDS podcast series, Sultan Seidalin and Aitmaganbet Ospanbekov provide a comprehensive overview of the most significant developments in investment treaty arbitration during the latter part of 2023. This episode is a Russian-language translation of our previous episode “Investment treaty arbitration: 2023 in review” hosted by Suzie Savage and Patrick Beale. 

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Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started. 

Aitmaganbet: Здравствуйте и добро пожаловать на наш первый выпуск серии подкастов на русском языке. Я напомню, что это по-русски урегулирование споров между инвестором и государством или сокращенно, как его называют «УСИГ». Меня зовут Айтмаганбет Оспанбеков, и я являюсь юристом в группе по международному арбитражу в офисе Рид Смит в городе Астана. Я рад, что ко мне присоединился мой коллега Султан Сейдалин, старший юрист по международному арбитражу, также работающий в астанинском офисе Рид Смит. Здравствуйте, Султан. 

Sultan: Здравствуй, Айтмаганбет. Очень приятно вести с тобой этот подкаст. Всегда интересно, конечно, проверить и подвести итоги того, что произошло за последние шесть месяцев, и что нас ждет в перспективе. 

Aitmaganbet: Да, определенно интересно, и нам есть о чем поговорить начнем с Договора к энергетической хартии. Ранее государства-члены ЕС выразили намерение выйти из ДЭХ. Европейская комиссия в своем прошлогоднем решении настаивала на скоординированном выходе ЕС, Евроатома и всех государств-членов из Договора к энергетической хартии. Намерение выйти из ДЭХ связано с обеспокоенностью общества о том, что ДЭХ представляет защиту инвестициям, осуществленным в сектора горючих полезных ископаемых. В результате чего ДЭХ находится в кризисе, а его будущее не определено. Что-то изменилось с тех пор Султан? 

Sultan: Да, Вы правы, Айтмаганбет одиннадцать стран уже уведомили о своем выходе или намерении сделать это. И седьмого июля Комиссия Европейского союза предложила скоординированный выход TC, его государств-членов и Евроатома из Договора к энергетической хартии. Более того, в сентябре Правительство Великобритании объявило, что пересмотрит членство Великобритании в договоре и рассмотрит возможность выхода из него, если соглашение по изменённым условиям не будет достигнуто к ноябрю две тысячи двадцать третьего года. Если государства Европейского союза осуществят скоординированный выход, это вдвое сократит число подписавших сторон и, следовательно, географический охват мер защиты, предусмотренный ДЭХ. Тем не менее, на заседании Конференции Энергетической хартии в ноябре прошлого года секретариат ДЭХ указал, что они желают возобновить свою политику консолидации и расширения привлечений, так называемое CONEXO, путем рассмотрения потенциального сотрудничества с ОПЕК. Это может указать намерение расширить членство в ДЭХ за счет государств ОПЭК. 

Aitmaganbet: это все представляет большой интерес, учитывая всю неопределенность относительного будущего ДЭХ. Существует ли альтернатива для инвесторов, которые считают, что маршрут защиты инвестиций через ДЭХ для них закрыт? 

Sultan: Да, конечно, инвесторам следует определить, имеется ли соответствующее двустороннее инвестиционное соглашение предполагающее защиту аналогичную ДЭХ. Если нет, они могут рассмотреть возможность реструктуризации своих инвестиций через оставшиеся государства, подписавшие Договор к энергетической хартии. Они также могут попытаться усилить договорную защиту посредством соглашения с правительством принимающей страны. и в качестве альтернативы, если государство инвестора и принимающее государство являются участниками Европейской конвенции о правах человека, существует еще возможность для них сослаться на положения о защите собственности, содержащиеся в статье 1 Протокола 1 к этой Конвенции. К примеру, группа акционеров ЮКОСа успешно подала иск против России до ее выхода из Конвенции по ЕСПЧ и получила компенсацию в размере почти два миллиарда долларов США. Ну и, наконец, может быть рассмотрен вариант страхования от определенных рисков. 

Aitmaganbet: Спасибо, Султан. Приятно осознавать, что у инвесторов есть и другие варианты. Теперь предлагаю обсудить кратко другой вопрос это процедуру исполнения арбитражного решения. Недавно в английских судах рассматривалось крупное дело по этому вопросу. Не так ли, Султан?

Sultan: Совершенно верно. В деле Инфраструктурные услуги Люксембурга против Испании Английский коммерческий суд отклонил попытке Испании воспрепятствовать исполнению решения ДЭХ, вынесенного в пользу инвесторов, учрежденных в Европейском союзе.

Aitmaganbet: Дело в том, что в этом отношении английский суд не последовал решениям Суда Европейского союза по делам Achmea и Комстрой, который определил, что внутриевропейское арбитражное разбирательство в рамках ДЭХ противоречило законодательству ЕС. 

Sultan: Все правильно. Позиция Европейского союза заключается в том, что он является окончательным арбитром по всем вопросам, касающимся интерпретации и применения правового порядка Европейского союза. Однако судья по делу Инфраструктурные услуги Люксембурга против Испании установил, что договоры Европейского союза не имеют приоритета над положением о разрешении споров в статье 26 ДЭХ. Соответственно, арбитражное решение против Испании имело возможность быть зарегистрированным и исполненным в Великобритании. Что касается внутренних дел Великобритании, произошло еще одно весьма интересное событие. Так, Комиссия по законодательству провела пересмотр закона об арбитраже Великобритании 1996 года. 

Aitmaganbet: Да, это так, и Комиссия по законодательству опубликовала свои рекомендации в сентябре прошлого года. Предложения и поправки были разработаны после консультаций с арбитражными юристами и всеми заинтересованными лицами. Кстати, включая Рид Смит, чьи рекомендации были процитированы в отчете Комиссии по законодательству по этому вопросу. Законопроект об арбитраже был затем включен в речь короля в ноябре прошлого года. Это означает, что его будут рассматривать на следующей законодательной сессии. 

Sultan: интересно, а какие основные рекомендации заинтересуют практикующих юристов, занимающихся инвестиционными спорами, с твоей точки зрения?

Aitmaganbet: несмотря на то, что существует несколько примечательных рекомендаций, в том числе в отношении упрощенной процедуры урегулирования иска и обязанности арбитов раскрывать информацию о любых потенциальных конфликтах интересов или любую соответствующую информацию, которая может повлиять на их беспристрастность, я думаю, что больше всего юристов-практиков по инвестиционным спорам заинтересует предполагаемые изменения оспаривания вопроса материальной юрисдикции трибунала. 

Sultan: А можешь подсказать о том, какую реформу предложила Комиссия по законодательству? 

Aitmaganbet: Да, конечно, цель состоит в том, чтобы упростить процесс оспаривания материальной юрисдикции арбитражного суда. Основной целью предлагаемой реформы является обеспечение, чтобы если трибунал уже вынес решение о своей юрисдикции, а возражающая сторона участвовала в этом процессе, то любое последующее оспаривание решения, согласно статье 67. то есть из-за отсутствия материальной юрисдикции должно осуществляться только путем пересмотра, а не полного повторного слушания, как это происходит в настоящее время. Цель состоит в том, чтобы снизить риск несправедливого и расточительного повторного слушания, который потенциально может возникнуть в результате полного повторного слушания. Возможность предоставить новые аргументы или доказательства, или пересмотреть старые доказательства будет ограничена только исключительными ситуациями. 

Sultan: Да, в этом есть смысл. А как было воспринято это предложение?

Aitmaganbet: Спасибо за хороший вопрос Существует опасения, что оспаривание по статье 67, не являющееся полноценным повторным слушанием, может оказаться недостаточным для возникновения эстопеля в отношении вопроса при исполнении арбитражного решения за рубежом. Тогда возражающая сторона может начать еще одно оспаривание юрисдикции в иностранном суде, исполняющем решения. Возникшие в результате этого задержки и возросшие расходы, скорее всего, будут намного больше, чем экономия, полученная за счет отказа от повторного рассмотрения дела в Англии. Неопределенность и процессуальная несправедливость также будут гораздо выше, что сделает реформу статьи 67 пирровой победой. Однако комиссия по законодательству не была убеждена в значимости этого риска, отчасти потому, что ожидает, что иностранные суды все равно могут найти основания для возражения по делу даже в отсутствие полного повторного слушания. Ну что ж, время покажет, насколько обоснованы эти опасения. 

Sultan: Давай вернемся к индо-тихоокеанскому региону. В июле прошлого года Великобритания подписала всеобъемлющее и прогрессивное соглашение о транстихоокеанском партнерстве (CPTPP), и у нее есть двенадцать месяцев на ратификацию соглашения, вступления в силу которого ожидается во второй половине 2024 года. В торговый блок входит Австралия, Новая Зеландия, Япония, Сингапур, Малайзия, Бруней, Вьетнам, Канада, Мексика, Чили и Перу. 

Aitmaganbet: У меня возник вопрос, включает ли CPTPP положение об урегулировании споров между государствами и инвесторами. 

Sultan: CPTPP является первым соглашением о свободной торговле после Брексита, подписанным в Великобритании, которое включает положение об урегулировании инвестиционных споров. Тем не менее, у Великобритании уже есть действующие двусторонние инвестиционные соглашения с Сингапуром, Малайзией, Перу, Чили, Вьетнамом и Мексикой, которые также содержат арбитражные оговорки между инвестором и государством. Однако Великобритания вела переговоры о дополнительных соглашениях с Австралией и Новой Зеландией, с которыми у нее нет существующих двусторонних инвестиционных соглашений для того, чтобы исключить применение УСИГ (ISDS) в рамках CPTPP.

Aitmaganbet: А как рассматриваются иски УСИГ (ISDS) в рамках CPTPP?

Sultan: Стандартная процедура иски рассматриваются трибуналом в составе трех арбитров по одному арбитру назначается каждой сторон, и председатель назначается совместно сторонами, если иное не согласованно сторонами. 

Aitmaganbet: Есть ли какие-то особенности механизма урегулирования споров между государством и инвестором в данном случае, о которых слушателям будет полезно узнать? 

Sultan: Да, я думаю, что интересно знать следующие основные моменты. В соглашении предусмотрен обязательный шестимесячный период для переговоров, так называемый «cooling-off» период.  Инвесторы могут подавать иски CPTPP без предварительного обращения к национальной судебной системе, хотя есть оговорка о подсудности, которая не позволяет инвесторам обращаться в арбитраж против Чили, Мексики, Перу и Вьетнама, по искам, которые уже были поданы в национальные суды или административные трибуналы этих государств. 

Также уведомления об арбитраже направленные на любой сторон, подписавших договор должны сопровождаться письменным отказом от права на возбуждение или продолжение рассмотрения тех же исков в любом суде, административном трибунале или другом органе по разрешению споров. И одна особенность, на которую следует обратить это срок исковой давности Он ограничен сроком в 3.5 года. 

Aitmaganbet: А как насчет материальной защиты, предлагаемой данным договором? 

Sultan: Ну, здесь для некоторых секторов, к примеру, здравоохранения присмотрено исключение из стандарта национального режима. Соглашение представляет государствам право отказать в применении Главы договора об инвестициях, касающихся государственных мер по контролю за табаком и табачной продукцией и недискриминационных регуляторных актов, направленных на достижение общественного благосостояния. Это не рассматриваются как косвенная экспроприация.

Aitmaganbet: Султан, а какие правила применяются к арбитражу в рамках CPTPP?

Sultan: здесь могут рассматриваться и применяться регламенты МЦУС или ЮНСИТРАЛ, а также любые другие арбитражные регламенты, которые будут согласованы между сторонами. 

Aitmaganbet: Большое спасибо, Султан. А теперь давайте перейдем от Индотихоокеанского региона к Америке и поговорим больше о раскрытии информации в США. Верховный суд США недавно пришел к выводу о том, что помощь в раскрытой информации в США в соответствии со статьей 1782 Кодекса США не распространяется на иностранный частный коммерческий арбитраж или специальный арбитраж между инвестором и государством. Верховный суд постановил, что на статью 1782 можно слаться только в том случае, если иностранный трибунал является правительством или межправительственным судебным органом 

Sultan: Да, и это оставило вопрос о том, можно ли использовать статью 1782 для поддержки арбитражных разбирательств в рамках МЦУИС.

