Arbitral Insights

Esha Kamboj, attorney-advisor for Asia-Pacific with the U.S. Department of Commerce's Commercial Law Development Program, joins Rebeca Mosquera to share her professional journey from private legal practice to her current governmental role. She discusses the motivations behind her transition, the skills and experiences that shaped her approach to international arbitration, and the evolving ADR landscape in the Asia-Pacific region.

This International Women's Day (IWD), our hosts, London partner Lucy Winnington-Ingram and ArbitralWomen president Rebeca Mosquera, are joined by Ayse Yazir, Managing Director of Bench Walk Advisors, Alison Macdonald KC of Essex Court Chambers, Natalia Mori, an attorney based in Lima, and Ana Irene Delgado, Panamanian lawyer, diplomat, and politician, to discuss what the IWD theme of “accelerate action” means to them.

As the Hong Kong International Arbitration Centre celebrates its 40th anniversary, Reed Smith's J.P. Duffy welcomes Secretary-General Joanne Lau to discuss the center's major milestones, including the launch of its Beijing office and the updated 2024 rules. J.P. and Ms. Lau explore trends in the HKIAC's caseload, its goals for the next five to 10 years, and its strategies for maintaining its leadership in dispute resolution across the Asia-Pacific Region and beyond.

Reed Smith partner Gautam Bhattacharyya sits down with Professor Yarik Kryvoi, Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law. Yarik reflects on his career journey, highlighting the mentors who influenced his path. The duo then discuss the interplay between corruption and arbitration, the evolving role of public international law in the global legal landscape, and the intricacies of sanctions regimes and their impact on arbitration, before turning to the challenges arbitrators face when navigating these complex issues – and Yarik's love of judo.

J.P. Duffy is joined by Jeff Zaino, vice president of the AAA-ICDR's Commercial Division, to discuss the AAA's upcoming centenary and its enduring reputation as a trusted choice for resolving commercial conflicts across industries. The conversation delves into the AAA's significant milestones and accomplishments, highlighting its commitment to innovation, including its approach to AI and the recent appointment of Bridget McCormack as president and CEO. ----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. And with that, let's get started.  J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the American Arbitration Association with Jeff Zaino, who's the vice president of the AAA's commercial division. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales in the DIFC courts in Dubai, where I previously lived and practiced. I routinely represent clients and arbitrations involving a range of issues and frequently sit as an arbitrator in commercial disputes as well. I also have the good fortune to be a member of the AAA's commercial division arbitrator roster, the ICDR panel, and I'm a member of the AAA-ICDR Life Sciences Steering Committee and a member of the ICDR Publications Committee as well. So I get to do a lot with the AAA, which is really a wonderful organization. As I mentioned, with me today is Jeff Zaino, who's the vice president of the commercial division of the AAA in New York. He oversees administration of the large, complex commercial caseload, user outreach, and panel of commercial neutrals in New York. He joined the association in 1990, and Mr. Zaino is dedicated to promoting ADR methods and services. He's also written and published extensively on the topics of electronic reform and ADR, including several podcasts with the ABA, talks on law, and corporate counsel business. And he's appeared on CNN, MSNBC, and Bloomberg to discuss national election reform efforts and the Help America Vote Act. He was deemed a 2018 Alternative Dispute Resolution Champion by the National Law Journal and received awards for his ADR work from the National Academy of Arbitrators, Region 2 and Long Island Labor and Employment Relations Association. In 2022, Jeff received the Alicott Lieber Younger Committee of the Year Award for the New York State Bar Association Commercial and Federal Litigation Section. And in 2023, the Chairman's Award, NYSBA Dispute Resolution Section. So as you can tell, Jeff is a highly experienced, highly lauded arbitration expert, but we're really lucky to have his valuable insights today. So before we begin with some of the substance, let me just give a little bit of background on the AAA and the commercial division so that those that are less familiar have a little bit of information about what we're going to discuss today. The AAA is a non-profit alternative dispute resolution service provider headquartered in New York that administers arbitrations, mediations, and other forms of dispute resolution, such as ombudsperson and dispute avoidance training. It was founded in 1926 to provide an alternative to civil court proceedings, and that makes the AAA one of the oldest arbitral institutions in the world, as well as one of the largest, having administered over 11,553 business-to-business cases in 2023 alone, with a total value of over $19.1 billion. So that should give you a pretty good idea of the scope of what the AAA does. Notably, the AAA has several divisions that offer users substantial subject matter expertise. For instance, the commercial division, which Jeff heads, specializes in business-to-business disputes of all sizes, but has a particular expertise with large complex cases across a variety of industries, including accounting, communications, energy, entertainment, financial services, franchise, hospitality, insurance and reinsurance, life sciences, sports, and technology. There are also separate AAA divisions that focus exclusively on construction issues, consumer disputes, employment matters, government issues, healthcare, and labor disputes. Lastly, as many of our listeners will know, the AAA has a well-known international division, the International Center for Dispute Resolution, or what's colloquially known as the ICDR, that focuses on disputes that have an international component. Before we get into some of our recent developments, Jeff, if you could tell us a bit about what makes the AAA different than other arbitral administrators, I'm sure our audience would love to hear that.  Jeff: Sure. Hey, thanks so much, J.P., for having me today, and thanks for the kind words at the beginning. It's great to be here today. Well, you mentioned it. The AAA is the largest and oldest ADR provider in the world. We have over 700 staff worldwide and 28 offices, including one in Singapore. And we have a huge panel, and you're on that panel. We have 6,000 arbitrators on our panel, and we consider them experts in the industry. And we're really proud of our panel. And like you mentioned, we're hitting our 100th anniversary in 2026. And since then, when I started, I started in the 90s, like you mentioned, 1990. From 1926, when we were founded, to 1990, we did a million cases, one million cases. And then, since then, from 1990 until now, 2024, we hit 8 million, 8 million cases. So it's growing. And I feel that's because of AAA, AAA-ICDR. Again, we've been around for almost 100 years, and we keep on growing. And I feel that we took the A out of ADR. I mean, everyone says alternative dispute resolution, but I really think now it's, and you'll probably agree with me, J.P., that it's dispute resolution. It's something in our toolbox and it's not alternative any longer. And then another thing about us, a huge difference about AAA-ICDR is we're not for profit. That makes us unique in this space. Profit-based companies are a little bit different than what we are. We're not criticizing them, but we're unique in the sense that we work directly for the parties, not for the arbitrators.  J.P.: That's a really interesting stat, Jeff. Let me unpack some of that because I think, first off, if I understood that correctly, you said up until 1990, there were 1 million cases administered. Is that right?  Jeff: That's correct. We did 1 million cases from our founding, 1926, a year after the Federal Arbitration Act in 1925. So we did 1 million when I came on board in 1990. And then from 1990 until now, we've done a total of 8 million. So we doubled that, or tripled it. It's been amazing how the growth that we've seen. And also during a pandemic, we saw a huge growth at AAA-ICDR.  J.P.: And Jeff, one thing that I think you're obviously very involved with the New York State Bar, and I've done quite a bit with the New York State Bar myself over the years. One thing that I noticed, and you just reminded me of this, was an uptick in submission agreements during the pandemic, by which I mean parties taking existing disputes for which there was no arbitration clause, drafting an arbitration clause for it to submit it and move it into arbitration. And I think some of that was a function of the recognition that disputes would founder if the courts were closed and that parties needed things done. Did you see that kind of growth during the pandemic of submission agreements as well?  Jeff: Absolutely. The courts were shut down, like you mentioned, for three to four months worldwide. And the ADR providers, like the AAA-ICDR, did not shut down. And we did have submissions, more submissions than we've ever seen. And usually it's only about, I would say, 2%, 3% of our caseload is submissions, but we saw the court systems. And I had, personally, I had over a billion dollar case, a bankruptcy case that came to us from Texas and it was mediated. We had two mediators, one in Connecticut and one in Texas. We had six parties, 40 people showed up on the Zoom, J.P., it was amazing. And that was a submission to AAA through the court system. The judge talked to the parties and said, listen, we're shut down. This is an important matter. Why don't you go to AAA? And so, yes, we did see submissions during the pandemic. I'm not sure if that's going to continue on. Most of our disputes are features of contract, as you know.  J.P.: Yeah. I mean, that's always going to be the case in arbitration, right? That the vast majority of cases will be subject to a pre-dispute arbitration clause. But I think it's really interesting when you see submission agreements like that, because I think it's a clear recognition that one, arbitration is a really valuable tool. And two, it's a real plus for the AAA and a real nod of confidence that those are submitted to AAA because that's parties taking something they know has to be figured out and saying, all right, AAA is the guy to do. I wanted to pick up, too, on that exponential growth of 8 million cases between 1990 and the present versus 1 million over the first, you know, what is that, 70-something years or 60-plus years?  Jeff: 60-plus years, absolutely, yeah. J.P.: Are there particular industries that you've seen significant growth in since the 1990 period that you were discussing, like between 1990 and the present? Are there particular industries that you are seeing more growth in or that you think there could be more growth in? Just be curious to get your views on that.  Jeff: Sure, sure. And my area of commercial, as you know, because you're on the commercial panel and the ICDR panel, is healthcare. And I know you're a big part of healthcare. Also, financial services. We've seen a huge growth in that in the last five years. We put together an advisory committee for financial services on insurance. And then also, as you probably know, consumer. We saw a big amount of consumer cases during the pandemic and even prior to the pandemic. And that's a big caseload. It's about 30% of our caseload at AAA-ICDR. But again, people criticize that sometimes and say, well, that's not fair to the consumer. They're forced into arbitration. But what I say, J.P., to law students and when I speak at events like this, I say, listen, we don't draft ourselves into contracts. AAA-ICDR does not do that. People draft us into contracts and we just try to make the process, we try to level the playing field. And we do a lot of consumer, but we do a lot of high-end commercial cases, as you know, a lot of international cases and things like that. But the two areas, I would say, a long way to answer to your question, J.P., is I would say healthcare and financial services, insurance, that's where we're seeing a lot of growth and also technology.  J.P.: The consumer aspect is one that is obviously very, very, very hot right now, given things like the mass arbitration rules and things like that. And we will probably touch on that in a bit, but it's a really valuable service to provide. And that's one thing that I think the AAA really does well. As you mentioned, it's a not-for-profit organization. It's not an organization that's out to make money off of consumer disputes. It's really there to help everybody resolve them. So something for everyone to keep in mind.  Jeff: The company bears the cost, not the consumer. And I hope people know that, that we're not out, like you said, we're not out to make a big buck on this. We're just trying to level a playing field and access to justice for these people.  J.P.: Yeah. And that's really what it is. At the end of the day, it's access to justice. And a lot of times the alternative is small claims court, which is not always a great choice. I've sat as an arbitrator in small claims court a few times, and I can tell you it's a great process when it works, but it can be a challenging process as well so  Jeff: Without a doubt.  J.P.: Always something to keep in mind. Yeah. Well, let's talk then about some of the recent developments because there have been quite a few. And as you mentioned, it's coming up on the centennial for the AAA-ICDR. And a lot has happened, obviously, in the 100 years of its existence, almost 100 years of its existence.  Jeff: Sure.  J.P.: And quite a few of those things are pretty monumental. And one of the biggest ones, I guess, is that in February 2023. Bridget McCormack took over as president and CEO of the AAA-ICDR from India Johnson, who was in that role for a lot of years. Bridget was previously the chief justice of the Michigan Supreme Court, if I'm correct, and was also a professor and associate dean at the prestigious University of Michigan Law School. So she brings a pretty extensive wealth of experience to the AAA. Now that she's been in that role for about a year and a half, how have things been different at the AAA-ICDR under Bridget's leadership?  Jeff: It's been wonderful. I mean, Bridget brings such life to the company right now. I mean, India Johnson was great. She put our house in order, our finances. but Bridget is now doing a wonderful job in getting out there. I'm not sure, J.P., have you met her yet?  J.P.: I have not had the pleasure of meeting her in person, but I'll sort of preview for our listeners that we are in the process of trying to get Bridget into our firm to talk to everyone about what the AAA-ICDR does and give sort of an insider's view for our partners.  Jeff: Oh, wonderful. She's such a dynamic speaker. If you go on YouTube, you'll see she speaks all the time. It's amazing. Whenever I ask her to speak at an event in New York, I feel bad about asking her because I know how busy she is, but she does agree. But I have to find a space in her calendar because if you see on LinkedIn, I know you're on LinkedIn too, J.P., and she is everywhere. It seems like every week she's speaking somewhere, very dynamic, and she embraces AI. And I know we're going to talk about AI a little bit, but also innovation. And she's been doing such a terrific job being the face of the AAA, and we needed that. India, again, did a wonderful job, but Bridget is out there and around the world doing international events, doing events here domestically. And it really, I think, is getting the word out there about ADR and about, well, I should say DR, sorry, dispute resolution, and also access to justice. Being a former chief justice of the Supreme Court of Michigan, doing a terrific job. And really, the people in the company are very excited. We have 700 plus employees, and we're excited with our new president. It really has been a great time with her.  J.P.: You know it's funny. The one thing I've universally heard from anyone who works there when I ask about Bridget is everyone says great energy, great leadership, and really, really, really strong presence, which is really wonderful to hear because you seem to be echoing that pretty strongly as well.  Jeff: Yeah, without a doubt. I mean, when she works a room, when she talks at an event, and it's great. We're forward-looking right now, big time. The AAA now is looking, AAA-ICDR, looking towards the future with innovation, with ODR, and we're going to talk about that, and with access to justice, which I love. And she's doing a terrific job.  J.P.: Well, that's great to hear. And I think we are going to talk about odr.com in just a second. But before we do that, I'd just be curious, because they may well be the same thing. But what would you say Bridget's greatest accomplishment is so far?  Jeff: I would say being the face of the AAA and embracing new ideas. For years, we didn't really, we moved kind of slowly. We embraced new ideas, but we moved slowly like a battleship turning around or an aircraft carrier turning around. We moved slowly. We're not doing that any longer. Bridget wants to move on quickly, which is great, and embrace things that are going on. And I think we're ahead of the curve on a lot of things, with acquiring ODR, with our embracing AI, with her ideas about innovation, access to justice. We are, I think, really ahead of the curve with respect to these areas, ahead of law firms, ahead of some of our competitors. And I attribute that to Bridget.  J.P.: That's really great to hear. That's really great to hear. And it's really hard with a large organization to be nimble. Exactly. I know we do that pretty well at Reed Smith, I think, too, but it's a challenge, and it does require great leadership in order to get everybody on board with that. So it's wonderful to hear that's happening at the AAA-ICDR, and you see it.  Jeff: Oh, yeah, without a doubt. And also, we're almost 100-year-old organizations, so you would think that we wouldn't be thinking about these innovation things in the future, but we are, which is terrific. We're an old organization, but not really. We're ready for the future.  J.P.: Well, let's talk about that future a bit because it's clear that there's a strong focus on that. And one of the first things that I noticed is the odr.com resourceful internet solutions acquisition. So for those that don't know anything about that, maybe you could fill the audience in and give us a bit of background about that one and what it's done for the AAA-ICDR.  