Aitmaganbet: Совершенно верно. Однако следует уточнить, что Верховный суд не дал конкретного теста или критерия, которому должны следовать нижестоящие суды в таких случаях.

Sultan: Да, я бы хотел отметить в данном случае решение по делу Webuild S.P.A, рассмотренное в Южном округе Нью-Йорка, в рамках которого был отклонен запрос истца о предоставлении доказательств для использования перед трибуналом МЦУИС. Судья данного суда пришел к заключению, что содействие по сбору доказательств в рамках статьи 1782 недоступно истцам в арбитраже МЦУИС по в рамках ДИС между Панамой и Италией. 

Aitmaganbet: Совершенно верно, и это решение теперь обжаловано во Втором апелляционном округе. Подготовка аргументации завершена в августе прошлого года, включая докладную записку, предоставленную Соединенными Штатами, которая утверждает, что арбитражный суд между инвестором и государством, созванный в соответствии с Конвенцией МЦУИС, не является иностранным или международным трибуналом в соответствии со статьей 1782. 

Sultan: Да, будет интересно посмотреть, как второй апелляционный округ решит подойти к этому вопросу. И я думаю, что мы обязательно вернемся к данным событиям в нашем следующем выпуске.

Aitmaganbet: Давайте теперь поговорим о реформе УСИГ (ISDS). Рабочая группа №3 UNCITRAL рассматривает широкомасштабные реформы системы. В октябре прошлого года Рабочая группа рассмотрела проекты положения о процедурных реформах и так называемых сквозных вопросах.

Sultan: именно так, Айтмаганбет, и секретариат сейчас представил проект положений, которые могут быть включены в существующие или будущие международные инвестиционные соглашения, или в качестве дополнения к арбитражного регламенту ЮНСИТРАЛ. Они рассматривают многие вопросы, которые были спорными. 

Sultan: Текущие предложения сгруппированы в три раздела. В первом разделе рассматриваются условия ограничения подачи требований. в рамках инвестиционных споров, например, инвесторы обязаны инициировать разбирательство в судах, принимающих государств в отношении оспариваемых мер, прежде чем они смогут прибегнуть к инвест арбитражу. Также существует требования к инвестору отказаться от права инициировать или продолжать любое другое производство по разрешению споров, касающееся оспариваемых мер. 

Предполагается предусмотреть срок исковой давности, продолжительность которого еще не определена. 

Предусматриваются подробные положения, касающиеся обстоятельств, при которых государство может отказать инвестору в преимуществах МИС, в том числе, когда инвестиции были сделаны в нарушение законов и правил государства или национальных или международных принципов добросовестности или были сделаны путем коррупции, мошенничества или обмана. Также предусмотрено четко выраженное право договаривающихся сторон урегулировать спор в общественных интересах и принимать меры для обеспечения того, чтобы инвестиции осуществлялись с учетом защиты общественного здоровья, окружающей среды, а также поощрения и защиты культурного разнообразия.

Ну и, наконец, в этот раздел включено право государство определяет встречные иски, что является очень важным моментом.

Aitmaganbet: В дополнении ко всему, второй раздел посвящен проведению разбирательств, в том числе и в отношении бифуркации, обеспечительных мер досрочного прекращения дела, обеспечения расходов и финансирования арбитражей третьими сторонами, так называемый «third party funding». Третий раздел содержит положение, регулирующие оценку трибуналом ущерба и компенсации. Они требуют, чтобы трибунал учитывал вину истца, его неспособность смягчить убытки или ущерб. В нем также рассматривается вопрос об оценке ущерба в случаях осуществления инвестиций на ранней стадии, т. е. без истории ведения бизнеса, чтобы снять опасения по поводу иногда спекулятивного характера таких исков. Обсуждение будет продолжено на следующей встрече, которая состоится уже совсем скоро двадцать второго января текущего года в Вене. 

Sultan: Спасибо. Я думаю, мы будем ждать остальных событий, которые будут в этом году в ближайшей перспективе. Я думаю, что на этом мы завершим выпуск. Я надеюсь, что это был интересный и полезный обзор недавних и ожидаемых событий в инвестиционном арбитраже Большое 

Aitmaganbet: спасибо, что слушаете наш подкаст. Мы надеемся, что вам также будет интересен следующий выпуск нашей серии подкастов и особенно следующий подкаст, посвященный системе урегулирования споров между инвесторами и государством. На нашем сайте вы можете узнать больше об опыте работы Reed Smith в Лондоне, Париже, США, Астане и других странах по вопросам инвестиционных споров. 

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration Practice, email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

All rights reserved.

Transcript is auto-generated.

This episode is recorded in Spanish.

Rebeca Mosquera and Isabella Lorduy welcome Elina Mereminskaya, head partner at Wagemann Arbitration and chair of the Institute for Transnational Arbitration (ITA) Americas Initiative, for a conversation exploring the strides and struggles of women in arbitration toward achieving equity. They then discuss the collaboration between the ITA and the Reed Smith Latin America Business Team in creating the 2023 ITA Latin American Arbitral Institutions Guide and Scoreboard, along with the insights gained.

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Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. Welcome to our Women in Arbitration podcast mini series, a platform for women’s voices across the global international arbitration community. I am Lucy Winnington-Ingram, an international arbitration lawyer based in Reed Smith’s London office. In these episodes, we will hear from leading women in the international arbitration space and discuss industry news, trends, developments and matters of interest. And with that, let’s get started.

Isabella: Welcome to Arbitral Insights. Mi nombre es Isabella Lorduy Asociada de Reed Smith en el Grupo de Energía y Recursos Naturales Es un gusto estar hoy en este espacio grabando nuestra primera serie Podcast en español. Hoy precisamente nuestro tema de conversación se enfocará en Latinoamérica específicamente en la guía del Institute for Transnational Arbitration, comúnmente conocido como el ITA sobre las instituciones de arbitraje en América Latina. Y hoy estaremos conversando sobre sus principales conclusiones frente a la diversidad de género. Para esto tenemos dos invitadas muy especiales. En primer lugar, tenemos a Rebeca Mosquera, quien es asociada senior en la oficina de Nueva York de Reed Smith con más de una década experiencia en arbitraje internacional, comercial y de inversión. El trabajo de Rebeca, la ha hecho merecedora de numerosos reconocimientos, incluyendo un lugar en la lista de Latinx de las cien mejores abogadas de América Latina en arbitraje y litigios por cuatro años consecutivos. Además, Rebeca es miembro de la junta directiva de Arbitral Women y representante de ICC YAF para Norteamérica, entre otras instituciones.

Por otro lado, tenemos a Elina Mereminskaya. Elina, Disculpe por la pronunciación del apellido de antemano. Elina es socia de Wagemann Arbitration, presidente de la ITA para las Américas, Doctora en Derecho de la Universidad de Göttingen en Alemania y Magisterio en Derecho de la misma universidad. Ha concentrado su ejercicio profesional asesorando a grandes empresas nacionales, latinoamericanas y europeas en varios proyectos. Además, pertenece a la lista de árbitros en diversos centros arbitrales, incluyendo la Cámara de Comercio de Chile, el ICDR y entre otras instituciones. Elina también es Fellow del Chartered Institute of Arbitrators. Sin más preámbulo, quiero empezar explicándole un poco a la audiencia que es el ITA o ITA, el cual ya he mencionado varias veces. Este es un foro educativo para el intercambio de ideas y el desarrollo de las mejores prácticas entre abogados, árbitros y profesionales involucrados en el arbitraje internacional, comercial y de inversiones. La guía que hoy estaremos discutiendo se basa en una rigurosa encuesta que no sólo rastreó el crecimiento de las instituciones arbitrales en América Latina, sino que también identificó factores claves que son actualmente temas candentes en el arbitraje internacional. Estos incluyen el aumento de la designación de mujeres árbitros tanto en los tribunales como en las listas institucionales, la disponibilidad de árbitros de emergencia y el cálculo de honorarios, entre otros temas de gran interés para la comunidad arbitral. Daniel Ávila, asociado de Reed Smith y coautor de esta guía, fue de hecho que tuvo la iniciativa e idea de encontrar un espacio para enfocar la conversación en una de las conclusiones más importantes de la guía. Tendremos que buscar otros espacios para seguir comentando esta gran publicación, pero por ahora quisiera empezar preguntándole a Elina cuál fue la metodología que usaron para llegar a las conclusiones de esta guía. 

Elina: Muchas gracias, Isabella. Muchas gracias por la presentación. Excelente pronunciación de mi apellido. Tengo que aclarar que soy socia de Wagemann Arbitration una oficina boutique con sede en Santiago de Chile y bueno, respondiendo a tu pregunta, yo tengo el privilegio de dirigir ser Chair de la American Iniciative del ITA Institute for Transnational Arbitration y en el año dos mil once, la Iniciativa de las Américas de y ITA prepararon la primera versión de esta guía. Daniel Ávila tuvo la fantástica idea de acercarse al ITA y ofrecer el apoyo de Reed Smith y de bueno de él personalmente para hacer una versión actualizada. Y lo que hicimos con él fue, primero, hacer un levantamiento de las instituciones arbitrales existentes nuevas. Para eso consultamos en el ITAFOR, consultamos con nuestros delegados en distintos países delegados del ITA y una vez validadas las instituciones, las invitamos a participar de esta encuesta. Asimismo, actualizamos las preguntas con respecto a lo que fue el año dos mil once. Incluimos muchas preguntas nuevas y entre ellas las preguntas de género en el dos mil once no fue un tema tan relevante como lo es hoy. Y bueno, enviada la encuesta a las instituciones, se recibieron respuestas de un porcentaje significativo de las instituciones, lo que nos ha permitido elaborar esta guía como un informe final que va acompañada de gráficas de conclusiones. Así que invito a todo el mundo descargarla de la página web de ITA para poder conocer estas conclusiones generales y particulares sobre el estado del arbitraje institucional en América Latina. 

Isabella: Sí, de acuerdo. Creo que es una guía que vale la pena revisar porque tiene información actualizada de todo lo que está sucediendo en estas jurisdicciones y, de hecho, adentrándonos un poco al enfoque de diversidad de género. Ustedes resuelven la pregunta de qué porcentaje de la lista internacional son mujeres? La mayoría de las instituciones que respondieron a la encuesta de la Guía contestaron que en menos del veinticinco por ciento de sus listas nacionales e internacionales contienen árbitros mujeres. Y aunque las cifras siguen siendo bajas, el nombramiento global de mujeres es mucho mayor en comparación con décadas anteriores. Y esto hay que reconocerlo. En esta línea, la guía también destaca que frecuentemente el árbitro único o el presidente del tribunal es nombrado por las instituciones, lo que podría resultar en el esfuerzo institucional para aumentar el nombramiento de mujeres y que esta cifra suba. Quería preguntarte en este punto Elina, estás de acuerdo con el nombramiento de mujeres por las instituciones como un mecanismo para combatir la inequidad de género en el arbitraje internacional? 

Elina: De todas maneras, sí Isabella. Yo creo que en las instituciones recae la función de ir profesionalizando el arbitraje. Cierto, porque son se encuentran en la mejor posición para efectuar el nombramiento de los árbitros con conocimiento de la materia. Y en ese sentido tienen la misión, me atrevería, a decir, de aportar también a la diversidad en el arbitraje, promoviendo el nombramiento de las mujeres. 

Isabella: Gracias, Elina. Ahora, continuando con un poco el tema de la creación de igualdad de oportunidades, hay una tesis que dice que la promoción de la mujer en el arbitraje no parte del principio de pretender lograr el mismo número de árbitras y árbitros. Más bien busca crear igualdad de oportunidades para aquellas mujeres preparadas para desempeñarse en estos puestos. Elina, tú estás de acuerdo con esta premisa y si estás de acuerdo, qué herramientas podrían ser implementadas para crear un mayor acceso a estas oportunidades y que las mujeres lleguen a este puesto de árbitras? 