Jeff: Sure. We just recently, a few months ago, acquired odr.com. It's a company that's been around for approximately 25 years. Online dispute resolution that can be completely customized for your needs for online dispute resolution. And they've been doing a wonderful job for many years. Okay. obviously much smaller than the AAA-ICDR, but they've been working with us. I'm not sure if you know this, J.P., but they've helped us with our no-fault business in New York. They help us set up our system initially years ago. So we've had a relationship with them for probably two decades with ODR. So we recently acquired them and we're working with them. Their most important area is right now is mediation. They have mediate.com and we're looking at  our mediation.org and combining those two. Okay. And we want to expand our mediation business. And again, I mentioned it a couple of times, access to justice. We want high volume cases. Okay. We do obviously high-end cases, high dollar cases, but right now we're seeing with odr.com, we can spread the business, we can grow the business and we can expand our mediation business. And that's what we're trying to do because mediation is growing. As you know, J.P., it's it mediation has grown tremendously over the last couple of decades. But now with ODR online dispute resolution, I mean, it's going to really grow, I think. So that's what that's why we acquired it. And, you know, Colin Rule, I'm not sure, J.P., if you've ever met Colin Rule. The head of ODR.com.  J.P.: I have not had the pleasure.  Jeff: Yeah, he's he's phenomenal. know if anyone that's listening to this podcast, you just Google Colin Rule. He's been in this space for many, many years and he's a phenomenal person. And I'm really excited about this acquisition. And I think we're going to work so well together.  J.P.: Jeff, just for people like me that are a little bit less savvy with how some of these things work technologically and sort of mechanically, is odr.com and mediate.com is a function of that, right? Or a part of that?  Jeff: Yeah, it's a part of it. Yeah. And I believe they have arbitration.com, but now it's going to be merged in with the AAA. And the platform of odr.com is going to be used for our mediation services at AAA for online mediation services.  J.P.: Okay. That's what I was getting at. So this is like a platform where users or parties and the mediator all log in, communicate with each other. Exchange their positions, and do everything that way. So is it correct to say it's sort of a virtual mediation platform?  Jeff: Yeah, without a doubt. And now the timing is perfect, J.P., because we just came off the pandemic about a couple of years ago, and we were seeing, as you probably know, as an arbitrator at AAA, we were doing thousands of virtual hearings arbitration and also mediation, and it worked. It really worked.  J.P.: Yeah. And that's really one of the true benefits that came out of the pandemic, in my view. Prior to the pandemic, I had always done certain aspects of cases virtually. And there was video conferencing was something that you could suggest, but that parties and frankly, arbitrators were not always that willing to embrace. But I think the pandemic really showed everyone that you can do things virtually. Efficiently, cost-effectively, and in a way that you don't need an in-person hearing for, and that it can be really successful. So I'm sure the timing has been right for odr.com and that acquisition. In terms of integrating it, what's the full timeline for getting it fully integrated, if you don't mind my asking?  Jeff: Sure. I mean, right now we're focusing on mediation. Okay. That's going to be our focus for the next several months. And then I think we're going to try to see if we can move this into arbitration also, because we're still seeing a lot of arbitrations, not a lot. I mean, I would say that 30% of our arbitrations are still being done in the virtual world. We're starting to see, and JP you've been at my Midtown office in Midtown Manhattan on 42nd Street, and we're starting to see about 60 to 70% capacity as an in-person for arbitration. But there's still a segment that wants to do it in the virtual world. And this is where odr.com comes into play. And right now it's, but the focus right now is mediation and working with our mediation team at the AAA-ICDR.  J.P.: Got it. Well, you know, it's funny. I have an employment partner who told me the odds of them ever doing an employment mediation below a certain value in person again are slim to none.  Jeff: Interesting.  J.P.: Yeah. And I think you guys have really hit the nail on the head with this.  Jeff: Well, with labor similar to employment, we're seeing almost 80% of labor cases now in New York City, I'm talking, are being done virtual, maybe even a little bit more than that. They got so used to doing it in the virtual world for labor cases, union management. It's interesting to see where we're going with this. But commercial type disputes, the type that you handle, J.P., we're starting to see more people coming back into in-person. However, we're not seeing the days of a witness flying in from Paris for one hour because we have all the technology at the offices, our offices around the country, the voice activated camera. So we don't need to ship in people for one hour. It's a waste of money.  J.P.: Yeah. And that's, you know, that's really the great thing that this technology allows for, which is, you know, I just did a, to mention the hearing space, Jeff, I just did a pretty large week-long hearing earlier in the year at the AAA's offices on 42nd Street. And it was great, but there were, you know, and I do, you know, myself prefer in-person for certain things, but, you know, during that hearing, we had witnesses that were exactly what you're describing, I mean, really only required to confirm a few issues or give, you know, a short cross examination and they were located in pretty diverse regions. Absolutely no reason to incur the time or expense or frankly, just the headache of bringing those people in from around the world for scheduling purposes and everything else.  Jeff: Sure.  J.P.: We did those, you know, we did those witnesses virtually and that is a real, that's a real benefit. You know, you sort of do that hybrid approach and you can save, it's way more efficient, It's way more cost-effective, and it is just easier from a scheduling perspective. So this is a really great development.  Jeff: Yeah, and J.P., have you noticed, I mean, when you were probably at my office on 42nd Street, we have now the big monitors. And I've noticed that arbitrators like yourself and advocates like yourself are using more technology in the rooms. We have these cupboards in our hearing rooms where the binders used to go, the big binders for exhibits and things like that. No longer am I seeing that. Most arbitrators are now using our, we provide iPads, we have the big monitors, and it seems like people are going away from paper, which is great too.  J.P.: Yeah, it's funny. I'm sort of like probably the last of the Mohicans where people really had to do things like mini books. Like when I was a real junior associate, we would have hearing bundles that were in mini book form and they were, you'd have 55 volumes and everything would be in there. I mean, there's sort of those nightmare stories where parties would spend hundreds of thousands of dollars just pulling together the paper for a hearing. And that, you know, that to me always seemed a little bit crazy. In this day and age, it is totally unnecessary. I would much prefer to have everything electronically. And that hearing space really allows for that. So really, really great to hear that parties are embracing that because it's such a cost savings and it's an efficiency. You know, it just doesn't need to be the way it was.  Jeff: Sure.  J.P.: Well, let's talk then a bit about some of the AI stuff that you were mentioning, because I think that is really, I have to confess, I don't understand it as well as I should. I think most people, if they were being honest, probably have an inkling of what it does, but don't really know. I'd love to hear what the AAA-ICDR is doing with AI, because it's a really, really, really groundbreaking development.  Jeff: Absolutely. Well, if you Google Bridget McCormack, our president, she speaks on AI quite frequently and it really has embraced it. And how have we embraced that AAA? Well, she encourages the staff to use it. And we have, she's even recommended certain programs that we should use. But with respect to how are we using it with respect to running our business? Well, we have ClauseBuilder and you know about ClauseBuilder. It's a tool that was developed in 2013 where people can go online and develop a clause for arbitration. Now we have ClauseBuilder AI, which as opposed to going through various modules with the original ClauseBuilder, you can just type in, I want an employment clause. I want three arbitrators. I want limited discovery. And the clause builder AI will build that clause for you. That's something we just rolled out. Also for arbitrators, scheduling orders. We have an AI program right now for arbitrators where a scheduling order usually takes an arbitrator, and you can correct me if I'm wrong, J.P., usually about an hour to two hours after you do the preliminary hearing. Well, now AI reduces that time to probably a couple of minutes for an arbitrator. So we rolled that out. And we obviously were having discussions about low dollar cases, high volume cases. Can AI be used? And we're looking into that. We haven't rolled that out yet. It's not going to eliminate you, J.P., but it's something that we're looking at right now. And we are embracing it. I use it for various things. I'll give you an example. I use it for if I'm doing an educational program, I'll type in, you know, I'm doing a program on arbitration and discovery. Can you give me a good title for this program? I've been doing this for years. I've used a lot of different titles for programs, and it's wonderful to use AI for those purposes and for editing things. So I like the fact that our company embraces it. Some companies do not. Some law firms, as you know, J.P., do not embrace AI. And we had that case last year where I think an attorney, it wasn't arbitration, it was litigation, where he cited cases through AI that never existed.  J.P.: Yeah, that's actually happened more than once since then. And it's been kind of amazing to me. Yeah, it's funny. We as a law firm at Reed Smith have definitely embraced AI. We've got a person who's sort of C-suite level that addresses that and that heads that function up. And I know we are trying to bring it in much more for things that are sort of routine, that don't require necessarily true attorney time. And it is a real game changer. I mean, you know, anybody who doesn't get on board with AI is going to get left behind at some point because it is truly, truly the wave of the future, in my view.  Jeff: Oh, absolutely. And the way I look at it, people say, well, it seems scary or whatever. But what about Google Maps and things that we've embraced years ago? I couldn't live, J.P., without Google Maps. So that's technology that it's going to help us. It's not going to take us over or whatever. It's going to help us enhance what we're doing.  J.P.: Yeah, I think the concerns about Skynet are a little bit, you know, Skynet and Terminator are a little bit far-fetched, but it is something that we all need to get on board with. It's a lot like the way that, you know, when I first started practicing the notion of uploading paper documents to be reviewed and then using search terms was really scary for a lot of people, but that, you know, that became commonplace and you couldn't function without it. This will do the same thing to the extent it's not the same. Now, Jeff, what's the overlap, if any, between that you see between some of the AI initiatives and odr.com?  Jeff: We're not really combining those yet, but I think we will. There's discussions about it, but right now we're focusing on mediation with odr.com and we're discussing rolling out AI with various things to help to assist our arbitrators, are mediators, but I think eventually, you know, there'll be a combination, I think, but right now there's not.  J.P.: Got it. Well, we'll stay tuned because I can't imagine those two things are going to stay in separate houses for too long. Well, we could talk all day about what's going on at the AAA-ICDR right now because it's just amazing. I mean, it's really incredibly, incredibly dynamic at the moment. But what I'd like to do is sort of shift ahead to looking ahead to the future. We talked a bit earlier about how the AAA is rapidly approaching its centennial anniversary, And that's kind of a natural reflection point for any organization. If you were to sort of sum things up and say, what accomplishments from its first century of existence that the AAA is most proud of, what do you think you would point to?  Jeff: Well, I would point to two things. First, how amazing the AAA-ICDR was and also other ADR providers. When pandemic hit, within a week, we were up with 700 employees doing thousands and thousands of cases. And I was worried about the arbitrators, not you, J.P., but other arbitrators with the technology. And our 6,000 arbitrators, it was flawless. It was amazing or seamless. It really went well. And that I'm very, very proud of because I had been with the AAA for a long time prior to that. And I was really concerned that the arbitrators weren't going to get it. We weren't going to be able to understand Microsoft Teams, Zoom, all that kind of stuff. So we did a great job during pandemic. We had some of our best years during pandemic with respect to helping society in arbitrating cases. But also some of the things that we've done for state and federal governments, you know, state and federal governments, Storm Sandy, Katrina. Those are the things I'm very proud of. I was a part of the Storm Sandy stuff where we administered 6,000 cases for homeowners and with insurance companies. And we were able to do that very quickly. And we're a not-for-profit. So the federal government and the state governments look at us and will hire us to do those kind of projects. And we can quickly mobilize because of our staff. So those two things really stand out in my career at AAA.  J.P.: That's a really, really interesting thing to point to because that truly embodies the best that the AAA can offer. It's an incredible service that really helped people with real-life issues during really challenging times. So wonderful to hear. What would you see for the next 100 years in the AAA? Like, you know, looking forward, I know it's going to be here for, it's going to be having its two, it's bicentennial at some point. It will absolutely occur. What would you see is, you know, if you were to fast forward yourself a hundred years and still be in the seat, because by then technology will have kept us all alive for the next hundred years, and you're Jeff Zaino 2.0, sitting around in 200 years, where would you see the AAA-ICDR at that point?  Jeff: Well, I'm on part of the committee for the 100-year anniversary. We have a committee already formed two years in advance to get ready for our 100th year anniversary, and we're talking about this stuff. And I think some of the themes that Bridget's talking about, access to justice, I think we're going to be, we saw from 1990 to now 8 million cases, we're going to see far more. We're going to see the public now embracing arbitration. When I was hired by the AAA in the 90s, I didn't even know what AAA stood for. I mean, with the name, American Arbitration Association. I didn't know what arbitration was. We are reaching out to law schools. We're doing collaboration with a lot of law schools in New York and throughout the country, throughout the world. And I think the word's going to get out there that arbitration is the way to go. Our mediation is too. And I'm excited about that. Also, we're going to see far more diversity at AAA and also in the community. And that's something that we really care about at the AAA. Right now, J.P., as you probably know, any list that goes out at the AAA is a minimum of 30% diverse. So we're going to see an increase in that area, but also access to justice for the public.  J.P.: Really, really great. And I think we will all watch with rapt attention to see what happens because it's only good things in the future for the AAA-ICDR, that's for sure. Well, Jeff, I just want to thank you. But before we wrap this up, I'm going to reserve my right to bring you back for another podcast because there's so much more we could talk about. So, but is there anything I missed that we should hit on now that would be great for the audience to hear? I know there's just so much going on.  Jeff: Well, I hope the audience when in 2026, when we have our 100th anniversary, I hope people participate in it because we're going to do things worldwide and we're going to be doing events everywhere. And that year we really are, we have a huge team of people that are working in our 100th year anniversary and not to just necessarily promote AAA-ICDR, but to promote arbitration and mediation. And that's what we're going to be doing in 2026, and I'm very excited about it.  J.P.: You heard it here first, folks. Arbitration is the future. And Jeff said it himself. So we will definitely watch closely. Well, good. And just to give a very quick preview on this one, too, because Jeff, you mentioned it. We are going to, in the future, have your colleagues from the ICDR side of the house come on, and we're going to bring some of the new folks from Singapore and a few other people. So more to come. And it's just incredible to see.  Jeff: We look forward to it. And J.P., I'd love to have another sit down with you. It's been great.  J.P.: Good. We absolutely will. So that then will conclude our discussion at the American Arbitration Association for now. And I want to thank our guest, Jeff Zaino of the AAA Commercial Division for his invaluable insights. And I want to thank you, the audience, for listening today. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should absolutely as well feel free to reach out to Jeff. I know he's super responsive and he would love to chat with you directly if you have any questions. And we look forward to having you tune in for future episodes of the series, including future updates with Jeff and our podcast with the ICDR as well. So thank you everyone. And we will be back.  Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.  Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.  All rights reserved.  Transcript is auto-generated.

Mehak Oberoi, Legal Head/General Counsel for GE Vernova, Hydro Power, joins Niyati Ahuja to discuss the importance of lawyers understanding business needs and the intricacies of construction disputes, emphasizing the importance of claim avoidance and the challenge of finding the right arbitrators for a case. The conversation covers top tips for minimizing risks during the construction phase, including detailed briefings and early involvement of project managers, before discussing the impact of technology on dispute resolution.

J.P. Duffy welcomes Luis Martinez, vice president of the ICDR, and Thara Gopalan, director of arbitration and ADR for the Asia-Pacific region, to discuss the organization and its strategic plans for expansion in Asia. Together, they explore the ICDR's role in the global arbitration landscape, the opportunities and challenges that lie ahead in this dynamic region, and the potential impact of these developments on the global arbitration community. ----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. And with that, let's get started.  J.P.: Welcome back to the next episode of Arbitral Insights, in which we will discuss the ICDR and its Asia initiatives with Luis Martinez and Thara Gopalan, who are both vice presidents of the International Center for Dispute Resolution, or ICDR. I'm J.P. Duffy. I'm an international arbitration partner with Reed Smith, based in New York, that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai where I previously practiced. I also have the good fortune to be listed on the ICDR arbitrator roster and to regularly sit as an arbitrator in ICDR Matters, as well as acting as counsel in arbitration governed by the ICDR rules. We're very fortunate to have with us today a repeat guest, Luis Martinez. Luis is the vice president for the ICDR, which is the international division of the American Arbitration Association. Luis is responsible for their business development covering the East Coast of the United States, Latin America, the Caribbean, the EU, and the UK. He's co-chair of the ABA's International Arbitration Committee and an honorary president of the Inter-American Commercial Arbitration Commission. He's admitted to practice in New York and New Jersey and is a dual citizen of Spain and the United States. And our third guest today is Thara Gopalan. Thara leads the ICDR in Asia and is based in the organization's Asian headquarters in Singapore. Thara brings extensive experience in commercial disputes to the table. Prior to joining the ICDR, she was a commercial disputes attorney, representing clients in international arbitrations and at all levels of the Singapore courts. Her expertise spans a wide range of industries, and she has a proven track record of successfully navigating complex legal issues, including high stakes to bet the company disputes. So as you can see, we have excellent guests today, and Luis and Thara will be able to tell us not just about the ICDR's ongoing initiatives around the world, but in Asia in particular. So we're really looking forward to hearing their insights. Let me just set the table a bit by talking for a moment about the ICDR for those that aren't as familiar with it. The ICDR was established in 1996 and is the international division of the AAA, which was itself founded in 1926. The ICDR provides dispute resolution services to businesses and organizations around the world in cross-border matters and administers all arbitrations filed with the AAA that have an international component. While it's based in New York, the ICDR has offices in Houston, Miami, Chicago, Los Angeles, and Singapore. And it also maintains a separate group called ICDR Canada for Canadian disputes. The ICDR has some of the most modern rules in the world, which it last revised in 2021. And you can learn more about those innovations in a podcast I recorded with Luis in April 2021 that's available on iTunes, PodBean, and the Reed Smith website. Now, to give you a sense of the scope of the ICDR's caseload, it administered 848 new claims in 2023 with an amount in controversy of 5 billion. So as you can see, they're one of the largest and most active arbitral administrators in the world. And we're really fortunate to have Luis and Thara here today to talk about that. Now, let's jump right in on that caseload and those caseload statistics for a minute. Luis, of the 848 new cases filed in 2023, what were the top three industries represented?  Luis: Well, thanks, J.P. And it's a real pleasure to join you again on this podcast series and to be here with my colleague from our Asia Case Management Center. To touch base, our statistics are available on our infographics, which we do put one together each year to give some summaries and highlights of our particular caseload. You can find them on our website at icdr.org. But the top three caseloads came in using international arbitration, the ICDR system in the technology sector, the international construction sector, and international financial services. Those are the top three groupings we saw last year in 2023.  J.P.: Now, Luis, that's interesting to me. I think the third category you mentioned was international financial services. Can you expand on that a bit? Because that's an area that I think is underrepresented in most institutions in the international arbitration space.  Luis: Sure. They cover a range of different subtypes in the financial sector. There could be cases involving the financing of infrastructure projects. There could be cases involving financial documents in M&A agreements or shareholder agreements. It is an interesting cross-section, and it is an area that we are focusing on, not only in the international sector, but also working with our colleagues in the domestic divisions. So I think that with the construction and the technology caseloads are areas of focus for us.  J.P.: That's great to hear. Now, Luis, tell me a bit more, too, about the technology sector and the types of cases you're seeing there.  Luis: Sure. And that has been an expanding caseload for us in the last several years. The largest subtypes of these cases, they include, for example, software system developments. We have cases in related to that with partnership and joint ventures. You could have subcontracting agreements with independent contractors and, of course, licensing disputes. An interesting fact that goes with that is that over two-thirds of these technology cases, they actually settle prior to an award hearing and 28% prior to incurring any arbitrator compensation at all. As you know, we do a great deal at the outset to try to explore any procedural efficiencies. As we covered in the rules, the mediation step is actually obligatory with us unless the parties opt out. We will be amenable, of course, especially if the case falls within the appropriate range, use the expedited rules. So whatever the institution can do to bring the parties together and try to get these things settled at the earliest possible step is something that we try to explore.  J.P.: That's really interesting. And I guess it's unsurprising to me that the technology sector would be so highly represented in the case statistics, because we really are seeing a lot more cross-border technology transactions, both in software, hardware. I mean, I think all the different facets of the technology sector, which is really, really broad. So that's pretty interesting. What are some of the other industries, Luis, that you're seeing cases come from?  Luis: The other top leaders that use our rules are the real estate. We have entertainment cases. We actually are the administrators for the International Film and Television Alliance that also has opted to use our rules. Insurance, energy is very important. We have subgroups, by the way, that we've created joint teams internally, combining international and our commercial colleagues to focus on various sectors. So energy, construction, life sciences, financial services are all areas where we're pooling our resources and studying the market and seeing how best to position our domestic and international services. Energy is very important. And I think, you know, the subtopic of that, of course, obviously the upstream and downstream types of disputes, but certainly the ESG-related claims that we're going to be seeing and we're forecasting that that's going to be on the rise, Cases brought to mandate perhaps climate change-related policy or conduct. Cases brought to seek financial redress for damages associated with climate change, etc. And I think the energy sector is going to see a surge on that and probably some other sectors too because it's not limited only to the energy sector.  J.P.: That's really interesting. And just to circle back on one of the earlier industries you mentioned, it's kind of fascinating to me. I've had the opportunity to sit as an arbitrator and to act as counsel in a few entertainment cases. And that's a sector globally that I think gets overlooked on occasion. People tend to not realize how broad that industry is and how much cross-border activity there is in that industry. So pretty fascinating.  Luis: It also plays a large part in our history. I mean, as you mentioned, the ICDR was started in '96, but going far back as 1927, we had a foreign division. And in the 50s, we also worked with the motion picture industry, which really helped us establish offices throughout the country because they wanted to have local offices in many locations where they have theaters. And that really led to our national infrastructure to provide ADR services in the United States.  J.P.: Interesting. I was not aware of that history, but that makes an awful lot of sense. Now, let's turn to Thara for a minute, just to sort of talk about that caseload as well. Thara, how many of those cases had an Asian component to them?  Thara: So we're seeing about 351 Asian parties use our services in 2023. A lot of these parties come out of China, about 174 Chinese parties. And our second largest user is India at about 32 parties. We've got some uses in Central Asia as well as Southeast Asia and Korea as well. Those tend to really focus on construction as well as energy projects.  J.P.: Interesting. So just my sort of back of the napkin calculation, a little over 40% of the cases have an Asian component to them, if I've understood you correctly.  Thara: Absolutely right. 351 out of 848.  J.P.: That's great. And then of those users, predominantly China first and then India second.  Thara: That's correct. So China from really all over the Chinese market, whether that's Beijing, Shanghai, Shenzhen, and Hong Kong parties as well. But we're seeing that across a whole gamut of industries, a lot in technology, but quite a significant number in construction as well.  J.P.: That makes a lot of sense. And I would assume, I may have missed you saying it, but I would assume energy is a relatively significant one there as well.  Thara: That's absolutely right. You'll find that a lot of Chinese, Japanese, and Korean contractors are building some of the energy projects that we're seeing in Southeast Asia. And there's a big sort of energy transition era that's going on in Southeast Asia. So a lot of Chinese parties are involved in that, and we're seeing some of that work come to us.  J.P.: That's great. Now, amongst the Indian parties that you're seeing, what sectors do those cases typically fall into, if any?  Thara: Some of those cases are pure commercial cases, things like contractual disputes, partnership disputes. But we are seeing some technology cases, especially from parties situated in Bangalore. And we've got a small number of construction and infrastructure cases as well.  J.P.: Interesting. I would suspect that you're going to see many more technology cases. And I'm also surprised to hear that there aren't more life sciences cases. But I think that is probably coming as well, because those are two sectors I see an awful lot in the Indian market. Unsurprisingly, given the makeup of the Indian economy.  Thara: Yeah, you're absolutely right. I think pharmaceuticals, life sciences is a really big economic driver for India for some time now. And we probably will expect to see a lot more of cases that come out of those regions. But for the time being, really a lot of the stuff that we are seeing is in that technology and construction space.  J.P.: That makes a lot of sense. That makes a lot of sense. Now, amongst the caseload or the 2023 caseload, how many cases were emergency cases?  Thara: Right. So we've actually had about 160 cases up till the end of 31st December 2023 that are emergency arbitration cases. And quite a lot of these disputes, we had 72, I think, where emergency relief was granted either partially or in full. 24 of those cases, parties settled. 21 cases, the application was withdrawn.  J.P.: Interesting. Well, it's such a high number of cases settling at the outset. I think that's a real testament to how the ICDR does things because I'm not sure that's the case with every institution. So kudos to the ICDR for its administration plans.  Thara: You know, some of the things that are really interesting about the ICDR, and I love sharing this number because it's just astonishing, really. We have 72% of cases settle out of all arbitrations that are filed with us, and over 30% of those settle without any arbitrator compensation. That's based on a study that we commissioned in 2016, and we are in the process of updating that, but we expect those statistics to be roughly similar.  J.P.: Interesting. Now, will those statistics also break out? I know you said about 30% of those cases will settle without any arbitrate or compensation. Will it also break out, for instance, cases that settle before the final hearing or after the preliminary hearing conference? It would be interesting to see. And I don't even know how you would capture that easily, but the various stages of which cases settle.  Thara: Well, I've got to discuss that with my data analytics team. I don't think they're going to be my best friends if I make them do all that work. But certainly 72% before final award is just kind of remarkable. I don't think I've seen comparable statistics anywhere else.  J.P.: Yeah, I certainly haven't heard of any, so that's pretty amazing.  Luis: I will add that technology that we are implementing, incorporating AI, has been the focus for us, especially with the arrival of Bridget McCormack, who's really emphasized the need to update and focus on innovation, on the incorporation of AI. We're really looking at what we can do to simplify the capture and tracking of our data with these new tools. And the team has been increased, including adding some data scientists as well. So we all know that data is king, especially in this field. Obviously, we're bound by confidentiality to a great extent. But where we can pull relevant data from the actual process without revealing the identity of the parties, I think will really be helpful for the marketplace to understand the ICDR caseload and system. So it's an exciting time for us with this focus on AI.  J.P.: Yeah, that's really great to hear because it's such an interesting dichotomy that confidentiality is so important and such a valuable aspect of the process, but it does hinder some of the ability to get transparency and understanding from the outside. So finding a happy medium there with tools like AI is really important. Let's transition a bit to talk somewhat more about the ICDR's Asia plans. Thara, you've obviously been on the ground in Singapore for quite a while. Why don't you tell us a little bit and tell the audience a little bit more about the ICDR's presence in Asia?  Thara: Thanks, JP. So we've actually been in Asia since February 2006, where we were invited to come into Singapore to help them with their plans to grow Singapore as a hub for arbitration. We officially started an Asia case management center in 2019, and that's staffed with full-time case managers who handle a substantial portion of our Asian caseload. Apart from our sort of formal setup, what we've been doing in the last couple of months is really establishing inroads into the markets directly across Asia. We've refreshed something called the ICDR Asia Advisory Council, And that's chaired by a leading arbitration practitioner, former president of the CIArb, Francis Xavier Senior Counsel. And we've also set up national committees in Singapore and the greater China region. We will shortly be setting up a committee in India. And we're really excited about that because the whole gamut of AAA-ICDR is actually going to descend on India to launch that in a couple of weeks.  J.P.: That's great to hear. That's great to hear. Well, Francis Xavier is certainly an excellent person to help with that effort. And it's really wonderful to hear about the India Initiative, because that is such an important market. It's one I've practiced in or dealt with, I should say, more accurately for well over 20 years. And it's just such a rich market that really has so much possibility. So really wonderful to hear. Now, in addition to India and China, what are some of the other markets that the ICDR is focusing on?  Thara: Well, we're really looking at sectors, I want to say. So technology and construction are the focus, and we're sort of looking at geographic markets based on those sectors. So for the time being, apart from China and India, there's actually a lot that's going on in Southeast Asia at the moment. Malaysia, Indonesia, and Vietnam all have a ton of infrastructure projects that are up incoming and plans for the construction of significant infrastructure in the next five to 10 years. And a lot of that is being built by Chinese contractors, Japanese contractors, and Korean contractors, in addition to the very large domestic players in each of these markets. So that's really where a lot of our attention is going to be focused on for the next couple of years.  J.P.: Wow, that's really impressive. That's really impressive. Now, what are some of the other initiatives that the ICDR has to strengthen its ties in Asia?  