Elina: Muy buena la pregunta, Isabella. Muchas gracias. Bueno, la premisa en sí es bastante interesante si consideramos que las aulas universitarias hoy en día están pobladas por un cincuenta por ciento de hombres, cincuenta por ciento de mujeres, si consideramos que entre los asociados de los estudios norteamericanos, aproximadamente un cuarenta por ciento constituyen mujeres. Por qué no deberíamos tender hacia el número cercano, al igual de hombres y mujeres? Pero bueno, aceptando tu premisa como premisa correcta, es decir que no se busca lograr el mismo número de árbitras de árbitros, vamos a desarrollar bajo esta premisa, que es lo que se puede hacer desde mi perspectiva. La carrera habitual conducente a asumir el papel de árbitro ha sido lograr primero la posición de socia en un estudio jurídico litigante en arbitraje. Pero como sabemos, los porcentajes de mujeres que llegan a ser socias, incluso en los países llamémoslo desarrollados, no fuera de América Latina, son bajísimos. Según Legal 500, en el Reino Unido corresponde al dieciocho por ciento, en Alemania diez por ciento, en Estados Unidos Equity Partners mujeres son un veinte por ciento y no Equity Partners ascienden a treinta por ciento. Al mismo tiempo, hay muchas abogadas asociadas, directoras, ocasos todos estos diversos títulos que demuestran que son indicativas de la madurez de la profesional pero que la separan de ser socia. Y todas estas abogadas tienen la experiencia necesaria para desempeñarse como árbitras. Entonces lo que yo creo es que hay que hacer. Hay que desvincular la figura del árbitro, del árbitro, del rol de socia. Son habilidades no relacionadas de ninguna manera. Y de lo contrario, si los mantenemos, si las mantenemos vinculadas, las mujeres se ven doblemente castigadas. Por un lado, no llegan a ser socias y por otro lado, no llegan a ser árbitras. Y bueno para lograrlo yo creo que hay que promover esta idea tal como lo estamos haciendo ahora y más que nada, darle visibilidad a estas mujeres con talento y experiencia. Y para ello la teoría sociológica política acepta el uso temporal de las cuotas como algo muy establecido y creo debería implementarse también en el arbitraje. Personalmente, a mí no me ofendería ser nombrada como árbitro debido a que existe una cuota de participación femenina. Estaría agradecida que para cumplir con la cuota me elegirían a mí habiendo tantas otras candidatas. Igualmente tendría certeza que me nombran por mis cualidades y no por ser mujer. Ningún hombre asume que lo nombran por ser hombre y creo que la misma actitud corresponde que sea tomada por mujeres. 

Isabella: Muchísimas gracias por la respuesta, Elina. Creo que es muy interesante y es importante que todas las mujeres empecemos a oír este tipo de ideas desde ya, porque es la manera un poco de no castigarnos, sino darnos cuenta hacia dónde tenemos que ver y digamos, siguen un poco tu línea y los comentarios. Creo que ha quedado claro que la diversidad de género encapsula muchos más factores que simplemente el hecho de ser mujer o no. También se debe tener en cuenta la edad, la nacionalidad, entre otros factores. Y pongo un ejemplo, a veces hay mujeres muy capacitadas y también hombres que por la edad, de pronto encuentran una barrera en ser, digamos, en conseguir cierto tipo de reconocimientos opuestos en el campo del arbitraje, igualmente con la nacionalidad, con la diferencia de factores y de factores, de dónde vienen y de las oportunidades que han adquirido. Y en este punto, quería preguntarte cómo abordar estos factores en las iniciativas que ya existen para crear mayores oportunidades en el campo del arbitraje internacional. Crees que deberían ser abordados como tema de género y tema de edad aparte? O tratar de combinar un poco todos estos factores para crear iniciativas que aborden más las problemáticas? Cuál es tu perspectiva de cómo cobijar tantas cosas, pasando al mismo tiempo?  

Elina: Si desde mi perspectiva el grupo minoritario en el arbitraje son las mujeres, el grupo minoritario más importante son las mujeres. Si empezamos a considerar diversidad regional, por ejemplo, hay diversos grupos minoritarios, cierto. América Latina se ve menos, con excepción de Brasil, que es asna, se ve menos representada en el arbitraje internacional. Lo mismo se puede decir de Asia. Lo mismo se puede decir de África. Entonces hay un conjunto de ámbitos geográficos y ese conjunto no es homogéneo. Entonces crearon una iniciativa para promover este conjunto heterogéneo, cuyos elementos se encuentran en distintos en distintas etapas de desarrollo de arbitraje en distintas etapas de acumular la experiencia como comunidad arbitral. A mí me parece difícil. Ahora hay iniciativas puntuales muy importantes para acoger la diversidad regional, que pueden ser muy valiosas. Lo que yo creo que en América Latina tenemos que poca otra región tiene es la ventaja del uso común del idioma. Creo que deberíamos apuntar a crear una mayor movilidad de los árbitros dentro de América Latina. Habiéndose aquí la primera opción para un nombramiento fuera un candidato, una candidata de la región y una vez que logremos un pool de árbitros y árbitras latinoamericanos que se desempeñen con facilidad en el arbitraje internacional, ahí podríamos competir a nivel global. Pero en esta materia me parece menos factible la introducción de cuotas, por ejemplo, no, porque podríamos estar interfiriendo con requerimientos que plantea un caso arbitral en cuanto al idioma. En cuanto a la formación legal, todas estas situaciones que pueden ser fácilmente superadas cuando estamos mirando un universo de mujeres. 

Isabella: Entendido. Muchas gracias, Elina. Creo que hay tantas cosas que quisiera preguntarte sobre todo lo que acabas de decir. Lastimosamente no tenemos suficiente tiempo, pero creo que estos son el tipo de espacios que simplemente nos abren la puerta para seguir discutiendo este tema tan importante. Creo que mi última pregunta hacia ti, que también se la quiero hacer a Rebeca, es el valor agregado sobre la diversidad de género. Porque hay autores en el campo del arbitraje internacional que argumentan que no hay ningún consenso o estudio que demuestre que se mejore la calidad de los laudos o la eficiencia del arbitraje como proceso por tener árbitros, mujeres, entonces un poco. La tesis es como no importa si son mujeres, si son hombres, simplemente necesitamos un buen laudo. Por qué la necesidad de tener estos personajes como a manera de cuota? Para ti, Elina, cuál es el valor agregado que representa tener más mujeres, árbitros y representantes de parte en los casos de arbitraje internacional? 

Elina: Bueno, sería algo atrevido sostener que la incorporación de las mujeres mejora la calidad de laudos? No, tampoco somos casi iba a decir súper hombres, pero no somos superhéroes súper heroínas. Eso es para mí la principal ventaja central, ventaja y valor agregado es la atracción de talento que de lo contrario habría quedado invisibilidad invisibilizado debido a las restricciones del sistema que ya discutimos. Y es simplemente un sistema injusto de alguna manera, la que no permite surgir a las mujeres talentosas. Y es lo que las cuotas pretenden corregir. No mejorar los laudos, sino que abrirse a la entrada de más árbitras árbitros árbitras que están que se encuentran en condiciones para hacer buenos laudos. Cierto. Hay estudios que indican que las mujeres, por ejemplo, tienden a tener un mejor manejo en la interacción en las relaciones sociales y tienen una mayor capacidad para lograr beneficios sistémicos. Es decir, se en un pequeño punto cuando piensan que finalmente pueden obtener un logro sistémico mayor. Y lo anterior sin duda podría generar tribunales arbitrales más cohesionados. Deliberaciones más fluidas. Pero para mí todas esas ventajas son adornos nada agradables. Lo relevante es la atracción de talento que se está perdiendo. 

Isabella: Creo que en eso estamos todos completamente de acuerdo. Lo que mejora un proceso es tener más talento, descubrir nuevas caras que puedan aportar excelencia a estos procesos. Entonces creo que ahí se demuestra claramente cuál es el valor agregado sobre abrir las oportunidades a nuevas caras. Con esto creo que terminaríamos nuestra ronda de preguntas. Agradecemos nuevamente tu acompañamiento y todos los comentarios en esta sesión y esperamos que podamos vernos y seguir comentando estos temas pronto. Muchísimas gracias por el tiempo, Elina. 

Elina: Muchas gracias a ti, Isabella. 

Isabella: Ahora, continuando con nuestra conversación, quiero preguntarle a Rebeca sobre los actores involucrados en esta discusión. Y es comúnmente aceptado que la equidad de género en el arbitraje internacional es, en general, un tema que involucra a todos. Y en tu criterio, Rebeca, quiénes son los actores más determinantes para cerrar la brecha de equidad de género en el arbitraje internacional? 

Rebeca: Hola, Isabella. Antes que nada, me da un grato placer estar acá conversando contigo acerca de la diversidad de género en el arbitraje internacional. Y te agradezco mucho esa magnífica introducción y bueno, como bien has dicho con respecto a los actores más determinantes para cerrar la brecha de equidad de género en el arbitraje internacional, pues todos y todas somos actores determinantes a todos los niveles, somos responsables y jugamos un rol determinante en concientizar y cerrar esa brecha. Por ejemplo, yo soy una gran partidaria de listar mujeres en las listas de árbitros que se preparan para sugerirle a los clientes, lastimosamente a lo largo de mi trayectoria como abogada, pues la mayoría del tiempo no he tenido tanto éxito, ya sea por sesgo de parte del propio cliente o como me dijo algún socio alguna vez, en que esa persona pues no tenía gravitas o que bueno, la escuché hablando y habla muy bajo y claramente ese es un momento en donde es el abogado el que tiene quizás una gran responsabilidad en educar al cliente y viceversa en algunos casos para poder cerrar esa brecha claramente. Ninguna de las aseveraciones, pues, que he escuchado en el pasado, tienen algo que ver con el profesionalismo o preparación de estas mujeres. Y más que nada, esta es una tarea muy importante porque, por ejemplo, en el 2020, el Grupo de Trabajo Interinstitucional sobre la Diversidad de Género en los Nombramientos y Procedimientos Arbitrales publica un informe a través de la ICCA que documenta los avances hacia la consecución de una mayor diversidad de género entre los árbitros. Este informe fue actualizado recientemente, en el dos mil veintidós y este informe confirma en que creo lo que hemos venido hablando en este podcast de que ha habido mejoras en los nombramientos institucionales. Sin embargo, los nombramientos de por parte de las partes no han tenido una gran mejora. Las instituciones son en sí, posiblemente los defensores con la voz más alta de la diversidad en el arbitraje y quizás uno de los actores más eficaces. Creo que en este sentido también deberíamos hablar que los bufetes de abogados deben aumentar la visibilidad de sus abogadas invirtiendo en su formación, presentándola ante sus clientes. Esto que vayan a conferencias, participen en paneles. Los bufetes también deberían, pues mejorar. Y esto quizá sea parte de otro espacio. La retención y promoción del talento femenino es imprescindible tener mujeres en posiciones de liderazgo en los bufetes, tomando decisiones importantes y de hecho, hablando de los actores determinantes, creo es importante mencionar una anécdota que tengo de una buena amiga mía, árbitro, que era parte de un panel de árbitros donde ella era la única mujer, no solamente de ese panel de árbitros, sino también de los abogados de parte. Y ella consideró que los abogados la habían designado como una muestra de diversidad, dada la notable ausencia de mujeres estos participantes en ese arbitraje. Y basándose en eso, el tribunal consideró si se debía imponer costas a las partes por la falta de diversidad en sus filas. Entonces eso me pareció bastante interesante y si me parece de repente, que sea no como un tema o un punto importante que discutir. O quizás también tener en cuenta a la hora de que el tribunal los está viendo a los no, a las, a las partes, a los abogados de parte, quiénes son las personas de cada lado que tienen un rol importante. Y en ese sentido, me parece que los hombres también tienen un papel que desempeñar, sobre todo porque constituyen la mayor proporción de los altos cargos de en la industria y con ese poder tienen la gran responsabilidad de hacer valer el cambio a favor de grupos diversos y de la equidad de género. 

Isabella: Muchísimas gracias Rebeca por esa cantidad no sólo de consejos prácticos, sino también reflexiones que se pueden aplicar en el día a día desde diversas perspectivas, no sólo desde el cliente, sino también desde el panel arbitral hasta los mismos abogados que son los que nominan a su y le presentan a su cliente los árbitros muy interesantes todos estos tips, como los veo yo y como le decía a Elina uno podría quedarse hablando de todo esto por horas, pero en vista del tiempo quisiera pasar a la segunda pregunta. Y es que en este momento hay varias iniciativas que promueven esta cerrar esta brecha de género y que si las sabes Rebeca, tu opinión frente al impacto que estas iniciativas como ArbitralWomen y Equal Representation in Arbitration Pledge, entre otras, tienen frente a la causa de la que estamos hablando. Consideras que son efectivas para fomentar la que te genio el sector? Piensas que están, digamos, moviéndose hacia el lado que todos esperamos o deberían tener algún twist, cuáles son tus opiniones? Y, sobre todo, porque estás internamente involucrada. Entonces nos interesa mucho saber cómo funciona y cuáles son los planes a futuro. 

Rebeca: No, claro que sí. Isabella, esto mira, en efecto, yo precisamente por formar parte de la junta directiva de ArbitralWomen. No tengo duda que organizaciones como ArbitralWomen, iniciativas como el ER Pledge, entre otros, fomentan conversaciones y concienciación en torno a la actividad de género y al concepto de diversidad en términos más amplios. Por ejemplo, ArbitralWomen, este año cumple treinta años. Es más, hace dos días cumplió esos treinta años y en esos treinta años nuestra membresía ha crecido a más de mil miembros en más de cuarenta países. Además de crear redes y actividades sociales, ArbitralWomen se ha encargado de mantener un directorio de mujeres árbitros, patrocinar a mujeres estudiantes de derecho en competencias de tribunales simulados y trabajar con organizaciones sin ánimo de lucro para identificar a estudiantes prometedoras para becas y pasantías. Y lo cierto es que esta clase de organizaciones e iniciativas que promueven la equidad de género y diversidad en un término más amplio tienen que existir. Pero como me preguntabas acerca de los planes a futuros y voy a usar las palabras de Louise Barrington, que es cofundadora de ArbitralWomen junto con Mireze Philippe es que ellas esperan que en los próximos treinta años haya tal conciencia e inclusión tanto de mujeres como de otros grupos diversos a todos los niveles y esferas del arbitraje internacional. Que ArbitralWomen y otras iniciativas similares no tengan ya razón de existir. Entonces para mí eso me parece un gol, una meta que alcanzar en los próximos treinta años, en los que todos los que estamos involucrados en estas iniciativas trabajamos conjuntamente y al día a día para que eso pueda suceder. O sea, me imagino un mundo en donde no tengamos que tener ArbitralWomen porque es tan normal poder, por ejemplo, esto elegir a una mujer árbitro o tener más mujeres en las filas de los abogados de parte y demás. Y eso me pareció unas palabras con mucho peso y una meta quizás y probablemente alcanzable, que lo Barrington mencionó a base de los treinta años que estamos cumpliendo. Y es que, ArbitralWomen mientras tanto, verdad? Mientras tanto, seguiremos en ArbitralWomen y en otras organizaciones, seguiremos con nuestro arduo trabajo de ofrecer una plataforma a las mujeres a grupos diversos en donde puedan alzar su voz sin sentirse aislados. Hay tantas otras iniciativas como mencionabas que siguen avanzando la equidad de género en nuestra industria, que me parece que necesitaremos otro podcast u otro espacio para alistar cada una de ellas. Y el arduo y magnífico trabajo que siguen realizando respecto a la diversidad tenemos REAL que es el Racial Equality for Arbitration Lawyers lo con un enfoque en la diversidad racial de los miembros de la comunidad ArbitralWomen con un enfoque en la promoción de la mujer profesional del arbitraje y en la equidad de género. También tenemos a RAI Rising Arbitrators Initiative, que está enfocada en árbitros jóvenes o en sus primeras elecciones como árbitro, el ERA Pledge, enfocada en la equidad de género en las elecciones de árbitros. El ERE Pledge con un enfoque en la equidad de género en la selección de expertos. Y también tenemos Mute Off Thursdays, que es una plataforma en línea creada o que nació durante la pandemia por cuatro miembros de ArbitralWomen, en donde mujeres en el arbitraje con más de siete años de experiencia se reúnen todos los jueves por treinta minutos para llevar a cabo un intercambio de conocimiento e ideas. Recientemente, como habrás escuchado, Mute Off publicó el compendio de unicornios es una guía mundial de mujeres árbitros. Y este compendio pretende disipar ese mito de que existe un déficit de oferta de mujeres cualificadas para ejercer como árbitros. Y seguro habrás visto a ciertas mujeres que llevamos un pin de un unicornio. Y es precisamente por la mención que hizo alguna vez un árbitro de que buscar a una mujer cualificada árbitro en el arbitraje internacional era como buscar a un unicornio. Entonces, esto existen esos pins. Si. Si consigo más, pues te mando unos o podemos contactar directamente a Lucy Greenwood, que es la que los reparte. Y esto con respecto a todas estas iniciativas. Isabella, yo la verdad, para mí es un verdadero orgullo que Reed Smith es signatario de muchas de estas iniciativas y sus abogados, muchos de ellos son miembros en casi todas de ellas. 

Isabella: Bueno, estaré esperando este pin con ansias.  

Rebeca: Total. 

Isabella: Creo que bueno, la verdad es que soy testigo también del impacto que este tipo de iniciativas generan en el ámbito del arbitraje internacional y cómo impactan individualmente, pero también a manera de colectividad. Entonces también comparto el orgullo de que Reed Smith sea signatario de varias de estas iniciativas y ojalá esperemos deseando que se acaben estos grupos pronto para que no tengan mucho muchas causas. Y Rebeca también quería hacerte una pregunta que le hice a Elina. Y es sobre la tesis que algunos autores en el campo argumentan sobre el hecho de que no hay un consenso o estudio validado que demuestre que se mejore la calidad de los laudos o la eficiencia del arbitraje por tener árbitros. Mujeres para ti. Cuál es el valor agregado que representa tener más mujeres, árbitros y representantes de parte en los casos de arbitraje internacional? 

Rebeca: Bueno, antes que nada, yo sí pienso que el valor agregado es que le da más legitimidad al proceso. Creo que tener la perspectiva no solamente de una mujer, sino de un árbitro, no de grupos diversos. Esto ofrece una perspectiva distinta, quizás a la que no hemos estado, pues anuales o no lo hemos afrontado porque no lo hemos tenido. Yo, por ejemplo, he tenido la dicha de tener al menos una mujer en varios de los paneles, no de los que yo estoy presentando mi caso. Y si bien, pues todos los árbitros siempre han estado a un nivel de profesionalismo, no perfecto. Sí he notado, por ejemplo, que las mujeres tienden a ir un poco más al detalle a ciertas cosas que quizás en otras ocasiones podríamos pasarle por encima, por decirlo así. Y creo que eso tiene que ver más también por la perspectiva que traemos al caso. Entonces, si bien no hay un consenso, creo que tener esa perspectiva agregada o ese potencial de porque estamos hablando no solamente de género, sino esa interseccionalidad de género cultural, raza, esto, lenguaje, cultura o no de venimos de otros países y eso todo es un valor agregado que enriquece y le da una legitimidad al proceso que creo que deberíamos seguir desarrollando y aumentando. 

Isabella: Totalmente de acuerdo y muchísimas gracias Rebeca, por esta información, por tus respuestas, por tus experiencias. Lo apreciamos muchísimo y esperamos poder seguir siendo parte de estos proyectos de seguir comentándolo y spread the word en la comunidad internacional de estas iniciativas tan importantes. De nuevo. Muchas gracias por estar acá y esperamos verte pronto. 

Rebeca: Gracias, Isabella. Un placer.

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.

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Transcript is auto-generated.

In this “Spotlight on…” episode, host Gautam Bhattacharyya welcomes arbitrator and SVAMC AI Task Force chair Benjamin Malek (FCIARB) to discuss what led him to a career in international arbitration. The pair discuss the challenges and opportunities presented by new technologies like AI, and how to maintain and improve the effectiveness of arbitration in an ever-changing legal landscape.----more----

Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. With that, let's get started.

Gautam: Hello everyone and welcome back to our Arbitral Insights podcast series, and thank you for joining us. I am delighted to have with us as our guest today,  Ben Malek. Uh Hello, Ben.

Ben: Hi Gautam, thank you for having me.

Gautam: It's great to have you with us. Now, I'm gonna introduce Ben, but I'm gonna preface this by saying I love to see new arbitrator talent emerge and I'm unashamed about that. I love to see it. And Ben epitomizes this new number of arbitrators that I just love to see. Ben has got a very interesting background. Uh he's based in New York, but he – I'm gonna share some interesting stuff about him with you all. He's obviously a practitioner of arbitration. He's also an arbitrator and he has great experience of being in private practice and also working for institutions who deal with arbitration. And we'll come to that in the course of our discussion. He also speaks an incredible number of languages, which would, which certainly is something worth noting. So, so obviously, not only apart from English, but he also speaks fluent German, Romanian, Spanish and French, and he can also turn his hand very ably to Italian, Hebrew, Mandarin and Korean. And I'm just in awe of that, Ben.

But so obviously, you can see we're talking uh to, to someone who's truly international. We'll talk a little bit about what you do Ben in the course of this podcast but for our listeners, Ben is with T.H.E Chambers in New York. And as I said, prior to his current role, he has worked in private practice at some major law firms and also with arbitral institutions. So, on that note, a huge welcome again to you, Ben and I'm much looking forward to our discussion. So let me ask you the first thing a little bit about your background because you, you do have a very interesting background just based purely on your geographic origins, your languages and how the world has just seen so much of you. But could you just tell us a little bit about your background and how you found the law and arbitration or conversely how law and arbitration found you.

Ben: Thank you so much Gautam for inviting me such an honor to be on your podcast. I always look forward to the new episodes you have so it's uh it's truly a pleasure. Thank you. So I grew up in Germany. I was born and raised in Germany to Romanian parents and my maternal grandparents wanted to talk German to us because that's what first generation immigrants do. However, they spoke a very broken German because they're German just wasn't that good. So my mother had the idea of them talking to me in Romanian, which was their maternal language. And this way, I would have two languages once I hit kindergarten, which is exactly what happened. I talked Romanian at home until I started kindergarten, which is where I learned German.

So that was the beginning of my duality, I guess. Later on my parents decided that an international school would be best for my brother and I, I have a twin brother by the way. So we went to an international school where languages was really emphasized. I was taught everything in English. English was my maternal language, German was my first foreign language. And that's when I started to really learn my other languages. French became my second foreign language, Spanish became my third foreign language. So by the time I graduated high school I was fluent in five languages. So that was uh extremely helpful at that time, and, uh, that's when I knew that I needed to do something with languages. Unfortunately, and just to give a little more background, I decided to pursue dentistry. I'm not sure if you knew that Gautam. 

Gautam: No, I didn't know this. You're a man of many, many hidden talents. Ben, I had no idea. I I know now.

Ben: So I went to dental school and because, because I grew up in, in Germany to Romanian parents, I always wanted to, to understand my origins and see where I'm from. So I went and studied uh dentistry in Romania. So while in Romania, I graduated dentistry, I came back to Germany and actually started practicing dentistry. At which point I realized that that might really not be the best career. And I'll explain why.

I loved the attention to detail. I loved the artistry of it. But the one thing that I really couldn't deal with was talking to the walls. And what do we, what do I mean by that? When patients sit in the chair before you and you talk and their mouth is open, they cannot respond. And I never realized how much that would impact me psychologically. I felt like I was in isolation, I was talking to them and I talked to them in so many languages, but nothing was coming back. So at that point, I realized with my first year of practice that even though I like what I do, I don't think I could do that for the rest of my life. So I decided to go back and study law. And during my last year of law school, I got a job at BDO in Romania. And because of my languages, I was on-boarded on an arbitration which was held in English with a German party and a French party. And because they had somebody that spoke German and French, they decided to save some costs and have me translate. So that was my introduction to arbitration. And I thought it was wonderful. It was absolutely delightful, especially in a country where the judicial system is sometimes questionable in the sense that you may win for your clients, but you win such a small insignificant amount that you can't really consider it to be a win. I realized that arbitration is a true fairness out there and it is accessible.

So it was that moment during that arbitration that I realized and decided to pursue a master's in arbitration, which I ultimately did. I went to the University of Miami where I pursued my LLM. I had the privilege to study under Jan Paulsson, Marike Paulsson, Carolyn Lamm, Jonathan Hamilton. And I really did have the privilege to study under Martin Hunter who has passed away just a few years ago. So it was, it was an amazing masters and that really gave me the basis to start my career in arbitration.