Thara: What we're really focusing on now is trying to spotlight thought leadership that's coming out of Asia. We've got a ton of really clever lawyers all over Asia, and we're trying to give them better opportunities to have a greater voice, rather, on the global stage. So that's something that our national committees are working really hard to do. In Singapore, that's led by Theo Shen Yi Senior Counsel, and in Greater China, that's led by Dr. Zhang Lixia. So there's a bit of a focus on trying to ensure that there's pathways for younger practitioners who are up and coming in the market, that we tap on the expertise of our extremely qualified and senior international panel of arbitrators, but also that we spotlight or we shine the spotlight rather on groups that may not necessarily have as much access to high-powered arbitration careers. So in some jurisdictions, that might be minority racial groups, and in other jurisdictions, that might be gender-diverse groups like women in arbitration, for example. So those are some things that we're really trying to do to ensure we make a positive difference in the market, but also that we're spotlighting local practitioners as we engage in our efforts in those markets.  J.P.: That's excellent to hear. Now, let me drill down on that a bit because some jurisdictions are obviously very well known in Asia for being thought leaders. And the one in which you sit is an obvious one to me. India is certainly an obvious one, and you see a great deal of thought leadership coming out of China as well. But what are some of the specific ways that you're trying to increase visibility for practitioners in those jurisdictions? Is it through increased speaking opportunities, increased publication opportunities. How are you going about that?  Thara: So you've hit the sort of nail right on the head. Speaking opportunities and publications are the main focus of these committees. We will be bringing really substantive programs that involve genuine thought leadership, not purely sort of anecdotal recollections through to major cities across China as well as India. In China, that's Beijing, Shanghai, Shenzhen, Hong Kong. In India, for a start, that's going to be Bombay, Chennai, Bangalore, and Delhi. And of course, in Singapore, we're fairly small in Singapore. So that's really going to be all over Singapore that we're trying to do these programs. But apart from programs, we do have publications that have always been run by the AAA-ICDR, and we're looking to increase Asian content on those publications. Be that the AAA-ICDR blog for sort of short-form contributions up to about 2,500 words, or the AAA-ICDR dispute resolution journal, which is for slightly longer-form content.  J.P.: Excellent to hear. Excellent to hear. And let me put a very quick plug in for the dispute for the DRJ, which is the journal. I published articles in there. I always encourage our associates at Reed Smith to do so. It's a really excellent publication. It's really wide reaching. And it's a huge, huge benefit to you personally to put something in there in the audience. So definitely submit articles. It's a really top-notch publication and a wonderful way to increase your exposure yourself. So excellent to hear that you're going about that. Now, I'm sure we could talk all day. And what I'm going to do is rather than continue to do that, I'm going to reserve my right to call you guys back. But let me move on before I do that to some of the ICDR's other plans. I don't want to lose sight of those before we conclude this podcast today. So one of the things that's really amazing is the AAA has been very active recently. Luis, you mentioned Bridget McCormack taking over as president about a year and a half ago. You talked about some of the IA initiatives. There's been the recent ODR.com acquisition. With all that and the fact that the AAA is coming up on its centennial anniversary in 2026, which is an incredible achievement, there's a natural opportunity there for the organization to reflect upon its future objectives. What would you like to see the ICDR accomplish in the next five years?  Luis: Well, I really like the direction we're going in with exploring our traditional caseloads. Of course, we always start from the position that we want to make sure our services, the administration of arbitrations and mediations are at the top level that they can be. And we've looked at that and how to improve those mechanisms and the related technology in our administrative platforms. But I think there's so many new opportunities for us. You were discussing some particular caseloads. Certainly, you're aware of all our initiatives in the life sciences sector. We have an advisory committee that focuses on that particular market. We're looking at enhanced arbitrator selections and lists that have high levels of experience for those particular types of disputes. Other markets that I think are important is we're seeing a surge in cases that we administer involving sovereigns, states, state-related entities, for example, in Latin America, in construction and infrastructure projects, where the participating sovereigns actually design the arbitral provision they're going to offer perhaps a potential for an investor. And we've been selected to administer a number of caseloads following that type of mechanism and example. The ODR acquisition, which is relatively new, presents us with a number of opportunities. The ODR platform is incredibly sophisticated. It has some incredible features to be able to customize really on a dime for the needs of a particular sector or a caseload. It has language capabilities. And we're looking now as a team, all of us to explore in our assigned regions, what potential opportunities there are to handle caseloads that we would be hard pressed to bring in because we didn't have a tool such as odr.com. So I think that opens the door for us to explore some emerging markets. So looking at technology, looking at emerging markets, looking at cases with sovereigns and the focus on the sectors are all very promising directions for us. And I should really mention, by the way, that the AAA itself has invested considerably and expanded the ICDR team. We now have three new people working in just the business development side. And I think that expansion will allow us to explore opportunities that there were just not enough hours in the day before to do.  J.P.: Wow, that's a very ambitious program. And that's wonderful to see. Not surprising given the trajectory that the AAA ICDR is on, but wonderful to hear. Now Thara, where would you like to see the ICDR in Asia in the next five years?  Thara: You know, I think apart from innovations in procedure and technology, where I think we've really been leading the charge, what I do want to see is us focusing on a lot more appropriate dispute resolution, as opposed to purely alternative dispute resolution. The AAA ICDR really does have the full suite of dispute resolution services, everything from neutral evaluation, mediation, arbitration, as well as disputes, avoidance boards for construction. So we want to see parties have the information and have the resolve to be able to use the most appropriate mechanism for resolving their disputes across all disputes that they come across.  J.P.: Excellent. That is truly, truly, again, a very ambitious and sage outlook. And I'm quite certain you're going to accomplish it with the efforts that you're putting behind it. Well, one thing I just wanted to circle back on quickly is Luis mentioned ODR.com. We are going to have an episode released in the near future where I speak with Jeff Zaino, who's the vice president of the commercial division for the AAA. And he discusses the ODR acquisition a bit more as well. I definitely recommend that to listeners because it's a truly innovative move by the AAA and a really, really good reflection on how forward-thinking the AAA ICDR is. Well, we've got a pretty good idea of what the ICDR has been doing around the globe and in Asia in particular, and we've got a very good sense of where the ICDR would like to see itself in the next five years. So I would definitely like to reserve my right to bring you both back to hear how that's gone because I'm quite certain with all the forward-thinking and all the effort behind it that the ICDR will be highly successful in all its initiatives. But with that, that will then conclude our update on the ICDR and its Asia initiatives. I want to thank our guests, Luis Martinez and Thara Gopalan from the ICDR for their invaluable insights. And I want to thank you, the listeners, for tuning in. You should feel free to reach out to Luis or Thara with any questions you might have, as I'm sure they'd be happy to speak with you directly. You should also feel free to reach out to Reed Smith about today's podcast with any questions you might have. And we look forward to having you tune in to future episodes in the series. So thank you, Luis. Thank you, Thara. And we do hope to have you back soon.  Luis: Thank you.  Thara: Thanks so much for having us, J.P.  Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.  Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.  All rights reserved.  Transcript is auto-generated.

Gautam Bhattacharyya welcomes Rebeca Mosquera, Reed Smith senior associate and the President of ArbitralWomen. Rebeca shares her career journey, detailing her path from Panama to Alaska, and then to New York, the mentors who have shaped her path, and the inspirations that fuel her future. The conversation then discusses the significance of ArbitralWomen, its notable achievements to date, and Rebeca's vision for the association's future reach and impact.  

J.P. Duffy welcomes Serena Lee, the new President and CEO of the International Institute for Conflict Prevention & Resolution (CPR), for an engaging discussion about CPR's foundational principles, its unique origin as an organization dedicated to helping corporations, and the influential role it plays in the global arbitration community. Serena explains CPR's inner workings, delves into recent case statistics, and shares her vision for CPR's future. ----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. And with that, let's get started.  J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the International Institute for Conflict Resolution, known in the legal community as CPR, with Serena Lee, who's CPR's new president and CEO. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England, and Wales, and the DIFC courts in Dubai, where I previously practiced. I also have the good fortune to be listed on the CPR arbitrator roster, which is called the Panel of Distinguished Neutrals. With me today, as I mentioned, is Serena K. Lee. Serena is a lawyer qualified in New York who previously practiced on the West Coast. Before joining CPR, Serena served as the Vice President of Operations for JAMS in San Francisco, where she managed three resolution centers, San Francisco, Santa Rosa, and Seattle, and oversaw approximately 85 neutrals. And before that, Serena was vice president with the AAA in the construction and commercial divisions, first in Seattle and then San Francisco. So as you can tell, Serena brings a wealth of experience and perspective to her new role and to the audience. And we're thrilled to have her because she's a very recent addition to CPR. She's going to give us some updates on everything that CPR has been up to and what she plans for CPR to do. Before we begin, let me just give some brief background information about CPR itself for those that aren't as familiar with it. CPR was established in 1977 in New York by James F. Henry to help businesses find better ways to resolve commercial disputes. CPR does this through the CPR Institute, which acts as a think tank and a thought leader, and through the CPR Institute's subsidiary, CPR Dispute Resolution Services, which provides dispute resolution and prevention services to users, including the administration of CPR's arbitration rules. CPR has a unique origin because it was established by in-house counsel from Fortune 100 companies to bring together corporate counsel and their law firm clients to collaborate on ways to reduce dispute resolution costs by finding alternatives to court litigation. Today, CPR has a membership community that comprises corporate counsel, law firms, academics, and neutrals. Over the decades, this unique membership community has produced a variety of thought leadership pieces, and innovative yet practical rules for arbitration and mediation, as well as the CPR pledge, which more than 4,000 companies and 1,500 law firms have signed to show their commitment to considering ADR for the speed resolution. So as you can tell, CPR, while it is an arbitral administrator, does a lot more and is relatively unique in the space in the way that it operates. So with that, let's turn to Serena a bit, because I want to hear from her about everything that CPR has been up to. Serena, welcome.  Serena: Thank you so much, JP. Pleasure to be here. Good. J.P.: Well, we're so glad you could join us. And I think, you know, one of the first things that our listeners would love to know is, how many cases did CPR administer in 2023?  Serena: Well, thanks for the questions, J.P., and you're right. I think often people are interested in the number of cases CPR administered. So CPR Dispute Resolution, our arbitral provider subsidiary, administers cases, including complex commercial arbitrations, and offers a number of related services such as mediation, fund holding, appointment services, and others. Our first rule set ever published was actually a non-administered arbitration, and we offer services to help parties through those ad hoc processes. So there's really not a straightforward answer to your question because it depends on how we dissect the data. Oftentimes, parties don't tell us if they are using CPR for their ad hoc arbitrations. Sometimes the parties will come to us for only parts of the services they're seeking, such as for fund holding or for appointment or for conflicts checks. So I don't have a specific number of how many cases CPR has administered based on the data I just shared with you. But I can tell you that CPR dispute resolution handles fewer cases each year than the AAA or JAMS. But because we're smaller, our team is oftentimes very high contact and responsive to questions. So I guess it's all good.  J.P.: That's a great answer. Now, it highlights a point, too, that I think is pretty interesting. What year, if I remember correctly, CPR introduced administered rules in sometime around 2010. Is that correct?  Serena: Close. 2013 was when our first set of administered arbitration weeks were located.  J.P.: Okay, so Serena, so the administer rules got introduced in 2013, and if I've understood you correctly, CPR still gets used relatively frequently by parties, or the CPR rules do, for non-administered cases.  Serena: Correct.  J.P.: What's the breakdown for administered cases between domestic and international cases?  Serena: The majority of the cases that we are aware of were domestic, but we also have received international cases. They're devoted to certain regions, such as in Canada and in Brazil, being maybe our two most prominent areas where we have received international matters.  J.P.: Interesting. And are there particular industries that feature more prominently in the cases than others?  Serena: Well, from the industries that we've seen in the past few years, that they are, as many providers also experience, they come from a wide variety of industries and sectors. Employment, healthcare and life sciences, energy, oil and gas, accounting and financial service are some of our largest caseloads. We also see franchise, insurance, technology, sports law, construction, professional fees. I'm rattling off some of the ones that come to mind. Of course, straight commercial matters as well. And we do see sometimes unfair competition matters come in as well.  J.P.: Interesting. So it's really a pretty broad range of disputes that CPR helps administer.  Serena: Correct.  J.P.: That's great. Now, how much of that is driven by CPR's membership? And it may be worth it when you answer that just to give a little bit of background on that and to explain how the CPR membership process works and maybe talk a bit about who some of the CPR members are. So to probably take this time to distinguish between the CPR Institute, which I'm going to refer to as the Institute, and CPR Dispute Services. So the Institute, of course, as you had mentioned, J.P., was started in 1977. And that is the think tank or the thought leadership portion of CPR and essentially why we exist. Now, CPR dispute resolution was created some three years ago to help parties who were interested in administered arbitrations or other ADR services to help administer those. So they were created as a subsidiary under the Institute to do so. There is a division between the Institute and the work that the Institute does and administration and dispute resolution services that CPR Dispute Resolution provides. Those who are interested in coming into the Institute as members of the thought leadership portion of CPR join as members and they can join as individuals, they can join as firms or as corporations. We have some of the largest organizations to the smallest companies in America who are interested in joining CPR Institute because they're interested in being part of the dialogue and workshopping ideas and solutions to issues they're seeing out in their business landscape. And law firms who also join as well as academics who want to contribute and also listen to what the businesses are asking for and what they're trying to resolve to make sure that the processes are efficient, that they're fair, that they are practical in a business context, and so forth. So I make mention of that because the Institute has very little to do with the case management. The only thing that the institute provides for CPR dispute resolution are the rules and the protocols are promulgated within the institute are then pushed over to the DR or the Dispute Services to issue out and to use. So those who file cases with dispute resolution services have no real interaction with the members. I hope that's clear.  