Gautam: Well, now that's an incredible journey and a truly uh a diverse background, a truly a diverse professional background you've had and you know, thank you for sharing those great thoughts. Now figures while you're in international arbitration, because you truly are international Ben, in the truest sense of the word.

Now you've mentioned some amazing teachers that you had in the law who are truly not just first class, they're world class in terms of names. But um I'm most interested to hear from our guests as to who they would say have been their biggest mentors and inspirations in their career. So if you were to look at your legal career, and it's not often that I do a podcast with someone who's a qualified dentist as well as a qualified lawyer. But there's always a first for these things. But in your career as a lawyer, I wonder if you could share with us some of those names who have been your great mentors and inspirations.

Ben: Absolutely. I think all of us owe our entry especially in arbitration to someone as the saying goes, we we need somebody to open the door, we gotta walk through it ourselves, but somebody is always there to open the door. For me I really had, John Fellas was an amazing mentor. I got to know John during my masters and we've kept in touch ever since. What struck me about John was his humbleness and his absolutely striking kindness. I mean, I was a mere student who just got my feet wet and he always made the time, always respected my time, always trying to see how and where he can help me or brainstorm what to do or where to do. It was a true mentorship. And I value that, especially after so many years, I, I wouldn't be here without him.

One more mentor that I can think of is Crenguța Leaua. She's um with LDDP in Romania. Over the years, we've got to know each other. She's just such an amazing practitioner who has truly shown me what there is to do and has helped me or help me guide my way into arbitration. So uh without those two, I wouldn't be where I am. But I would also say I really, I consider that every, every person I worked for in the past, every boss I had potentially got me into where I am.

So that being said when I worked at the American Arbitration Association or the ICDR to be more, more precise, Tom Ventrone was an amazing mentor. I mean, I learned so much from that and it was interesting because I only got to know him once I was at the ICDR. I did, I quite frankly and uh I don't know if I should say this out loud, but I've never heard of him before. Um However, when I was there, I realized that I don't think the ICDR would be where it is without Tom Ventrone and his team. So that was absolutely outstanding.

Gautam: Thank you very much. And you know, some really great names there, Ben that you've given, who've been your real guiding lights in your career so far and you, you're very fortunate to have had all of those people. Now, you've alluded to it in your answer that you just gave and I mentioned it in the introduction that you've worked at major law firms and you've worked for arbitral institutions. I wonder if you could share with us a few things that you've learned by having had the benefit of working on both sides of the fence, so to speak.

Ben: I would say at first when I started off at institutions and in all disclosure, I didn't start my career at the American Arbitration Association, I actually started at CPR Institute in New York. I filled in this case manager after which shortly after I got the opportunity at the ICDR. The one thing I learned was really what an impact an institution can make and what a driving force it is in arbitration. Of course, I've learned and I've been part of adhoc arbitrations and that's when you really start to appreciate institutions and what they can do. So I really do value institutions for what they are. I believe the work is truly in vain. And during my time at the ICDR, I mean, it was high volume, in the sense that we administered many cases. And when COVID hit, it felt like those cases doubled even though they didn't. It was just that the traffic of email because nobody had any, any place to be. There was no traveling, there were no dinners, there were no vacations. Everybody was on their email all the time. But it was uh truly valuable.

You learn how to manage your time, you learn how to manage other people's time and you learn how to truly value time and deadlines and how to set them fairly. During my time at the American Arbitration Association, I was truly privileged to be part of what they call IARC which on the international part is the International Administrative Review Committee. Where different challenges are being discussed and decided upon. So having been part of that and having seen many cases come in and out and the decisions thereof have really helped me to make better decisions as counsel. Once I, I left the institution.

Gautam: I think that amazing kaleidoscope of experience that you had in private practice and with institutions brings us nicely to the next question I wanted to ask you. And this and again, I'll preface it with, again saying how much I love to see new arbitrator talent coming through. I love to see it because we need new talent, fresh blood coming in and you are certainly one of that group. And so I was mentioning that you are with T.H.E Chambers in New York. And I'd love you to tell us a little bit about the work of T.H.E Chambers where you are an arbitrator and including, first of all, if you wouldn't mind what T.H.E stands for a Ben.

Ben: Thank you, Gautam. Absolutely. So, as a young arbitrator, I think it's interesting to see that there are not many out there and if they are, it is always combined with some sort of additional workload, whether that is tribunal secretary or they still work as an associate somewhere else or consultant. It, it it is self explanatory why that happens. Uh But I am privileged, I believe to be part of a small group of young arbitrators. And I, I think it's, it's highly important to understand that even young arbitrators do have a specific know-how that we would not have had 20-25 years ago whenever I'm approached or I'm asked about my expertise, I do unfortunately get the answer oftentimes that people didn't realize that a young practitioner could have so much experience or could have the pertinent know-how. And I think that's where arbitration really expanded and advanced in the last decade or two.

We have master degrees at, at so many universities throughout the world. We have so many courses and we have so many practitioners willing to talk and mentor people that it is truly possible at a younger age to become an arbitrator.

Gautam: I completely agree and if I'm not mistaken, the, you know, the, T.H.E Chambers stands for Tribunals, Hearings and Enforcement, is that correct Ben?

Ben: That is correct. Absolutely. Yes, thank you. So, when I started off sitting as an arbitrator, I was approached and, and I happily work with Arbitra International out of London as a transitional member as they call it. And when thinking about it, I had two options. I could either say this is Benjamin Malek arbitration or I could start something bigger. And that was my goal.

So when starting T.H.E Chambers, which as you said, stands for Tribal Hearings and Enforcements, the big challenge was what I call it. And despite the fact that T.H.E, it, it looks very nice together as ‘the’, um it does stand for tribunal hearings and enforcements. And that is because I believe that those are the core points that any practitioner will always look for. Uh you need to have a tribunal for an arbitration, you need to have a hearing, any sort of hearing un unless it's a paper arbitration. Um And then the, either the arbitrator or the parties waive the hearing and you gotta make sure that any award is enforceable. So from my council of work that I started off with at the beginning of T.H.E Chambers, that was my expertise, the enforcement part of it. Uh that was also one of the most important aspects that I dealt with while at the ICDR when a case comes in that was the first question. How does the case look and will the award be enforceable? So that is one thing that I definitely learned at the institutions and that I carried with me to always look at the arbitration from the end rather than from the beginning, which is the enforcement stage. T.H.E Chambers -  that's what it stands for. Currently it is set up to on board more younger arbitrators worldwide because of COVID and then changes in COVID, we haven't gotten there yet but I hope we'll get there very soon.

Gautam: I've got no doubt you will. And you know, and as the saying goes, if anyone's good enough, they're old enough. And there's no doubt that you and the team bring a lot of great energy and insight into arbitration and it's certainly not something that should be homogenous. So it's fantastic to know that you can bring all your talents to bear. I want to turn next to another aspect of what you do because I know that you are a member of the Silicon Valley Arbitration and Mediation Center and particularly its Artificial Intelligence task force. Now, one of the things that all of us will be very well aware of is that artificial intelligence, AI, is an incredibly happening concept. It's developing and it'll develop more and more and it has its role and will have its role in arbitration. I know that you've been part of the team that's been looking at guidelines for the use of artificial intelligence in international arbitration. And I wonder if you could just share some of your thoughts as to what the potential usage of artificial intelligence might be in international arbitration and some of the risks and issues that we should be aware of.

Ben: Yes, thank you. So I have been a part of the Silicon Valley Arbitration Mediation Center for quite some time and um when the New York case versus Avianca came out where the claimants council used ChatGPT to come up with cases and, and I use that word deliberately, ‘come up’ with cases to use against Avianca. It turned out that all of those were in fact made up by ChatGPT as uh what we would call hallucinations. The judge dismissed the case and uh actually sanctioned the attorneys. To that point, I realized that it is only a matter of time until this issue flows into arbitration, especially arbitration. We work in so many jurisdictions with so many different parties.

And specifically, since COVID, most arbitrations have been online, some have stayed online, some still have a hearing component in person, but most of it is online. And the big question was, do we need guidelines for the use of artificial intelligence in arbitration? So I had discussed that with the leadership at the Silicon Valley Arbitration Mediation Center and they gave me carte blanche to see what we can come up with so I was privileged to have a team of experts help me draft the guidelines for the use of  AI in arbitration. My team was composed of Elizabeth Chan in Hong Kong, Orlando Cabrera in Mexico, Sofia Klot in New York, Dmitri Evseev in London, Marta Garcia Bel, which now is in New York, Soham Panchamiya and Duncan Pickard in New York. I was truly blessed, I would say to have these colleagues. It became a true adventure that we all went on when we started discovering what AI could potentially do and what could potentially be prevented. So we took around nine months to draft guidelines. We had no timeline, but we did come up with what I would say good guidelines or a good basis of guidelines in October, we have put it out for the public to comment on. Uh the commenting period is still open until December and institutions can comment until February. And the goal is not to come up with guidelines that people can use, but to get a full consensus of the arbitration community on how they would like to use these guidelines and what they believe is relevant. If something is not relevant, then there's no reason for us to have it in there. So that was the whole idea behind it.

The other aspect we were looking at was when it came to cybersecurity, each institution came up with their own guidelines and quite frankly, they use different words, but they're saying the same thing. And we are hoping to avoid having several guidelines on AI and to comprise it all into one. I think it's gonna be a very difficult task. I'm not sure we will succeed, but we are giving all institutions the opportunity to give their input or it submits their commentary to the guidelines so that every practitioner could look into the commentary for the respective institution when the case goes to arbitration. We were looking at several aspects regarding the use of artificial intelligence in arbitration.

Two main aspects are disclosure and confidentiality. With regards to disclosure, we actually have an open option for the community to vote on. And that is whether a two prong test should be used to decide whether a party or the arbitrator should disclose the use of artificial intelligence or whether it should always be up to the parties to decide or to as the tribunal for opposing party to disclose the use of artificial intelligence. We weren't sure internally, we debated heavily and we came to the conclusion to leave that question up for the public to decide on. Um it did come back or as of now, the results are interesting, which is that in Europe, there is a more libertarian approach. Whereas uh the US and some common law jurisdictions voted for a two prong test, which I believe to be quite interesting, uh quite frankly. Um if this continues to be open ended, we might leave it up to the parties to decide which option they would ever put in. But ultimately, the goal is to draw awareness of the use of AI to let parties and arbitrators as well as council understand that artificial intelligence is not open ended. That if it's used outside a closed circuit information can be leaked or can be disclosed one way or another and to just draw attention to the fact that A I can only be used to disclose information, but also to create other sorts of the information that would otherwise not be there. Whether that is good or bad will be up to the parties to decide, but it is important to understand what AI can do and what the consequences are.

Gautam: I agree with you and it's something that's gonna develop and develop. There's no doubt about that and we've not seen the last of it. I mean, it's gonna be happening for sure. And we just have to see what does transpire, but look, thank you for your great work on everything you're doing. You're not just, you know, doing arbitrations, you're doing thought leadership, you're driving all of these things and it's really great. And uh I'm just, you know, and I look forward to talking to you more about these things as these things progress. Now with these podcasts, we, we always end our podcast with a little bit of lighthearted conversation because I think our listeners will have got a really good handle on your incredible talent in the course of this podcast, your thoughtfulness and your experience. What I want them to also get a feel of is some of the more fun side of things.

Now, I know Ben that you are a very proud daddy to a couple of daughters, one of whom is really a newborn. And uh, and I've, and I'm just so ecstatic for you and Rebeca on your two daughters. But let me ask you this when you do have some spare time from not being a, a very busy daddy as well as a very busy arbitrator. What sort of music do you particularly enjoy listening to? Have you got any favorite bands or groups or singers or even a favorite album that you love to play?

Ben: Regarding music that's an interesting topic. Before I went on my dentistry career I actually worked in music management.

Gautam: you are so multitalented. It's unbelievable. Go on. Sorry. I just could not resist saying that.