J.P.: It is clear. Yeah. And I think there's a lot to unpack there that's really fascinating and different than a lot of other institutions. So let me just take that in pieces if I could. So the Institute has, that's what has the 4,000 members and the 1,500 law firm members. Is that right?  Serena: Yes.  J.P.: Okay. What are some examples of say fortune 500 companies, if you don't mind sharing that are members of the Institute?  Serena: Certainly, I mean, I can't name all 4,000, but if you actually just jump onto our website on the CPR Institute Board of Directors, you'll see some of the board members come from prominent companies such as Microsoft, Amgen, ConocoPhillips, I'm trying to think, Palo Alto Networks, and others. And the law firms, the biggest law firms in the country are part of the Institute. If you also look at our corporate leadership dinner brochure that's also online, you'll see some of the sponsors of the Institute listed, both corporate as well as law firm contributors.  J.P.: Well, that's really interesting, Serena. So if I'm understanding it correctly, those members that you mentioned of the Institute are the ones that are creating the rules pursuant to which cases may be administered. Is that right?  Serena: Well, it's a little bit more nuanced than that. The members can send associates and their in-house counsel and members of their in-house team to be part of committees within the CPR Institute, as well as law firms who also can comprise of neutrals and academics and attorneys from both maybe the more plaintiff's side and defense side. And they are the ones who workshop the protocols as well as the rules. So for instance, right now we are updating all of our rules as we do every five years and within the arbitration rules committee revision team, you'll see that there are members within all the groups I just mentioned, all the stakeholders who are involved at looking at the rules and discussing whether there should be updates.  J.P.: Got it. So really, at the end of the day, is it fair to say the rules are being pretty heavily influenced by both potential users and law firms? Serena: Yes, I would say that the rules and the protocols are created to maximize efficiency. Obviously, the businesses are in the business of not being in law pursuits, at least our corporate members aren't. And also to make sure that the arbitrators who may have some input into whether the rules can be refined or tweaked to promote efficiency or expediency. So I would say that the end users have a lot of say into the rules. And also the academics who are in the space of dispute resolution are part of the committee and part of the conversation to ensure that the rules and the protocols that we're issuing meet due process.  J.P.: That's really great. I mean, I think that's a really unique feature of CPR, that there's so much input from the actual users and the law firms that will likely be recommending it. It's a really unique feature that probably, if I understand it correctly, stems from the way that CPR was created. Is that correct?  Serena: It's exactly correct. Now, because I worked with the two other arbitral institutions, the largest ones in the U.S., I can say for certain that I find the rules and the refinements of the CPR rules to be different based on the feedback from the field.  J.P.: Interesting. Now that raises an interesting transition point, Serena, because you've been in this role, you haven't been in this role terribly long, right? When did you join CPR?  Serena: My first day of CPR was on April 1st. So it's just been four months.  J.P.: Wow. Okay. So still relatively fresh in the role. How have you found it so far?  Serena: It's been just very, very enriching, I think, for years after being, decades of being on the provider side, to finally work with the end users and to talk to the people who are drafting ADR clauses and trying to think on how to avoid disputes early on or to resolve disputes as quickly as they can when they arise in a way that's fair and economical and business friendly. Meaning for everyone, all the parties involved in disputes. I'm really enjoying the fact that I can share the other side of the equation, so to speak, feel as passionately and as dedicated in resolving disputes in a way that can minimize cost and damage to relationships. That's been really rewarding.  J.P.: I like that. You mentioned a way of minimizing damage to relationships, because it's something that I see a lot. I practice a lot in the life sciences space, and I find that arbitration in particular for those types of industries that have a lot of long-term collaborations like life sciences and some others can be really beneficial because it does allow parties to continue doing business together afterwards in a way that doesn't often happen with litigation. So that's a really interesting point to raise. And it sort of me to something else I wanted to just touch on too. Like, are there particular industries that you think CPR is better suited to than others?  Serena: I'm racking my brain because I frankly can't think of an industry that could not benefit from the structure of CPR dispute resolution. I suppose if the parties in a dispute are interested in preserving relationships and have a say in the rules that are being used to resolve their disputes, and they want to make sure that the rules are ones that they can be assured that they are efficient, then they should know that the rules and the process by which CPR Dispute Resolution follows are based on the end users from its creation. I also think that because we are not as big as the other arbitral providers, our case managers are very responsive and experienced, not that they aren't in the other providers, but because our caseloads are smaller, the case managers at CPR dispute resolution can talk through the variety of a la carte services that are available to parties. If they aren't interested in full-blown arbitration, there is something different that we can talk to them about. Our complete case platform is a very secure case management system that was built specifically for dispute resolution. And since we accept submission agreements and our roles were developed by task force of all the stakeholders we just talked about, I think that there isn't a industry or a group that I don't think wouldn't benefit from using CPR, dispute resolution service. I know that seems perhaps a bit self-serving to say, but I think that might be true given the fact that come from the other providers as well.  J.P.: Yeah, no, not self-serving at all. I mean, I think it's the best endorsement you can give. You know, it's a really broad statement that's reflective of how broad the Institute membership is and CPR's genesis. Well, now you've been in the role for four months, you mentioned. So let me ask you this, what would you like to accomplish for the remainder of 2024, given that we're sort of rolling in towards the end of the year?  Serena: Well, I'm very much looking forward to amplifying CPR's mission, our resources, and to involve incredible members here in the U.S. and internationally. We've been primarily focused in Europe, as I mentioned, in Brazil, and I imagine that in subsequent years we'll expand more broadly to other countries. We are actually right now testing a new membership concept to connect our members into areas where they live and they work. So to that end, what I've planned to do is to launch our inaugural regional chapter of CPR, something we've never done before, in Seattle in November. I chose a city that had very strong corporate support. As I mentioned, Microsoft has been a corporate member of CPR for many years, and one of the board members of CPR, John Palmer, is a huge proponent for CPR and its resources. And I also chose Seattle for its vibrant legal community that actively uses alternative dispute resolution.  J.P.: That's great. Now, tell the listeners a bit more about what you mean by the regional chapter.  Serena: Sure. So I'm hoping that these regional chapters can connect and provide those in the legal community with an opportunity to engage in the same thought leadership on a local level and also to consider CPR. In, I think, the ADR space sees our role as the conveners of conversations and discussions. So while we can have national and industry-specific conversations remotely in this day of post-COVID discussions, we also wanted to bring an in-person experience to the local chapters that we are starting. It will be a pilot for us in Seattle. And what I'm hoping that we can provide for a local chapter of CPR is an ability to bring all the local general councils of the large corporations based in that city, as well as the law firms, the law schools, as well as the neutrals who practice in that area to come together, again, to get to know each other in a way that is meaningful so that they may learn from each other to hear each other's perspective in real time. And then to broadcast or transmit their ideas from a regional chapter onto the national roster. There's no reason why the thought leadership can't originate from a regional chapter such as Seattle.  J.P.: That's great. Now, what are some of the other regions that you're envisioning regional chapters for?  Serena: That's hard to say. We have had a very, very strong presence in Houston for decades now. The energy, oil, and gas industries have been great supporters of CPR. I surmise this because they are a very small industry where there are lots of repeat players in the space. So because we're conveners, I think that we may look into Houston as our next regional chapter. And then I think I'll have to see. I think there has been an appetite in other areas such as Chicago. And of course, I'd love to be able to start a chapter in California.  J.P.: Right. Well, and obviously, California is such a large market. You could probably do one in Northern California and Southern California separately. But it remains to be seen, I guess, where you would want to go.  Serena: Correct. I'm also very interested in making sure that we are actively engaged with our members of arbitrators. Our panel of distinguished neutrals has about 600 members, and perhaps I'm showing my years of working with the providers, but I do think that the arbitrators, mediators, and other neutrals within our panel are a hugely important component within CPR, and I like to engage with them in more ways in the coming years. And I know that our law firms and our corporate members really appreciate the role of CPR as the conveners. So to have the opportunity to talk to neutrals and academics about thought leadership in the dispute resolution space is very important to them.  J.P.: That's great. Well, I think it's, you know, from my perspective as both someone who acts as both counsel and an arbitrator, I think it's really great when an institution does solicit the views of arbitrators because in so many ways they are the front lines of what's occurring, right? I mean, obviously end users have the biggest stake and should have the largest voice in my view because they are the people that are impacted by all this most. But certainly arbitrators do see, what works well, what may not work as well, areas that can be improved, things that might be made more efficient. So it's really important, in my view, to solicit the arbitrator's views. And that's a really great initiative.  Serena: Thank you. And I actually think that it's almost vital to ensure that everyone that's in the ecosystem of dispute resolution understand the needs and expectations of each other and to make sure that the rules and protocols that we are promulgating and asking our neutrals to use in their processes make sense and that there is buy-in. And if there isn't buy-in, if there is a way to iterate a better system, that we capture that feedback and to integrate innovations and refinements to process as we move forward into the future.  J.P.: That's great. I mean, absolutely. It's an inclusive environment that considers all the different stakeholders and all the different voices, always produces a better result. So wonderful to hear that that's something that you're considering. Now, that would be for 2024, which is a pretty ambitious agenda, it sounds like. What would you see or where would you like to see CPR in five years?  Serena: Yeah. Well, in five years' time, I, of course, hope to continue to build on an even stronger CPR institute that can work collaboratively with additional stakeholders to identify ways that parties can resolve their disputes more effectively. There's sometimes, I think, a sentiment in the legal community that the use of mediation and arbitration is now a mainstay tool in resolving disputes, in legal disputes. But I still strongly believe that mediation, as is being used now, is still more evaluative. It'd be great if the parties are open to a more transformative process. And I've seen over the years, unfortunately, arbitration being conducted more like litigation. And the benefits of arbitration, namely being more streamlined, quicker, and more cost-effective, and so forth, are being eroded by attorneys who are either not understanding the advantages of arbitration's more informal process, and also arbitrators who may not be willing to streamline the process. So my hope is that CPR can continue to help keep the dialogue of better dispute resolution process, open, engaging, and responsive to the expectations of the parties who go into mediation and arbitration. CPR dispute resolution services, which of course, as I mentioned, only issued out its administered rules in 2013, has shown steady growth year over year as more companies are either submitting their disputes to CPR dispute resolution or they're opting to write CPR rules into the contracts because they're comfortable with the rules and the process designed by the end users. So I'm hoping that we can continue to grow CPR dispute resolution services as well.  J.P.: It's a really important agenda to take on because there's absolutely a dialogue going on in the community right now that you're seeing on various platforms, particularly from arbitrators about, and some of the arbitrators that have been around for a little bit longer, about arbitration becoming too much like litigation, becoming too similar to court procedures, and becoming too burdensome to really achieve its purposes. And it's interesting to see that discussion arise because it sort of goes on hand in glove with, you know, the explosive growth of arbitration as an alternative process. And if it really becomes too much like court, then it's not really an alternative to court. It's just another sort of venue for promulgating those types of processes, which really defeats the purpose in some ways. So it's great to hear the CPR is taking that on and that you want to promote revisiting really what arbitration is about.  Serena: Correct. And I think that we must be vigilant and not rest on our laurels that we think that alternative dispute resolution is being used widely does not mean that it's being used as well as we probably hope or have promised parties at times.  J.P.: Yeah, absolutely. Absolutely right. The mere fact that somebody is doing something one way doesn't mean they're doing it right. That's a very, very, very good point. Right. Well, it sounds like if I'm doing my math correctly, in 2027, CPR as a body will have been around for 50 years. So it sounds like you've got a pretty good handle on where you want to see CPR when it hits its 50th anniversary. So that's pretty interesting.  Serena: That's right. We are actually excited to celebrate our 50th. I believe that the Federal Arbitration Act, I think, goes first in celebrating its 100th year anniversary in 2026, I believe.  J.P.: That's right.  Serena: So in 2027, we'll celebrate our 50th.  J.P.: Yeah, or maybe it's 1925. I can't remember, but there's certainly...  Serena: Oh, I think you might be right.  J.P.: I think they're certainly right around there. Either way. Well, good. Well, there's a lot of ground we've covered, and I think we could probably keep going all day. But it might make more sense to reserve my right to invite you back for a future update, because you've obviously got a lot that you intend to do, and it will be great to hear about how all that execution has gone on all these plans.  Serena: Well, JP, I'd love to come back. I really enjoyed our time together and this experience and opportunity to talk about CPR. And my new role has been welcomed. And I hope that in five years' time or maybe in two years' time, I can come back and report on our efforts to expand our regional chapters and to report back on other projects that we are working on currently.  J.P.: Absolutely. And I'll tell you right now, it'll be a lot sooner than two years time. It's certainly sooner than five years. I'm a little more impatient than that. So we won't wait that long, but thank you. It's been a real pleasure. That will conclude then our discussion of CPR. I want to thank Serena Lee for sharing her thoughts and vision for CPR. And I want to thank you, the listeners, for listening in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should feel free to reach out to Serena as well. I've had that discussion with her. I know she'd be happy to answer any questions you might have. We look forward to having you tune in for future episodes in this series. And we look forward to follow-ups with Serena in the future. So thank you very much.  Serena: Thanks, J.P.  Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.  Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. All rights reserved. Transcript is auto-generated.