Ben: Yeah. No, thank you. It's uh I, I just like life. I like life. Life is important. It's what drives us. I will say this and, and you know, thank you for the question. But we all live to work, but we also work to primarily live. And I think it's really important to, to, to know that I always believe that one of the most important things in life is to live and to know how to live. So, uh I did get into music management very early in my life. We were host to several big names, but to answer your question, my favorite music, as I always said is good music. I especially nowadays where the charts are filled with explicit lyrics. I actually like to go back to the Beatles. The Beatles are one of the foundations I believe of modern music. Now, given the fact that a new song was actually just released with the help of AI, I think that it's, it's worth to go back and, um, and really understand the changes that as Sir Paul McCartney, um and his colleagues have made. Yeah, I would definitely call The Beatles my favorite music.

Gautam: Oh, fantastic. Well, it's, you know, that's a great choice. And, uh, you know, again, as a first, I've never done a podcast with someone who worked in music management, then who, who became a dentist and then became a lawyer and who can speak about 10 languages. So this is a complete first for me. So let me just ask you one last question in this podcast. So, you know, you are a very international person and we ascertain that just from speaking to you in the course of this podcast and you've no doubt traveled very widely because you've worked around the world in many places. Is there one place apart from where you grew up, okay, so excluding that, is there one place in the world - and excluding New York where you live - ok, Is there one place that you just love traveling to?

Ben: Oh. That's a difficult question. I would have to say, I've always enjoyed traveling to London. My brother is actually a physicist and he did his PhD in Cambridge. I thought those were the most fun trips I've ever had. To fly to London Cambridge is, is amazing. Uh Whoever hasn't been uh it is really missing out. London is just stunning. I mean, the amount of history and just the culture and the multiculture you have. It's, it's just, it's great. Um I guess uh deep down I am a European so London is always there. Paris is absolutely yeah, romantic. I mean, I am married with two kids so Paris is always, it is always a good idea.

Gautam: Yes.

Ben: Yeah. The only thing I would add is I love, I would love to see more of the world. I do want to travel and see places. I I've never been, I haven't been to Australia yet, but in general, I would love to go see, I hope to go to Hong Kong maybe during ICA, maybe not, but just to see Hong Kong and see uh see more than I have seen yet.

Gautam: Fantastic. Well, look, Ben. Thank you. It's been an absolute delight to speak to you in this podcast. Thank you for being such a superb guest and for sharing all of your stories and your background, your thoughts. And uh I look forward to seeing you very soon. You know, I hope you'll because we're recording this podcast on a Friday. So I hope that you will have a great weekend and I look forward to seeing you in person soon. Thank you.

Ben: Thank you so much Gautam, Likewise. And if I may just end on one note, I do wanna thank my wife. I don't think I would be the person I am without her. And she inspires me to be a better person every day.

Gautam: You know that I, I think that's so fitting Ben. And I'm gonna say this in response, I'm going to say two quick things in response to that. One, you're absolutely correct because I have the great honor and privilege of knowing Rebeca. And I know that she's a wonderful, wonderful lady and you are indeed very lucky to have her. And I also will say the second thing I will say is that many years ago, a judge got sworn in as a Supreme court judge here and one of the former Supreme court judges who was giving a speech when he became a judge said that behind every successful man, there's a surprised woman and Rebeca shouldn't be surprised at how successful you've been. But you know, you are very fortunate to have her. So thank you for mentioning her.

Ben: Thank you. And thank you for having me, Gautam. It was an absolute pleasure looking forward to meeting you in person.

Gautam: Looking forward to that.

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome, any views, opinions or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

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Transcript is auto-generated.

In the latest episode of our Greener Arbitrations podcast series, Alison Eslick and Vanessa Thieffry moderate a spirited debate between Michelle Nelson (Dubai) and Clément Fouchard (Paris) as they explore the pros and cons of electronic signatures and notification of awards, including discussion on recognition and enforcement, cost savings, technology challenges, convenience, security risks and resistance to change.

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Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers.

Welcome to our Greener Arbitrations podcast miniseries where Reed Smith's International Arbitration lawyers will be exploring the legal and technical issues involved in reducing the environmental footprint of arbitrations. I'm Alison Eslick, an International Arbitration lawyer at Reed Smith's Dubai office and I am Vanessa Thieffry, an International Arbitration lawyer at Reed Smith's Paris office. In these episodes, we will hear from leading arbitration practitioners and external speakers and discuss insights, news and trends relevant to greening arbitration and the challenges that are entailed. We hope you enjoy this episode.

Vanessa: Welcome back to another exciting episode of Reed Smith's Arbitral Insights. I am Vanessa Thieffry and together with Alison Eslick, we are delighted to host the sixth and final episode of our Greener Arbitrations miniseries in which lawyers of Reed Smith debate, how to reduce the environmental footprint of arbitrations. In 2022 Reed Smith launched an initiative to reduce the environmental footprint of our arbitrations. We quickly identified the need to raise awareness both internally and externally and organizing a podcast miniseries on greener arbitrations appeared as an obvious tool to do that. In the five first episodes, we addressed arbitration agreements and whether they should include sustainability measures, the campaign for greener arbitrations model procedural order and whether it was unavoidable. The topic of hard copied submissions in which we wondered if they were a thing of the past witness and expert preparation and whether video conferencing can match in person meetings and in person hearings and whether they are still worthwhile. If you haven't listened to them yet, they are available on Reed Smith's podcast channel, Arbitral Insights.

Alison: Thank you, Vanessa. Now, in this episode, we focus on the entire points of going to arbitration and that is of course obtaining an enforceable award. So recently we see more and more institutions notifying awards by email and arbitrators signing awards electronically. Now this may well be greener, but when it comes to something as important as the final award, is green always better? So that is the question that our debaters will tackle today. I do have a short disclaimer as we always do with these debates, our debaters have been assigned the positions that they are advocating and this is so they can fully advocate for or against the proposition. The debate is of course role playing and none of the views expressed during the debates should be attributed to Reed Smith, the debaters themselves or of course any of our clients. So joining us today for this challenging topic, uh Reed Smith partners Michelle Nelson and Clément Fouchard who will present their primary positions and then each will have a chance for rebuttal.

Vanessa: Thanks Alison. Let's see what our first speaker has to say. Clément Fouchard is up. Clément is a partner in Reed Smith's Paris office in the Energy and Natural Resources Group, focusing on international commercial and investment arbitration. He has over 16 years experience advising on major litigation and arbitration proceedings in particular in complex disputes in construction, energy and infrastructure, mining defense and distribution sectors. As well as considerable experience with joint ventures, imposed acquisition disputes. In addition to acting as counsel Clément acts as an arbitrator in domestic and international arbitration. Clément, the floor is yours.

Clément: Thank you, Vanessa and Alison. I'm very happy to be with you today and to argue in favor of green arbitration, electronic signature and notification of rewards. Is green always better? So yes, green, that is the use of electronic signature and electronic notification of rewards is always better. And I will explain why. First a definition, an electronic award or e-award is an arbitral award that is signed digitally by the arbitral tribunal and emailed to the parties directly or if an institution is involved for transmission to the parties by the institution.

First, I will start by saying that the appeal and desirability of electronic awards cannot be denied. In a survey published last year in the Journal of International Arbitration, questions were asked to leading arbitration institutions regarding the use of and practice of electronic awards. The participants overwhelmingly agreed that electronic awards are faster, 95% of the response. Cheaper, 85% and better for the environment, 80%. So let's look at those three criterias. First of all speed, while it is true that in some jurisdictions, it may take time to obtain a detailed signature for the first time. It cannot be denied that an award can be signed by the three arbitrators and sent to the parties by email in a manner of minutes. The same cannot obviously be said for hard copies awards that need to be printed out, circulated among tribunal members for signature and hard copy original notified by courier service.

As to cost, now again, there is little doubt that an electronic awards are most certainly cheaper since they can often be prepared at no cost at all given that one, e-signature software are often for free and two, the sending being done by email, there is no additional cost and this is to be compared with courier service costs for all the back and forth required to have the award being signed by all members of the tribunal and then harm to the environment when electronic awards save paper because they do not need to be printed. This is abuse and reduce the emission of greenhouse gasses because they do not require physical transportation. Of course, electronic rewards are not entirely without carbon footprint, either data storage and related energy consumption have a certain, albeit, I submit a very small impact on the environment, however, the data storage needs of a paper award are in practice greater than those of electronic award. As to the COVID-19 crisis, put the world on hold. The legal community, and international arbitration in particular had to adapt and they actually adapt in a new way of working where online meetings and online hearings, it became the norm.

So looking at e-signature of arbitral awards, there is clearly a growing trend amongst the major arbitration legal system, the vast majority of arbitration laws and institutional rules require the award to be in writing and to be signed. These requirements have primarily evidentiary functions and they have therefore little to do with the written text in digital or tangible formats. And this is the same situation regarding e-signature awards which will depend upon the electronic signature law, which in most cases would in principle allow the e-signature of arbitral awards. The New York Convention does not prohibit the electronic signature of awards and therefore most reductions should permit the arbitral award to be signed with any signature of awards. The issue of e-signature should be assessed, therefore, as the applicable at the applicable law level in this respect, we note that there is a growing number of jurisdictions allowing the signature of arbitral awards electronically. Looking first at France, Article 1366 of the French civil code provides that an electronic document has the same evidential value as a paper document provided that the person from whom it originates can be duly identified and that it is drawn up and stored in conditions that guarantee its integrity. So as we can see, the focus is made on the originality and the integrity of the electronic documents. Once this requirement is satisfied, French law grants the electronic document the same evidential value than a paper document. The legal framework dealing with the authentication of e-signatories has been based in France on the requirements of the EU regulation which deals with electronic identification and trust services for electronic transactions in the internal market. So we have actually a legal framework in place and I could continue with the United States with the Uniform Act of 2000 which requires that an award must be signed or otherwise authenticated by an arbitrator. An arbitrator can therefore sign an award with an electronic signature. In the UK, the draft reform of the English Arbitration act explicitly unfazed that there was no need for an explicit reference to electronic signature and notification of words as these are already authorized and I can continue on and on.

As to e-notification, the arbitral award uh is also on the rise. Taking again the example of France Article 1519 paragraph three of the French Code of Civil Procedure states that notification of international arbitral awards shall be made by service,  meaning by bailiff, unless the parties agree otherwise. This means that the parties can agree to another means of notification such as in the context of ICC arbitration, the electronic notification of awards by ICC Secretariat. So in conclusion, I submit that those solutions in e-notification and e-signature of rewards are more and more used and should be the preferred way in the international arbitration practice.

Alison: Thank you very much Clément, some excellent points made there. And I do remember printing those thousands of pages back in the day. So let's see what our second speaker Michelle Nelson has to reply. Michelle Nelson is a partner in Reed Smith's Dubai office. She sits in our global Energy and Natural Resources Group. Michelle is a specialist arbitration lawyer with 27 years of experience advising a variety of clients on oil and gas and construction disputes. She is a qualified solicitor advocate. She sits as arbitrator on regional disputes and also has rights of audience before the DIFC courts. And I do have to mention that she is the only female in the Legal 500 Hall of Fame for Construction and has been ranked in the 2024 edition of  Who's Who Legal for the Arbitration category. So Michelle take it away.

Michelle: Thank you very much, everyone and I'm delighted to participate in this Greener Arbitration podcast series and particularly on the topic of e-signatures and e-notifications of arbitral awards. I've been tasked today with arguing against the proposition that my colleague Clément put forward and specifically why in the case of e-signatures and e-awards, a greener approach is not always best. So my colleague Clément made some interesting points but there are fundamental reasons why parties should cautiously approach e-signatures and e-notifications of awards, even if they are better for the environment. A point which certainly from my side is itself is debatable, but there's specifically three points against the proposition that I'm going to be considering in some detail.

First, the end goal of any claimant in arbitration is to have an enforceable award. And I think Clément agrees with that proposition. Whilst e-signatures and e-notifications of awards may well be a greener option, they will not necessarily be valid and enforceable in every jurisdiction and this requires a cautious case by case approach. If the award is unenforceable, then greener clearly is not better.

Secondly, parties and tribunals who accept e-signatures and e-notification of awards open themselves up to a host of potential cybersecurity and data integrity risks. Even the largest law firms and the most prominent barristers chambers have been victims of hacking and data leaks. And as the world becomes increasingly more reliant on digital technology, these risks are expected to increase. This is the downside or perhaps I should say the dark side of opting for e-signatures and e-notification of awards.

Thirdly, I have to question whether my opponent's claims that e-awards are demonstrably better for the environment at all. I suggest that in practice, the positive environmental impact of signing an award with an e-signature or notifying an award by email has perhaps been grossly exaggerated by my opponent. Whilst one could argue that every little bit counts, there are several other areas of arbitration and we've, we've, we've heard about those in terms of the printing of bundles and thousands of pages of submissions and issues of virtual hearing e-bundles and the like which certainly I would suggest should be prioritized. So taking down each one of these points.

Firstly, the issue of enforcement now arbitration, in contrast to other ADR mechanisms has the advantage of a binding decision at the end, making it a viable and well established alternative to traditional litigation. Any doubts about enforceability of an award puts at risk, the whole purpose of the arbitration itself. The use of e-awards and e-signatures is particularly risky in the context of international arbitration. Each jurisdiction has its own different requirements as to the validity of enforceability of awards ranging from the need for a wet ink signature to an originality requirement where it will be expected that a hard copy original award will be provided. Awards with e-signatures, or that have notified by email only, will not suffice and are likely to lead to increased costs and prolonged legal battles around enforcement.

Now, my opponent Clément gave a shopping list of examples of countries which theoretically allow for e-awards. Yet the countries mentioned only included Western European countries and the U.S. So I do have to ask, what about the rest of the world? e-Awards may not be enforceable in a number of countries. So care must be taken. Whilst I accept my friend's argument that national courts of some countries are moving towards acceptance of digital methods, we simply aren't there yet. The suggestion that scholars may argue that e-awards cannot be challenged will not give clients much comfort when a court says no. Here in the UAE for example, there are currently a number of cases in the courts and have been sent to the courts where nullification proceedings have been put on hold. Whilst the tribunals have actually been told to go away and reissue awards and sign them in wet ink, which not only of course, is increased time, it causes increased cost as well. And the risk the award will not be enforceable in any event. I should note that the Chartered Institution of Arbitrators has also given some reluctance in its guidance and said that even though digital technology is rapidly becoming a widely accepted business and legal tool, it's advisable to keep key procedural documents in both soft and hard copies containing signatures of participants where necessary. So again, this is suggesting a cautious approach.

So the bottom line, I would say any party considering use of an e-award or e-signature perhaps should obtain an opinion from local council first to make sure that there is not a risk in that individual jurisdiction. Clearly greener is not better if the award is unenforceable.

Secondly, although data security risks are inherent in any form of electronic communications, the stakes are higher when it comes to e-awards due to their commercially sensitive and confidential nature. Confidentiality is one of the many factors that makes arbitration more attractive than litigation. Yet, a cybersecurity threat puts this at risk. Big businesses may well have excellent firewalls but many arbitration parties are smaller businesses without top class IT support. When it comes to a final award there are good reasons why it's worth having a hard copy in your office safe. And doubts could also be raised as to the authenticity of e-signatures used and the award itself.

For example, courts may question whether the integrity of the e-award has been preserved and whether or not the award was safeguarded against later modification. One can imagine an enforcement scenario where a fraud has been committed and local courts do not have the means to authenticate thee-award, even if the local law ordinarily permits its enforcement. Now, I accept my friends point that some jurisdictions including the EU and specific EU countries like France have taken regulatory steps towards developing a framework to protect against forgery and other mischief involving e-signatures. But again, this does not include the majority of the world's countries. And in fact, underscores the very real risks that e-signatures present. And statistically, I think it's right to say that much of the world's users of arbitration is not necessarily in the EU.

As for e-notifications, email does not provide the same level of certainty as a courier delivered and signed for paper award, a standard email will not inform the sender as to whether or not the recipient had received it, the email might be shown as sent however, there's no certainty as to whether it has in fact been delivered and given the sheer volume of email traffic, one could even imagine a scenario where a party misses that all important email. And if the award needs to be annulled time will be ticking to file those proceedings with irreversible consequences if a time bar is missed.

So lastly, even if one were to disregard all of the things that I've said so far, we need to consider whether or not e-awards make a significant difference for sustainability. My friend was keen to point out the benefits of online hearings, general correspondence and so forth. But this debate is focused on e-signatures and e-awards. Now I accept that it is not ideal to fly several copies, an arbitration award around the world to be signed by three arbitrators and then delivered to the parties. Yet in the grand scheme of an arbitration carbon footprint, it is a relatively small package being carried on a large airplane that was making the trip anyway. While arbitrations do have a significant carbon footprint, studies show that energy use powering law firm offices and air travel for in-person hearings are the top two biggest causes of CO2 emissions in arbitrations. Apparently 92.7% of carbon emissions for hearings come from flights alone that if we really want to make arbitrations greener, our priority should be on those areas instead.

So in closing, it comes down to a cost benefit exercise. Parties should ask themselves whether the benefit of a small reduction in paper waste and CO2 emissions is worth the risk of an unenforceable award. Indeed, a recent Queen Mary International Arbitration survey confirmed that participants are generally not overly enthusiastic about receiving an e-award. Only 14% stated that they wanted awards to be signed electronically. It seems that people have spoken and would agree with me that when it comes to e-awards, greener is not always better. Thank you.

Vanessa: Thank you, Michelle. There are some very compelling arguments here. Both sides have made extremely strong arguments but how do we tell them apart? Well, it's time for rebuttal starting with Clément. Clément, what do you have to answer to Michelle?

Clément: In response to Michelle's very interesting points I will limit myself to the following three remarks. First, as to enforcement of awards. As I said earlier, the question of enforcement must be resolved by looking at the applicable law and national solutions may vary from one region to another. That said, I also note that one, the New York Convention is silent on the delivery of the awards to the parties and two, although the risk regarding enforcement of e-awards has been expressed in relation to the formal requirements of an award, question of due process or international public policy, the reality is that e-awards cannot in fact be seriously challenged on those grounds. As mentioned earlier, formal requirements have in reality very little to do with the format digital or tangible of the substantive text of the award.

As to due process requirements, a party must be given proper notice of an arbitral proceedings. And nowadays, emails are an accepted mode of giving notice while there are issues such as being unable to prove when a party receives an email. Email software has made it simpler for a sender to be notified if the receiver of the email opens a particular email by creating provisions of read receipts. And for instance, in another instance, the High Court in India has held that a notice sent on WhatsApp was actually good service. And finally, the rendering of e-awards does not breach international public policy as we actually failed to see what would be the valid ground in this respect.

Two on cyber security and online arbitration, I've listened to the legitimate concerns raised by my learned colleague. While these concerns should not be ignored, I submit the risk is that link, again I would say, to the form of the original award electronic or paper because in either case, the arbitrators can be hacked and the award tampered with. The reality is that both wet ink and e-signatures can be forged. And the difference lies in reality in the way in which the fraud is proven or discovered for a paper signature with the help of an expert, a graphologist expert, and for the electronic signature with the help of an IT specialist. The real issue is how to ensure that the signature on the award is not forged. As to online signatures are used additional requirements may be imposed. In application of the EU regulation mentioned earlier, French law, for instance, has created four different levels of security in which signatures can be categorized. The two highest levels are recommended to companies for their contracts and agreements where e-signatures are certified as having the same value of a paper hand signature. And there are numerous specialized IT platforms, and I will mention for instance, DocuSign, which has been certified by the French government to ensure the integrity of e-signatures.

Last points, e-signatures and notification of awards in arbitration constitute a means to tackle the climate change problem. As it allows to reduce, reducing the impact of arbitration on the environment. They have a direct effect on paper consumption. And two, they have also an impact in reducing the need for air travel. As we know every step count and as international arbitration is taking the green transition turn e-signature and e-notification of rewards must be adopted on a wider scope. Thank you very much.

Alison: Ok. Our time is up for this episode and we would like to thank warmly Michelle and Clément for their time and precious insights on this topic.

Vanessa: This was our last episode for this miniseries on how to reduce the environmental impact of arbitration. But we will revert soon with a new topic. Until then, thank you for listening to our Arbitral Insights Greener Arbitrations podcast series. We hope you enjoyed it.

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com, and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice, and is not intended to establish an attorney-client relationship,  nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

All rights reserved.

Transcript is auto-generated.

James Willn, Ana Ulseth, Chris Edwards and Mathilde Adant debate the environmental impact of in-person vs. remote hearings. Hosts Alison Eslick and Vanessa Thieffry moderate the session in which debaters discuss technological issues, security challenges and the financial and psychological impacts of remote hearings. 

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Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. Welcome to our Greener Arbitrations podcast miniseries platform where Reed Smith's international arbitration lawyers will be exploring the legal and technical issues involved in reducing the environmental footprint of arbitrations. I am Alison Eslick, an international arbitration lawyer at Reed Smith's Dubai office. And I am Vanessa Thieffry, an international arbitration lawyer at Reed Smith's Paris office. In these episodes, we will hear from leading arbitration practitioners and external speakers and discuss insights, news and trends relevant to greening arbitration and the challenges that are entailed. We hope you enjoy this episode.

Alison: Welcome back to another episode of Reed Smith's Arbitral Insights. I'm Alison Eslick and together with my colleague, Vanessa Thieffry. We are delighted to host the fifth episode of our Greener Arbitrations mini series where lawyers of Reed Smith debate how to reduce the environmental footprint of arbitrations. In 2022, Reed Smith launched an initiative to reduce the environmental footprint of our arbitrations. And we quickly identified the need to raise awareness both internally and externally and organizing a podcast mini series like this on Greener arbitrations appeared a really obvious tool to do that.

In the first four episodes, we address these topics: arbitration agreements and whether they should include sustainability measures, the campaign for Greener Arbitration's Model Green Procedural Order and whether it was unavoidable, the topic of hard copy submissions and whether they were a thing of the past, and witness and expert preparation and whether video conferencing can really truly match in person meetings. So if you haven't listened to the podcast yet, please do tune in. They're all available on Reed Smith's podcast channel, Arbitral Insights.

Vanessa: Thank you, Alison. So in this episode, we focus on the hard part hearings and more particularly whether in person hearings are worth their while. As compared to virtual hearings with the COVID-19 pandemic, we kept on arbitrating and the arbitration community got into the habit of virtual hearings. Although at first voices of concern and caution were raised in the aftermath of the pandemic. Virtual hearings remained and in-person hearings often have a drastic environmental impact. A case study recently revealed that for a given arbitration, the in-person hearing gave rise to 19 times the carbon footprint of a virtual hearing. Mostly because of the flights of the arbitrators, experts, counsel and witnesses, et cetera, all these people involved with the hearing to get to the hearing venue. So a few, few years back, let's take stock. Are in-person hearings still worth their while?

Short disclaimer, please note that for the purposes of these podcasts, our debaters have been assigned the positions that they are advocating. This is because we felt that topics would be better explored if one team fully advocated their position for or against the proposition. The debaters are thus role playing and none of the views expressed during the debates should be attributed to any of the individuals participating in the debates or Reed Smith or any of its clients.

Alison: With that said Vanessa, let's start. The first speaker of each team will make their arguments for and against the proposition and a second speaker will make a rebuttal. So the first speaker up is Ana Ulseth. Ana is an associate in Reed Smith's global Commercial Disputes Group in our Miami office. Her practice focuses on international dispute resolution across a myriad of sectors including complex litigation in state and federal courts as well as international commercial and investment arbitrations. Now, Ana is also an eager Reed Smith Greener Arbitrations ambassador. So, Ana, the floor is yours. Why are in person hearings worth their while?

Ana: Hello, everyone. And thank you Alison and Vanessa for the kind invitation to join you. I'm thrilled to be here discussing this pivotal topic. In-person arbitration hearings are worth their while. And when I say this, I rely on two main points. First, it is easier to safeguard due process concerns in in-person hearings. As we know, a hearing is one of the most pivotal important junctures in an arbitral proceeding. Generally, a hearing encompasses the exchange of arguments and evidence. The ability to be heard and mount your case or defense is a cornerstone of due process and the requirements of procedural equality and fairness permeates all faces of an arbitration. Article five of the New York convention sets forth limited grounds on which recognition and enforcement of an award may be refused. One of those grounds includes when a party is otherwise unable to present their case as a ground for refusal. Being able to present arguments and evidence in person significantly aids in the conduct of a proceeding that is compliant with due process principles and that helps to secure the sanctity of an award. Everyone from council to the tribunal has more control over the proceeding during in-person hearings. Things like cross examinations and breaks along with any last minute issues that may arise are easier to address when you have everyone in one room.