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New York international arbitration partner J.P. Duffy discusses the Singapore International Arbitration Centre's (SIAC) current accomplishments and future plans for the Americas with SIAC's registrar, Kevin Nash, and SIAC's director and head of the Americas, Adriana Uson. ----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. And with that, let's get started.  J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the Singapore International Arbitration Center's America Initiative with Kevin Nash, who is SIAC's registrar, and Adriana Uson, who is the SIAC's director and head for the Americas. Let me begin by introducing myself. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration seated around the the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England and Wales, and the DIFC courts in Dubai, where I previously practiced. I routinely represent clients in arbitrations involving India, the GCC, and East Asia, and I also had the good fortune to be listed on the SIAC arbitrator roster. As I mentioned, with me today is, first, Kevin Nash. Kevin is a Canadian lawyer and the SIAC's Registrar. As Registrar, Kevin leads the 25-member SIAC Secretariat in the provision of case management services. Over the course of the past decade, Kevin has overseen the administration of thousands of international cases under all versions of the SIAC and UNCITRAL rules. Under the Singapore International Arbitration Act 1994, Kevin is also gazetted as an appointing authority, serves as the statutory taxation authority, and is empowered to authenticate and certify awards and arbitration agreements. And last but not least is Adriana Uson. Adriana Uson is the director and head of the Americas for the SIAC, where she leads and oversees SIAC's activities in North and Latin America. In 2020, Adriana established the SIAC's first office outside of Asia in New York. She has more than a decade of experience in dispute resolution and and has served as counsel on international arbitrations, as arbitrator, and as the institutional representative. Adriana first joined SIAC as counsel, during which time she administered hundreds of cases across a range of seats and governing laws. She was also involved in the drafting of the SIAC Rules 2016 draft, SIAC Investment Arbitration Rules 2017, and the SIAC Practice Note on Third-Party Funding. Prior to rejoining the SIAC, Adriana was a disputes lawyer at a global law firm where she advised and represented clients in international arbitrations conducted under the auspices of the SIAC, the ICC, ICSID, and the HKIAC. So as you can tell, we have a wealth of knowledge with us today, and we're really, really fortunate to have both Kevin and Adriana with us today. So with that, let's jump right in and hear from our guests. So let me just set the stage a bit by giving some of the SIAC background, and then we'll have Kevin and Adriana chime in on that a bit. So the SIAC is a not-for-profit arbitral administrator that was established in 1994 in Singapore with the objective of providing a neutral, efficient, and reliable dispute resolution institution in Asia. Kevin, can you give us a bit of background on what's gone on with the SIAC over the last 33 years, I guess.  Kevin: Sure. Thanks, J.P. It's great to be here. Thank you to you and to Reed Smith. I'm actually a listener to this podcast, so it's really good to be here. Giving a bit of background, 33 years of operation, SIAC started as functionally a regional center, and you can really see a very compelling growth trajectory. The real proper administration of SIAC's cases started in 2007. You can then see sets of rules in 2010, 2013, 2016. And now we're in the draft public consultation for the seventh edition of the SIAC rules. Along the way, we went in the Queen Mary University of London White and Case Survey is the second most preferred arbitral institution in the world and the most preferred in Asia. And that's really what has helped bring SIAC to global prominence, that we have this expertise in Asia, but we also have parties from all around the world.  J.P.: That's great. And it has been meteoric growth. It's been really impressive to watch. The SIAC didn't exist, as you say, when I first started practicing, and now it's almost default in Asia, if not the default for most parties. And let's talk about that growth outside of Asia a bit. So while the SIAC began in Singapore and has had a lot of acceptance in Asian markets, it is not simply an Asian administrator, as you say. It's really accepted around the globe. What's really been the Singapore secret to that, Kevin?  Kevin: I suppose that's the million-dollar question, or when you look at some of SIAC's cases, is the $7 billion or $10 billion question, is what does Singapore and SIAC have been able to do to put itself at the forefront of international arbitration? When I look at the Singapore arbitration ecosystem, I see language from decisions like the rule of law is applied without fear or favor, and there is an unequivocal judicial philosophy of the facilitation and promotion of arbitration. So it's really the entire ecosystem in Singapore that has helped build up SIAC. One of the most important moments, and Adriana and I were quite involved in this, was in the SIAC rules 2016. Previously, it used to be a default Singapore seat of arbitration. So unless the parties otherwise agreed, if it was left silent, then it would default to a Singapore seat. But because of the popularity in the Americas, the then President Gary Bourne knew that for us to really grow as a global institution, that had to be left to the parties or to the tribunal to decide. So we've got the benefit of the Singapore ecosystem. So you have a very pro-arbitration bench. You have all of the hardware and software, modern legislation based on the UNCITRAL model law. And to a certain degree, it's based on where we are in the world. Singapore, much like New York, is an international center for finance. Singapore has that reputation of effectively being Switzerland in Southeast Asia. And maybe you just can almost encapsulate it by putting out a question that if you were a significant U.S. Entity, would you be comfortable being a moving claimant against a very prominent Singapore respondent? And I think that the answer is overwhelmingly yes. Parties know that they're going to get a fair adjudication of their dispute when they come to Singapore, and certainly when they file a case at SIAC. When I look at that 25 member SIAC secretariat, I am quite moved by the fact that we only have one Singaporean lawyer. So the rest of the Singapore SIAC secretariat are all lawyers qualified in 13 jurisdictions around the world. So I think that gives parties the confidence.  J.P.: Now, Kevin, where are some of those lawyers qualified in the secretariat?  Kevin: You know, I would have to run through the jurisdictions, India, Indonesia, United States, UK, Vietnam, Ecuador, Georgia. I feel like I'm missing a few, Canada, Malaysia. So anywhere in the world where we have our top jurisdictions and particularly where we have those applicable laws at play, we really need to have a lawyer in the secretariat qualified in those jurisdictions. I can think of five years ago in Vietnam, a very fast-growing jurisdiction, because there's a lot of procedural nuances in that jurisdiction, surely we need to have a Vietnamese qualified lawyer. China, we have a fair amount of Chinese language arbitration, so we need to have Chinese qualified counsel. And certainly, we have so many cases involving Indian parties, so we have three Indian qualified lawyers in the secretariat as well.  J.P.: Well, that certainly gives a good overview of the breadth that the SIAC covers. And I think just to reinforce that a bit, let's talk about some of the offices that the SIAC has outside of Singapore before we get to the one in New York. So, am I correct that in 2013, SIAC opened up its first overseas office in Mumbai and then Seoul? Is that right? Seoul, Korea?  Kevin: That's right.  J.P.: And then in 2016, SIAC opened up in Shanghai, correct?  Kevin: Yep.  J.P.: And then in 2017, SIAC opened up a second office in Gujarat in India, right?  Kevin: Also correct, yeah.  J.P.: Now, what was the impetus for opening all those offices?  Kevin: Really, it's to have a presence on the ground. So one thing that we do very well at SIAC is have a lot of analytics looking at economic indicators. We're looking at both sides of the contract. So you're seeing where, for instance, Indian parties, where those inflows and outflows of economic activity is happening. And I think that it matters to users to have a presence on the ground. I can see with the incredible amount of interest that we have in the Americas with Adriana on the ground here. So whether it's being able to call and say that you're filing a notice, I'm starting to think that notwithstanding the fact that I'm the Registrar, that more American users are actually liaising with Adriana. In fact, we had a purely European dispute where they were calling Adriana to say, hey, we filed a notice. So I think that it's made a difference to have that on the ground presence. And we're looking at perhaps a few other offices that are going to be opened up in the reasonably near future. I think what's important for the Americas and one thing that I've talked about publicly quite a bit is potentially that move to setting up a case management office in New York.  J.P.: Interesting. Well, let's talk about that New York office then. So now, Adriana, you opened up the New York, the SIAC New York office in December of 2020, correct?  Adriana: Yeah, that's correct, J.P.  J.P.: That's a challenging timing. How did you find that process?  Adriana: Oh, that was really a very challenging time. I think that was the height of the pandemic, if I wasn't mistaken, back in 2020. And so what we did was really to leverage off technology, J.P. I think that's even the first time where we met was by Zoom. So what we've done is that we've used Zoom, we've used webinar to engage with our users. I remember that time I probably had a Zoom meeting every single day for over a year or even two years. And really, the challenge was creating that rapport and that relationship to deepen those relationships during that time.  J.P.: Yeah, that was certainly a challenging time. And I do recall meeting for the first time by Zoom. Now, Adriana, does the New York office, I think Kevin just touched on this, but does Does the New York office administer cases as well?  Adriana: Not at the moment, J.P., but we're looking into the possibility of administering cases from our New York office to provide real-time access for our users in America. So that's something to watch out for.  J.P.: Good. Well, we'll keep a heads up for that one. Now, what then was the impetus for opening the New York office? What was its purpose when you decided to open it in December of 2020?  Adriana: I think really, J.P., it's because of the growing number of American parties that we have been seeing in our docket. So every single year for the last 13 years, American parties actually ranked amongst our top five users. And there are certain years where you'll see that American parties would even rank number one amongst our foreign users ahead of China and India, which is saying a lot. And that is without us even having any significant engagements in the US. So it was us ripe for us to open an office during that time. It just so happened that it happened right smack at the height of the pandemic. But apart from that, our relationships with the Americans or the US is quite strong. As you know, our immediate past president, Gary Bourne, is an American. Our current president, Lucy Reed, is also a New Yorker. The number three or sometimes fourth most appointed arbitrator by nationality with SIAC are Americans as well. We have American counsel qualified at the secretariat, and we've been really engaging with a lot of U.S. law firms in SIAC. So I think with all of these, it just made sense for us to open an office in New York.  J.P.: Yeah, I think it tends to give a lot of comfort to U.S. parties when they know they have a local contact that they can reach out to. And certainly that helps with with, you know, explaining to a US party, like, yeah, this is not this might be an international undertaking. But there's an office right here in New York. Here's Adriana, here's someone we can reach out to. Now with that, Adriana, what is your day to day look like in the New York office, if you don't mind sharing that with the audience?  Adriana: Oh, I mean, I wouldn't even know myself out my day would would go but typically it would be speaking with our stakeholders. So be it, you know, at a law firm or roundtable session with some corporates or lecturing in some universities. Mostly I'm traveling. So SIAC, New York office really covers from Canada all the way to Chile, including Caribbean, Central America. So then you'll find me in different parts of America. And I think that that's how it looks like at the moment.  J.P.: Yeah, I would imagine it's probably a pretty exciting and pretty action-packed day. Okay. Well, let me just transition a bit so that people in the audience can get a bit of a sense because we were talking about case administration and, you know, for instance, Kevin mentioned, you know, a purely European case in which people were reaching out to you. How many cases did SIAC administer in 2023?  Kevin: Yeah thanks, J.P. I should also say, reaching back to the past question that much of Adriana's day involves me reaching out to her, asking about US arbitrators, a filing that's coming in. But moving to the question, how many cases SIAC administered? So we had 663 cases in 2023. Our previous high had been more than a thousand cases. And this is really significant when you you think that we were starting from the place of two cases filed in 1991 when we first opened our doors. Unsurprisingly, both of those would have been ad hoc conversion cases. And you have some of these cases that might just be a few thousand dollars, two cases, some of the big major projects and giga projects in the mini billions. From a case management standpoint, what is critical for us, the independent and neutral SIAC secretariat, is you treat every case the same. Every case gets the same amount of care and attention. And that's what we've really tried to focus on when we've moved from a regional institution to a global institution. The idea of this accessibility, where we're still treating every case like it is the most important case on the docket. Counsel can reach out to us, certainly not ex parte, but can certainly reach out to us on matters of procedure, the same with arbitrators. And that's been really important to our growth. At any one time, we have more than a thousand active cases. And now in most years, we're getting more than 500 cases a year, which from an international caseload standpoint, really puts us at the top of the chart for arbitral institutions.  J.P.: Yeah, that's quite an impressive growth and impressive numbers. Now, are there particular industries that many of those cases come from, or are there particular industries that you see more cases come from? I'd just be interested to know.  Kevin: J.P., it really runs the gamut and our only limitation really is arbitrability. So you could have cases arising out of contracts, treaties, investment contracts, and it's a lot of mirroring with these economic corridors. So there's certainly a lot of international trade. I can remember during the pandemic, it felt like I was becoming an expert in the sale and purchase of masks. We had lots of those cases. We get some of the big construction and engineering cases, corporate, JV, maritime and shipping. Singapore has the second largest container port in the world. So we really want to be able to administer any kind of case with any type of law applying and increasingly in different languages of the arbitration.  J.P.: Well, that's interesting. It's unsurprising, I guess, that some of the caseload would follow economic trends. And it's also unsurprising that some of the cases would just follow what goes on in Singapore generally. Now, I think you mentioned earlier some of the top users for SIAC are China, India, the US. What countries were the top five users in 2023?  Kevin: In 2023, we had lots of cases from mainland China, Hong Kong, Americas, India. What I found very compelling in those 2023 statistics is that our fifth most frequent user was Emirati parties. And often we had Emirati parties on both sides of the contract. And it's really a hallmark of the flexibility of international arbitration. So you may have UAE parties on both sides. They may choose an onshore or offshore seat in the UAE. They may choose a Singapore seat. And then the rest of the top 10 and those users that are starting to really matter is really a balance between common law jurisdictions and civil law jurisdictions. And if you follow SIAC and if you chart SIAC, what we really try to do is give effect to both the common law tradition and the civil law tradition. What we have been seeing increasingly with US parties and in large part to the work of Adriana is some of those real chunky disputes are coming from the Americas. When you're looking at the highest summon dispute, the mean summon dispute, the median summon dispute, we are getting some of those very significant cases from the Americas.  J.P.: Well, that's really interesting. And before we move on to the Americas, I just want to hit on a couple of points. And I guess my first question is, are you seeing trends in where cases are coming from in countries? Like, for instance, you just mentioned the top five user being Emirati. Would that have been the case a few years ago as well, or is that a newer development?  Kevin: We've seen some signs of interest from Emirati parties and in MENA generally, but it is because of the amount of work. And it's almost like you can look at some of the fastest growing economies and some of those most dynamic economies, and then you will start to see SIAC's caseload increase. And as I mentioned earlier, what's important for us is to be able to market both sides of the contract and have the users have confidence on both sides of the contract. So a classic case involving the Americas might be a party from the U.S. And an Indian party, a party from the U.S. And an ASEAN party, and a party from the U.S. and a Chinese party. What place are both of those parties going to choose increasingly at Singapore and SIAC? J.P.: Yeah, that's great to hear and unsurprising, I guess. Now, are those transactions ones that would be, for instance, just global transactions, or are they ones that might have some sort of geographic center in Asia?  Kevin: One of my favorite disputes that we've had recently was a functionally domestic US dispute where there were parallel court proceedings in the Pacific Northwest. I was looking for an Asian nexus. I have still yet to find it. So most of these, I mean, I mean, obviously, arbitration is the preferred method to resolve cross-border disputes, but in the UAE, in the Americas, a lot of times in India, these are domestic disputes where they're choosing Singapore and SIAC. And J.P., you might remember that it took some time for the Indian Supreme Court to give clarification on whether two Indian parties could choose a foreign seat. That clarification has now arrived. But even before that, because of the power of Singapore as a seat and the trust and confidence into the SIAC, Indian parties were still using SIAC for functionally domestic disputes.  J.P.: Yeah, it's interesting because that has been the case for many, many years before the Indian Supreme Court clarified that, as you say, almost akin to the way that some Brazilian parties use other institutions as well as the SIAC for purely Brazilian domestic disputes. It's a vote of confidence in arbitration generally, I think, as well as the institution. Well, let's shift gears a bit and talk some more in a little more detail about the Americas. And Adriana, what, obviously, by opening an office here in New York, SIAC is targeting, you know, the US and New York in particular. But what other markets is SIAC targeting with its New York office?  Adriana: J.P., there's really a lot of ground to cover in terms of targets. And as a starting point, SIAC's choice to open our America's office in New York was important. And it was very consequential and sent a message about our future direction. As all of us who live in the city would be aware, New York is the epicenter of so many things. So international arbitration and legal services, banking and finance, international trade, retailing, media and advertising, and so many others. But our users come from all over the US and across various sectors. Let's see if I can recall all of them. So over the past five years, we have seen parties from California, Connecticut, Delaware. Florida, Georgia, Illinois, Massachusetts, Maryland, New Hampshire, I think New Jersey, Nevada, North Carolina, Ohio. We've seen some from Texas, Virginia, and Washington, to name a few. We have been busy see deepening these relationships and engaging with the local arbitration communities, establishing partnerships such as with the Silicon Valley Arbitration and Mediation Center. But our New York office really covers the whole Americas from, like I said, from Canada to Chile. Latin America is especially exciting for us because of its increasing trade with Asia. Right now, we have cases coming from Belize, Brazil, Chile, Colombia, Ecuador. We also have cases from Mexico, Panama, and Uruguay, and we are eager to further expand our reach in the Americas. In fact, one of the first few things we did, J.P., when we opened the Americas office was to enter into partnerships with local centers such as the Lima Chamber of Commerce, the Santiago Arbitration and Mediation Center, and the Quito Chamber of Commerce, to name a few. And we have been very active in the region since.  J.P.: That's really impressive. That's really impressive. And, you know, people, you know, think of the Americas and they, they sometimes think of a few large, a few large jurisdictions, but you're mentioning really a number of countries in the Americas that are seeing capital flows between, between their countries in Asia. Now, what are some of the, what are some of the largest, Latin American markets that you're seeing activity in at the moment, other than the ones, you know, I think you just mentioned a few, but are there others that you're seeing in particular as ones that are producing a lot of disputes?  Adriana: I would say there has been an uptick in our Mexican and Brazilian caseloads. Kevin, you've seen a lot of these cases coming in. I think there are queries coming in from Ecuador as well. That's an area that we're quite interested. In fact, we did hire an Ecuadorian counsel in our secretariat because of that.  J.P.: Impressive. How about jurisdictions like Argentina and Peru?  Adriana: Yeah, actually, Argentina and Peru, one of our main targets, especially Peru, I think in Peru, they've now mandated arbitration as part of their law for public contracts. There's a lot of arbitration going on in Peru. And just before actually this podcast, I was on a webinar for the Peruvian Institute. So we are very active in Peru as well.  J.P.: That's great. I would assume Colombia is an important market as well. well?  Adriana: Yes, absolutely. Colombia, Panama, because of the Asian trade, that's also a very important market for us.  J.P.: Interesting. And are you seeing disputes come out of issues involving the canal in Panama?  Kevin: We actually have J.P. And I should say, because Adriana has been in this role for, is it three years?  Adriana: Yeah.  Kevin: In or around. There is that sort of timeline when SIAC clauses go into contracts and when you get the eventual dispute. And we have very strong indicators for many of those jurisdictions that you named that some significant entities are starting to use SIAC as their preferred dispute resolution choice. And that's one of the challenges of marketing an institution because you actually don't want parties to go to dispute. You hope that that they don't have to go to an arbitration, but that they have confidence to use SIAC arbitration clauses. So we're just as happy when we know if it's an entity from Panama, Peru, Argentina, as the case may be, that they're starting to use SIAC clauses. And whether or not that goes to a dispute, hopefully it doesn't. Maybe they're able to settle on their disputes or because of the confidence in SIAC as an institution, the parties tend to keep to their bargains because they know if they go to arbitration, it's likely going to be very fast and very cost effective for the counterparty.  J.P.: Yeah, well, that is certainly the case. I think we all always hope when we're drafting arbitration clauses that they never get invoked. But, you know, it's certainly my experience, at least, that, you know, 15 to 20% of those will end up at a certain point in time in arbitration. And so it's good to see that SIAC clauses are being written. And I know certainly clients that we have are extremely interested in that. And not simply when there's any sort of, you know, Asian nexus. It can be just about anything at this point. Well, that raises a really good question, which is, what would you say, Adriana and Kevin, have been the biggest accomplishments that SIAC has had in the Americas since opening? I mean, it's been a really challenging time, but you've obviously put SIAC on the map even more so in the Americas. So what would you see as the biggest accomplishment in the last, I guess, three or four years?  Kevin: J.P., I might just start and then I'll pass it over to Adriana. So the joke that I always make internally about Adriana setting up the New York office is that she effectively came here with a paperclip and ended up bartering her way into having a very well-running office. So certainly that was a challenge for Adriana coming all the way from Singapore and being able to set up this vibrant office that is doing some really interesting things. Effectively just with a paperclip and bordering her way and navigating New York City to get this office up and running. But I'll pass it over to Adriana.  Adriana: Thanks, Kevin. I guess aside from what Kevin just said, I would say getting new users from new jurisdictions would be one of our biggest accomplishments, J.P. Since opening the New York office in December 2020, we have gained new users from places like Argentina with the first ever case from that jurisdiction filed just last year and Colombia, which we spoke about. What's interesting about the case involving Colombia is that the counterparty is from Switzerland, showing the potential for cases in the Americas with no Asian nexus. We're also seeing a rising trend in cases from Panama. I think we've touched on that earlier. And more and more of our clauses are also making their way into contracts across Latin America. Just yesterday, we received an email from a firm in Guayaquil and Quito informing forming us, they've included SIAC clauses across a suite of contracts. A Spanish law firm with Latin American clients recently also indicated they're trying SIAC, including us in contracts for the first time. Peru, like. I mentioned earlier, a Peruvian law firm also told us that they're currently handling a contract with an SIAC clause for the first time. So this could be SIAC's first Peruvian case if the clause is activated. There was also a prominent U.S. entertainment company that requested information on SIAC as it considers switching from U.S. arbitral centers to SIAC. And speaking on the U.S., we've seen a rise in filings since the launch of our New York office. Another notable trend is that But while SIAC is often chosen when Asian parties are involved in, you know, repeating what Kevin just said, we're now handling cases between American parties or between Americans and Europeans without any Singapore-Asian connection. And I think this trend really highlights SIAC's growing international reach and reputation.  J.P.: Well, that is certainly impressive meteoric growth. And, you know, it's an old, it's a trite old song lyric, but the song lyric that if you can make it here, you can make it anywhere really is true. And you certainly have. Let me ask then just a concluding question for you, Adriana. And obviously, Kevin, you should feel free to jump in as well. But where would you like to see the New York SIAC office in, say, five years? What would you think that looks like?  Adriana: I think in the next five years, we see SIAC becoming a major player in the arbitration landscape across the Americas. We're focused on establishing a strong presence and building solid relationships with businesses, legal professionals, and arbitration practitioners throughout North and South America.  J.P.: Good. Kevin, anything you want to add there?  Kevin: Maybe just that it almost goes to the mandate of an institution, is what is an institution really there for? And I think that we believe that we are there to promote the advantages of international arbitration and to really be a contributor. And that's what we've tried to be with the America's Office in New York, is to be a part of the international arbitration community. And one thing that I would say about where we want to be in five years or 10 years is from a case management standpoint, we just want to keep getting better and better. Arbitration is not like it was 10 years ago or 20 years ago. You have to be fast, thoughtful, precise. The case management matters. And that's what we focus on. And we're going to continue to listen to our users and try to be updating ourselves for 2024 beyond.  J.P.: Well, those are all good goals to have. And I think we'll keep our ear to the ground for future developments on things like case management and new rules. And I think I'll exercise my prerogative to reserve my right to call you guys back to discuss those things in the near future, because I think there's been such incredible growth and so many incredible developments, and I'm sure there'll be more to discuss again in the near future. But with that, I think we should conclude our discussion. And I want to thank you both. I want to thank our guests, Kevin Nash and Adriana Uson from the SIAC for offering their invaluable insights. And I want to thank you, the listeners, for tuning in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. I'll take the initiative and speak for both Adriana and Kevin and say you should feel free to reach out to them as well about any questions you might have. We look forward to having you tune in for future episodes in the series. So thank you again to Adriana and Kevin, and we look forward to having you back.  Adriana: Thank you, J.P.  Kevin: Thank you.  Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the costs of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on 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.

NYIAC Executive Director Rekha Rangachari discusses the NYIAC's mission, structure, and initiatives with International Arbitration partner J.P. Duffy.

Gautam Bhattacharyya welcomes arbitrator and independent practitioner, Manini Brar in this “Spotlight on…” episode. We discover what drew Manini to the law, who her greatest mentors and inspirations have been, and how she developed an interest in international arbitration. The conversation then turns to Manini's launch of Arbridge Chambers and the differing roles of counsel and arbitrator, before closing with Manini's views on achieving greater diversity, equity, and inclusion.   ----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. And with that, let's get started. Gautam: Hello, everyone, and welcome back to our Arbitral Insights podcast series. And our latest edition is going to be another very informative and fun one, I am sure. I'm very delighted to say our guest today is Manini Brar. Hello, Manini. Manini: Hello, Gautam. Hi. Gatuam: It's great to see you again. It's wonderful to see you. The last time I saw you was in Delhi during Global Arbitration Review's Delhi Live and as part of Delhi Arbitration Weekend. And it's lovely to see you again. Thank you for agreeing to be part of this podcast. Manini: Like I said before, when we were leading up to this, this seems to be a podcast which is very popular and has a loyal following. So I'm very happy to be here. But the other is that we got along so well over that dinner over Delhi Arbitration Week that I'm seeing this as a bit of a two-way exchange where I get some insights from you as well. So that's part of my motivation. Gautam: Well, that's wonderful to hear. And I hope I won't disappoint you. I will do my best to achieve what you hope that we could achieve in the course of this podcast. And I really am over the moon that we're doing this one together. I have a lot of admiration for you, Manini, and that's why I'm so happy that we could have you on this podcast. As I always do, I'm going to give a quick introduction to you as our guest. So Manini is a dual qualified lawyer. She's qualified in India and in England and Wales. She has worked in a variety of places and gained much experience. So both in private practice... She's worked with senior advocates in India. She's worked at arbitral institutions. She's been involved as a tribunal secretary on a number of occasions. And in 2021, set up her own chambers in Delhi called Arbridge Chambers. And is not only a wonderful counsel, but is one of that rare generation, which I love to see, female arbitrators of ethnic origin. And I make no bones about it I love that so that's a quick introduction to you Manini I hope I've done you justice in that introduction I could never do you justice because I need to take 10 or 15 minutes to go through all your wonderful accolades but I hope that's uh at at least a good summary for our listeners. Manini: No no this is great because when I hear it back it sounds you know so much better than when one has lived it. Gautam: Well, I can assure you, you've achieved a lot. And in the course of this podcast, we are going to explore, I hope, a fair bit of the things that I mentioned. And I mean, I guess a really appropriate way to start this is what inspired you to the law in the first place? Manini: So just a bit of background, I was in an all-girls school where I was the head of the debating society. So I loved to debate and I really thought I was going to get into an area which involved more public service. And what I had in mind at the time was journalism. And my father looked at me when I told him that and said, that's all right. But if you're expecting me to fund your professional journey through journalism. Gautam: That's a good leveler, right? That's a good leveler. Manini: So I said, okay, what is it that I can do where I will be immediately qualified to help the larger public good? And for me, it was an easy choice. It was becoming a lawyer. And then I got to law school and within a month of being there I knew that this is something that I wanted to do and I've never looked back. Gatuam: Now that's great and you know I suppose in many ways lawyers are in some part journalists right because we tell stories right so I dare say that in the context of your legal career you have also borne out your journalism dreams I'm sure you have. You know, one of the things that we all benefit from in the course of our careers are wonderful people who mentor and inspire us. And I know that I've got a number of people who've held those roles for me. And I'd be really interested, and I know our listeners would be, if you could just share with us some of those people who've been your greatest mentors and inspirations in your career so far. Manini: You know, I have a slightly different experience with finding a mentor only because I don't belong to a legal family and I have actually no one in my family is a lawyer and we're not even remotely connected to business. My dad was a cop. He was an IPS officer in India. So I sort of went through this journey a bit on my own. And as much as I would have loved to have one particular person who I could have, you know, tugged along with and had the benefit of the experience, that is something that I never, a point that I never really got to. But what did happen for me is that. Almost all the people that I worked with were very high level professionals. And not only the seniors that I worked with, but also my colleagues. And so I've had the good fortune of really meeting inspiring people who have set the bar very high in terms of what is expected of a lawyer and what is the kind of professional etiquette that you should have. And that is something that I have taken with me from different people at different points of time in different ways and sort of held on to. So the seniors that I worked with at the bar, some of the lawyers, some of the colleagues that I've worked with, they've been very helpful. But for me, I think the most inspiring thing has been a bunch of people who didn't know me, who had no relationship with me, who had not mentored me, not helped me, not been in touch with me professionally, but who found me out to help a total stranger. So my professional journey is one which is full of these amazing instances of... Goodwill of generosity from total strangers and that I find is something that I would really like to give back in future and I try to every day. You know I try and I try and seek out the people who I think are meritorious and I try and sort of take them along if they need any help or if there's any way that I can help them I try and do that because I know that there have been so many people who have done that for me. Gautam: You know, that in itself is really inspiring and uplifting to me, Manini. I must tell you, you know, and I'm going to just spend a few seconds because you did say to me, and I'm not one to turn down a request from you, that you wanted to hear a little bit of my thoughts. And, you know, so one thing I love is you're also first generation, I'm first generation. There was no one I could turn to. No one gave me a leg up. No one gave me any favors or anything on a plate. And I had to discover the law for myself and everything. So, I mean, I know that your family has always been a great inspiration to you. My family, of course, has been a great inspiration to me and continues to be. But also, I think professionally, it's very interesting. There have been some people along my career that I've known for the last, you know, I am older than you, over the many, many years that I've I've been doing all of this, but you know, there are some people who I look back on and who, I mean, there was, it's some people who I didn't even meet who inspired me. And I think I want to dwell on that for a few seconds, because I remember when I was very junior, there was a, someone called Shashi Rajani, who at that time, and I've never met Shashi, but he, when I began in 1991 in a law firm, he was already a senior partner in a city law firm in London. And that was a really peculiar thing, right? To see someone like that, of that age, of that level of experience at that time was really something. And that inspired me to want to be like him. The other person who inspired me at that time in 1991 is I heard of a certain person who became a very, very dear friend of mine and a great mentor of mine. And who unfortunately we lost in February of this year, Fali Nariman. I didn't meet Fali until a lot later, but I came to know of him through reading about him back in the early 90s. And I thought to myself, I really want to be like him. So it's really interesting. And I won't dwell on other people because we haven't got time, but there are so many people I owe a huge debt of gratitude to. But it's those people who I I heard about, I read about in the early stages of my career, who really gave me the drive to try to be something. And I'll always be grateful to all of them. And Uncle Fali remains, even though he's now left us, a huge inspiration to me. Manini: Can I just add to that, that, you know, one of the first things I did when I enrolled at the bar in 2010 was I went to court number one, which is the chief's court in the Supreme Court. And I sat there during the lunch recess just to sort of take it all in and you know there were these big so they have these portraits of all the chief justices and then and then of one particular judge who had done the country a great favor during the emergency and I was sitting there and I was looking at their portraits and feeling very inspired and then lunch recess got over and the first matter that came up was one where Fali was arguing. So we have that in common. I have been thoroughly inspired by him. And then I bought his book and I got someone to help me get his autograph on it. And so I read Before Memory Fades and it's one of the most influential things in my life. Gautam: Oh, I agree. That book, I've got a signed copy myself of that book. And it still inspires me just to read some