Now, due process or equality may be infringed upon by technological issues experienced by parties during a virtual hearing. For example, if one party is affected by technological issues but not the other this may infringe equality in an ongoing proceeding. Additionally, although the tribunal has the discretion depending on the arbitration agreement and applicable rules or treaties to assist the parties with the determination of whether hearings will be in-person or virtual. This raises potentially challenging questions regarding how the tribunal can make the right call when the parties are in disagreement. Some questions that might arise here are, how will the tribunal ensure that the decision making process is fair to both parties in determining whether to require in person or virtual hearings? What test can be applied and how will the burden of proof be taken into consideration to ensure the ruling is fair and equitable? At the end of the day as council, we have a responsibility to provide zealous advocacy and act in the best interests of our clients. Certainly, this includes preserving the sanctity of an award and indeed, this is more easily achieved in-person.

As to my second point which is closely related to the first, in-person hearings provide counsel with more control over the entire proceeding. Various surveys have shown that parties have trepidations about virtual hearings. These trepidations include beliefs that it is harder to concentrate during a virtual hearing than it is during an in person hearing, that virtual hearings may be less secure or confidential. But the impact of any witnesses cross-examination might be diminished by virtual hearings. And that if virtual hearings are to be widely used changes will be required to the civil procedure and arbitration laws of certain jurisdictions. Additionally, virtual cross examination may also not be helpful if there are audio or video distortions, freezing of images or time lapse. Certainly behaviors observed virtually can more easily be over-interpreted or simply erroneously interpreted. Moreover, as advocates, our opening and closing statements are physically and intellectually demanding performance tests. There is a tangible advantage to subjecting opposing counsel and witnesses to these demanding experiences in person. There is no question that virtual hearings are more comfortable for everyone but comfort is not our guiding principle. And while virtual hearings are certainly greener and better for the environment, we should only opt for them if and when it is in the best interests of the client and their case or defense.

Lastly, on this point, nonverbal communication is very challenging to understand in virtual hearings. Our job as advocates is to facilitate the tribunal's decision making process. A variety of studies has shown that a range between 55% to 93% corresponds with non-verbal communication. And this is facilitated in in-person hearings in the same room as the tribunal, the witnesses, the parties and the experts. In essence, to sum up my argument, the potential for connectivity issues, frequency of breaks and unexpected interruptions are higher with virtual hearings and have the potential to affect the due process of a proceeding.

Vanessa: That is a very strong argument. But let's see what our second debater, Mathilde has to reply. Mathilde is an associate in our Paris office and her practice focuses on international commercial arbitration, especially in the construction and energy sectors. She is a part of our Energy and Natural Resources Group. Matilde will now advocate the position that in-person hearings are not worth their while.

Mathilde: While Ana has made a compelling case for the enduring merits of in-person hearings, I will present the reasons why their benefits do not outweigh the virtues of virtual hearings. My starting point is maybe the most obvious downside of in-person hearings which is their environmental impact. International arbitration generally involves parties from different countries or continents. And in this context, virtual hearings minimize travel for all participants including arbitrators, parties, council experts witnesses and court reporters. They also eliminate the need for extra physical infrastructure such as venues and offices which typically contribute to a significant carbon footprint.

Second, contrary to what we can sometimes hear making an environmentally conscious choice in favor of virtual hearings does not have to go against efficiency, due process or the client's best interests. Nowadays, technological advancements have made virtual hearings effective and secure. We now have access to high quality video conferencing, secured through robust encryption mechanisms and cybersecurity measures as well as advanced tools for evidence presentation. These technological advancements are perfectly able to ensure the integrity and fairness of the arbitration process. Any concerns regarding technological glitches and data security can be mitigated through continuous improvement and investment in robust technology infrastructure. Furthermore, technology has evolved to bridge the gap in conveying nonverbal communication through, for example, uh video conferencing, screen sharing and advanced virtual collaboration tools. Virtual appearance can also be less intimidating for witnesses which may look for a more open and honest communication.

A third point in favor of virtual hearings, which may be more convincing to clients in particular is the fact that they allow parties to save time and costs. As we know, traditional in-person arbitration hearings can be very expensive. They add to the already significant legal costs, costs of travel, accommodation, meals, as well as the costs of renting the hearing venue. All these costs are significantly reduced in a virtual hearing. Virtual hearings can also save a considerable amount of time. They eliminate the travel time for all participants and substantially reduce the time spent on logistics and administrative matters such as securing venues, making travel arrangements and so on. Beyond this, the flexibility and convenience of virtual hearings means that they can be scheduled more easily and that they can be conducted more efficiently. For example, because they allow for the use of time saving tools such as simultaneous interpretation, shared screens or chat features. This reduction in time spent by arbitrators consulting experts also reduces costs for clients. And this decrease in costs also means that individuals or entities with financial constraints can participate without incurring travel and accommodation costs. This makes arbitration which is often considered expensive, more accessible as a dispute resolution method. So as demonstrated by these numerous benefits, the incorporation of technology into legal proceedings makes virtual hearings not only a formidable contender but the ultimate victor over in-person hearings.

Alison: Thank you very much, Mathilde. Wow. I mean, I find myself conflicted and agreeing with both Ana and Mathilde at the same time. So let's test these arguments further. We now move on to rebuttal. Uh and Chris Edwards will take the floor. Now, Chris is a council in our Dubai office and a member of the Energy and Natural Resources Group. He has over a decade of experience advising clients on the complete life cycle of construction projects and disputes across the Middle East, Africa and Asia. So Chris, I believe you will advocate for the affirmative.

Chris: Hi everyone and thank you to Vanessa and Alison for inviting me to join this podcast today. I want to start by addressing the presumed environmental impact of virtual hearings. And I think there are a number of assumptions that are made about the green credentials of virtual hearings and also in person ones for starters virtual hearings may still require travel, virtual hearings are rarely ever conducted from each person's home. Participants will often congregate across hubs. For example, arbitrators may sit together or the parties and their respective lawyers in their respective officers and equally travel for in-person hearings can be limited, for example, by appointing arbitrators, lawyers experts, all of those can be appointed on the ground in the location of the hearing. It's also an assumption to suggest that travel is necessarily polluting. You could take a Tesla, you could offset your carbon footprint of airplane travel or you could even walk and you may laugh at the latter. But I did walk to a hearing recently.

It's also a misnomer to say that you're necessarily eliminating the need for physical infrastructure. As I mentioned, previously, participants still gather physically and ultimately, in terms of the venue, the venue can deploy green practices. It's really a question of what those are in the specific location where you're sitting. For example, a venue in office, if those are chosen, could use a green protocol or green practices such as electronic bundles technology platforms to display evidence and the use of laptops instead of paper pats and no bottles. So it's not necessarily correct to suggest that eliminating the need for a physical office or venue would in itself be green or not green.

The next point in terms of environmental impact is the use of electronic bundles. It's often suggested that virtual hearings go hand in hand with electronic bundles. I don't think that's always the case. I've known arbitrators to request hard copies for virtual hearings and equally hard copies are often exchanged leading up to virtual hearings as well. I've also seen in-person hearings use the electronic bundles, in fact, if I think back to the last in-person hearing that I sat in with hard copy bundles it was almost 10 years ago. So technology has really changed in terms of in person hearings as well. In terms of some of the other points not relating to the environmental impact of in-person and virtual hearings I think there's an assumption that these technological advances in terms of virtual hearings are necessarily entirely effective and secure. Whilst there have been improvements, a virtual hearing cannot compete with an in-person hearing in terms of security. Participants still and also just generally, in terms of effectiveness, participants still struggle to navigate breakout rooms and find that pesky mute button and they will never be more secure than sitting together in a single room. On bridging the gap of nonverbal communication, nothing can beat sitting face to face as we found earlier when we were trying to put this podcast together, took us 10 or 15 minutes to start.

Finally on time and cost whilst hiring a venue may be more expensive. Again, this is not necessarily given and in any event, it's not generally significant compared to the overall cost that a party might spend on arbitration as a whole. In respect of time, I'd suggest that focusing everyone in one place can be much more efficient than virtual hearings, which often end up being scheduled across weeks or even months. So I think in terms of which is favorable, I think the general practice of in-person hearings is really returned to the scene and that in itself shows that that's the preference of practitioners at this stage. Whilst virtual hearings have their place in terms of, for example, things like CMCs, full blown hearings are still best in person.

Vanessa: Thank you, Chris. There were some strong points in there, fun points and real arguments to each side. We still have one last speaker who may actually help to the scale. James Willn. James will rebut Ana's arguments that in-person hearings are worthwhile. James is a partner in our Dubai office and a member of our Energy and Natural Resources Group. He is an arbitration lawyer with more than 14 years experience and his practice centers on complex disputes and international arbitrations largely within the construction, the offshore oil and gas and other energy industries. In addition, James is recognized for his asset tracing and recovery litigation work as well as his work on contentious and non-contentious sanctions issues. So James, what is your answer to Ana?

James: Yeah, thanks. Thanks for that, Vanessa. No, that is really useful and um completely valid points and yes, having been through several hearings, uh interlocutory hearings CMCCs hearings during the COVID period. I can definitely say that they work um in that sense, there is some efficiencies there, time costs and savings. But I um I think where I come from is that real efficiency element of, of, of the of the virtual sense of things. So I, I see this quite a lot. Uh typically from barristers, I have to say who say, well, you know, virtual is fine um up to a point. But you know, you can't beat a good in-person, the whole witnesses the see the, the whites of their eyes and all that kind of stuff. And I, and I sometimes think that that's more about the drama than actually the rub of the dispute or, or getting to the actual evidence. Look, I love a good, full blown bluster hearing myself. You know, it's like a like a day trip to the theater, isn't it? The drama, the excitement, the tension, good witnesses, bad witnesses. Um It's, it's all good fun, but whilst we might be enjoying it as the lawyers and I know certainly some of the clients enjoyed it as well.

Ultimately, there's a cost there and with these more, bigger uh more global, more, more complicated arbitrations where, you know, the legal team is four or five individuals. Um The witness team could be six or eight, your expert team, two or three. And then even the client side could be three or four individuals um often from, you know, all around the globe. Um It's very rare that in an international arbitration, all parties are, are located in one jurisdiction. Uh notwithstanding that the seat of the arbitration might be somewhere completely different anyway, So in reality, you're talking travel, you're talking hotels, lack of management, time, uh key individuals away from their, from their day jobs. That that's a, that's a huge cost.

So for me, COVID taught me and, and I was as surprised as many that the the virtual hearings really do work. I did a huge multiparty, multidisciplinary, multi jurisdiction uh construction arbitration in the middle of, of COVID uh different languages, some Koreans in there, some Libyans, some Arabic speakers with the whole blown technology and it worked. And I think I was as surprised as many. So where I've seen complicated, difficult, complex time consuming arbitrations work in a virtual context, for me, notwithstanding the drama, the theater and the excitement, the reality is they are just as effective as the, as the in-person and obviously cost a whole lot less.

Alison: Thank you, James. Look, our time is up for this episode and we would like to warmly thank Ana, Mathilde, Chris and James for participating in this podcast. Stay tuned for episode six where we tackle perhaps the most important part of arbitration, uh besides the hearing, and that is the award. Our debaters will uh go head to head on the topic, Electronic signature and notification of awards: Is green always better? Until then thank you for listening to our Arbitral Insights, Greener Arbitrations podcast series. We hope you enjoyed it.

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration Practice, email [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 Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

All rights reserved.

Transcript is auto-generated.

Host Gautam Bhattacharyya welcomes newly appointed secretary general of the Stockholm Chamber of Commerce (SCC) Arbitration Institute, Caroline Falconer, to explore her career path to date and her role in shaping the future of arbitration at the SCC. Caroline, also a co-founder of the Swedish Women in Arbitration Network (SWAN) and president of the Swedish Corporate Lawyers’ Association, shares her views on the importance of diversity in arbitration, the future of AI in arbitration, and her vision of the role of the SCC in the international arena.

Gautam Bhattacharyya welcomes Tariq Khan, registrar of the International Arbitration and Mediation Centre (IAMC), Hyderabad and adjunct professor at the NALSAR University of Law, to discuss his career path, views on international arbitration in India, and what he thinks is on the horizon for arbitration in India and beyond.