of those stories, anecdotes and stuff so no no it's wonderful well no I mean and I say it's nice to know that and I probably wouldn't have found that out but for this podcast with you so that's a really nice thing. So now one of the things that you've done really well is you you've gained a lot of experience in the field of arbitration. As a practitioner, as a tribunal secretary, with institutions, and now as a practitioner and arbitrator. But how did you first discover arbitration? Or how did arbitration discover you? Manini: So I joined a litigating lawyers chamber back in 2011, about 13 years ago. It was one of the beginning, starting years of my practice. And I thought that I was going to go to court every day. But in about the third week of my being there, these three very thick binders landed on my table. And there were three different arbitrations regarding very complex hydropower project. And so for the one, one and a half years that I was associated with that chamber, I worked only on that matter. And then I said, okay, this is something that I enjoy because I really feel that as compared to court litigation, a lot visibly happens in an arbitration over good, careful drafting, over good structured arguments. And it is, shall I use the word, but a very equitable way of resolving disputes. So I was attracted to that. And then I decided to study further and do my master's in Cambridge, where I studied dispute resolution in particular. And from then on, there was no looking back. I worked as a research assistant with one of my professors, and he was kind enough to recommend me to the ICC. And I think that was when I absolutely fell in love with the practice all over again. Because one thing that the ICC taught me, and you've referred to my various experiences, is that you have to absolutely know the process and what is market best practice before you feel confident enough to start giving your opinion about it or to start using that as a legal skill or to use that to advise other people. So I think the repetition of the tasks that we had to do every day at the ICC is really where I learned that. So I said, before I start my own practice, I need to know what this whole scene is about the litigating lawyer who's doing arbitration, about the arbitration chambers that are only doing the arbitration hearings but not appearing in court, about the involvement of the government. Because a lot of arbitration in India is government facing. It's either government contracts or it has one element involving a government tender. And so I made it my mission to sort of get a perspective on everything before I felt like I was confident enough to, you know, branch out on my own. Gautam: Well, well, fabulous. And that's a perfect segue to asking you about branching out on your own, because I mentioned mine in the introduction. That you are the founder of Arbridge Chambers in Delhi. And you founded that chambers in 2021. And so just tell us a little bit about, what drove you to set up your own chambers? And, you know, tell us a little bit about Arbridge Chambers in terms of your team, and the sorts of work that you're currently involved in, of course, no names, of course, because we all respect confidentiality, but the sorts of things that you and your team are doing. Manini: So Arbridge Chambers happened because, like I said, I always wanted to get into independent practice and have a setup of my own. And the constant struggle for me was, of course, one was being sure that I know everything that I need to know, that I have the skill and the wherewithal. But the other was also that every time I spoke to someone about setting up an independent arbitration practice, they said, well, why don't you do it in a firm? You know, because firms have larger teams, they're dealing with bigger projects, and it will be easier for you to do more meaty arbitrations. And I thought that in India in particular, the firm setup inevitably involves engaging a separate council for the court-facing part of the arbitration. Most often than not, although now that is changing, but that was the setup then. And I said, I don't want to be in that system where I have to choose between which part of the arbitration I'm involved in. And so that wasn't working for me and the other thing that people said a lot was that you know you're going to be a small fish in a really big pool and I looked around myself and there were so many practitioners who were male who had their own independent practices and were identifying as arbitration practitioners and I just wondered why is it that there are no women doing this. So for me, I said, let's see, you know, that was my thought process that if it doesn't work in, say, three years or five years, I will go back and I'll do something else. But if it does work, then great kudos for us. And so I set up a chamber where the people who work for me also see themselves as independent advocates. So we work together on matters that, for example, are mine. But I also encourage them to take on independent work. And the idea is very much like a chamber for everybody to eventually develop into their own practitioner. When I started I must tell you I started in the January or January of 2021 and that is the month that I found out that I was pregnant with my first child. So I left and I thought that no I'm going to focus on client facing business development and I have so much work to do and about 15 days after I made this announcement that i'm starting in my chamber, I found out I was pregnant. And then I just kept thinking for another couple of months, how I'm going to do it. And, you know, how is this thing going to come about? And one day I was walking very furiously on my evening walk, thinking of all this and thinking, maybe this is a really bad time. Maybe I should park it for another three years. And I got a call from the Delhi High Court, from a judge who said, I have read some of your published articles on arbitration and I have a really small arbitration that I'm looking for an arbitrator for and would you be interested and this is you know one of those people who who has no connection with me I spoke earlier about the generosity of strangers and that's how I started my practice he gave me two matters one one was the small arbitration another one was a batch matter which had 18 connected arbitrations. And that actually sustained me through those initial phases of my practice. Gautam: Now, that's a great story. That really is. I mean, you know, there's so much in there, which I love. First of all, you had the courage and the desire to set up your own chambers and your own practice. Number two, you weren't put off by people saying that you'd be a small fish in a big pond. I love that. Number three, you said that there were lots of men in their own chamber, so why shouldn't there be a woman? I love that. And I love also, amongst other things, that point you just made about a stranger to you, a judge who rang you up and said, look, I've read your publications, which just shows it's really worthwhile to all the younger lawyers listening on this podcast. You can never start publishing too early. Always love the law, love the practice, write about it, add to knowledge. That's really important. Now, the fact that you did that, Manini, led to that lovely circumstance that you got these matters and then that helped you. And it's just, no, there's a lot in there that's very inspirational. And, you know, well, look, thank goodness you didn't get put off and you've certainly made a great success. So, you know, as I know, our listeners will, of course, know from you and everything you stand for. So, no, that's really interesting. And also the point that you mentioned about how you love to see colleagues of yours branch out themselves. I think that's another thing. I mean, again, I'm going to use your request to me to say a little bit about my perspective to what you say. I think that's so important. You see, you have to want people who work with you, not just to equal you, but to surpass you, right? And there's no point looking to help people and benefit people and mentor people, inspire people, if you don't want them to do really, really, really well. And so I love that message from you, Manini, there. You covered a lot of ground in that last answer, and I loved it. So then, now that you're a counsel and an arbitrator, I wanted to get your perspectives on, you know, what are the key skills that you think an arbitrator really absolutely has to have? Manini: You know, so this journey of trying to be both and wear both hats is actually a very challenging one. And I have immense respect for people who have done it before me and done it so well. Because when you're practicing in India, especially, for example, in a high court like the Delhi High Court, which has very high stakes and it's one of the most highly regarded courts in the country, you'd– on on an everyday basis you have about 50 to 60 matters listed before a particular judge so you have about three minutes to make your point and you have to do it in spite of the other lawyer sort of also trying very desperately to make his point so the entire skill involved is is to be quick, to be to the point, and to get the relief that you want loudly and quickly. And when you're being an arbitrator, the thing that you have to do is park that argumentative side of your personality completely and stop judging the matter for its merits, before they are presented to you. That essence of being a neutral, of not having an opinion about either the people who are appearing before you or the case the merits of the case that they may have without actually looking at their pleadings and and keeping a balanced view is really the the core of what you're expected to do and it is drastically different from how you think as a counsel so I think for me that is the most important thing. I don't try and go behind the party's intentions when I'm wearing the arbitrator hat. I don't try and go behind, well, why are they putting this counsel forward to argue or why did he time his application in this particular way? I don't get into that unless it is argued before me. So that's what I try and do. And I think that has worked for me so far. And it has helped me to resolve disputes efficiently because we don't get caught up in the rigmarole that a lot of, I think, other people sometimes get stuck with. Gautam: Yeah, no, I'm again, I couldn't agree more. And I think you're so right. It's just that approach. You know, when we were at GAR in Delhi together last month, you would have met, I hope you would have met Sadaf Habib, who was one of the other panelists on another panel that you weren't on at GAR. And one of the things that she mentioned about her experience as an arbitrator was about having empathy and trying to be balanced in the approach that you give and feeling, as always, that each side has the ability to feel that, you know, okay, they might have won, they may have lost, but they've been fairly heard, that they've been respectfully heard, and they've been empathetically heard. And I think that's a really important point which you've touched on there. And I think that's such an, that really, I think that's one, from my perspective, I think that's one of the things that differentiates arbitrators, because people do know who the very decent ones are in terms of character, personality, and their traits. Now, one thing I want to ask you about, Manini, is you and I both know that there are happily many more women like you coming through as arbitrators, but there aren't enough of them, right? And I think we can agree on that. There are not enough. And I know that you're also a massive champion of diversity, equality and inclusion and the advancement of women. And we, of course, I mean, I have the privilege of sitting with you on the advisory board of Indian Women in International Arbitration. And we both share that passion for the advancement of women. But in terms of. From your perspective, what more can the community do to ensure that more women get those opportunities, more women get appointments as arbitrators, more women get the recognition they deserve? What more can we do? Manini: I think this conversation has to start somewhere from recognizing the multiple roles that women play in society and recognizing that success is not a unidimensional thing. It's not really about making it to the 40 under 40 list or having your name up on Chambers and Partners when when your male colleagues are also there because you take time out as a woman you take time out to have a family you take time out to you know set up your marriage and you make decisions around those life choices so i think one of the things that absolutely needs to happen is the conversation needs to shift towards gender inclusivity in the sense of really understanding that the two genders perform very different roles in society and factoring that in when you measure success. For example, I have not set myself up for these unreasonable standards of, for example, being a senior counsel in the Delhi High Court by the age of 42. It's simply not something that I aspire towards, because I know that there are other facets to my life that I also want to take care of. And towards that, towards gender inclusivity, I think. Judges who are appointing arbitrators, institutions who are appointing arbitrators, parties who are appointing arbitrators, have to recognize that simply because a woman is not visible at every networking event or at every panel discussion doesn't mean that she's not capable or not interested. It's just that in a day, she has to do so many other things. And sometimes the priorities are different. On a particular day, your children need you more than work does. And so I know that there's a lot of pressure on being visible within the arbitration community. But I think there needs to be a certain amount of flexibility there. I mean, the example of the judge that I gave you before, right, he made the effort of going online to look at who were the new people, young arbitrators who were publishing or people who were talking about arbitration or were visible online, which kudos to him, he could have, you know, asked his juniors about who they met at the last conference who looked like a promising person, but he didn't, He made that extra effort and I think that is what we all need to do. As an arbitration community, we need to seek out women, because sometimes they're just held back by circumstances, and not really by a desire to, you know, hold back. Gatuam: I couldn't agree with you more. And I know, I just think that's, again, so inspirational. And, you know, people like you, that's what people, you are real role models for so many people, because you live and breathe those values and those aspirations and those beliefs. And, you know, and I know many people who listen listen to this podcast will feel that too.Now regrettably we've come to the - please is that something else you want to mention Manini? Manini: Yes I actually want to ask you Gautam that when you I know that you're you know also such a champion of diversity the fact that we're doing this podcast in some way is you know your step to put more people on the map and i want to ask you What is it that you see in the people around you as a quality that they should have to help diversity or to bring the community together? Gautam: Yeah, well, look, you know, thank you for that question. I think, you know, I just think that people need to be generous in their outlook. And I use that word because I think generosity is something that's very important. I think as people get more senior, more experienced, they owe it. A bit like you said earlier on in this podcast about giving back. We need to ensure that we leave our arbitration community, our legal community, our litigation community, our legal community a better place than when we arrived in it. Because one of the sayings that I remember reading many years ago was, the legal profession graces us. Lawyers don't grace the legal profession. And I think it's very important you look at it in that way, that you need to ensure that people get opportunities, not least because not everyone comes from a privileged background. Not everyone comes from the best schools, the best universities. Some people haven't got the best general knowledge, whatever you want to say. Some people haven't traveled as much as other people. But there's a real diversity in that. Some of the best people I've ever met and I've ever worked with. Are people who are unconventional, who aren't from a straight line, this background, that background. And I think that's when you've got to say a bit like you yourself said, and I'm going to steal one of your lines here, when you see good and you seek out people, because some people will actively come to you for mentorship and for help. But many people won't do that because they're not sure, they're afraid, you know, they're a bit uncertain about it. Make it easy for them, be generous and reach out to people and make sure that you leave the legal atmosphere that you've joined a much better place when you leave it. So that's what I would say. And I try to do that in the best way that I can. I'm not perfect by any means, but that's what I try to do. Manini: Inspiring. Thank you for that. That's a good tip. I'm taking it back, generosity. Gautam: No, thank you for asking me. And just so everyone knows on this podcast, these questions, which Manini are asking me are completely unscripted and I had no idea but I'm but I'm grateful to you for asking that to me. So we have regrettably come to the end of our podcast I could talk to you for hours Manini because there's so much we could talk about and and the dinner that we sat in together in Delhi last month as you yourself kindly said was a really really nice nice occasion. And I honestly could have spent hours just talking to you on many things. But we always end these podcasts with a bit of fun. And this podcast is no exception. So I want to ask you, what's your favorite sort of music? Have you got a favorite singer, a favorite group? So tell us about that. Manini: You know, these days, I've been spending a lot of time in my village in Punjab because of my kids. I like to take them there as much as I can because it's open and it's green. So I'm immensely immersed in Punjabi music. And these days, my favorite is Ali Sethi, who's a Pakistani singer. He's done some fantastic things in the past couple of years, and he's been to Coachella, and he's, you know, basically rocked the Punjabi music world. So I love that. Yeah, that's what I'm living by. Gautam: I love all that stuff. I mean, I yeah, yeah, no, know and you know I yeah I love that you know it's great to have that because it is great music someone who's played at Coachella has to be pretty cool as well just so everyone knows and the last quick question to you have you got a favorite travel place where you like to go with your husband and your children? Manini: It's actually London, London is my favorite. So yeah i think i think we have a lot in common more than more than the law beyond the law I love being in London because my sister is there and I love to shop and it's my shopping, and the other is home, Punjab. If I can get away from Delhi, it's either London or Punjab. These are my two options. Gautam: Well, dare I say, you know, one of the things I remember my dad saying many years ago is how proud he was that the rivers of Bengal ran so deep in his veins. And I dare say you would also say that you're very proud that the rivers of Punjab run deep in your veins. So, well, look, So it's been an absolute delight to do this podcast with you, Manini. Thank you very much for doing it. I've genuinely enjoyed it. I've been uplifted, inspired by you. I just think that our listeners will absolutely love hearing your perspectives and the enthusiasm and the drive that you bring to so many things. And I just want to end by saying, you know, very well done for everything you've achieved so far, and I wish you all continued success. So thank you again, Manini. Manini: Thank you so much. Thank you, Gautam, for having me. And I hope outside of this podcast, we're going to continue these conversations because I'm always looking to talk about. Gautam: We will. It's a promise. 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 arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the costs of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on 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.

KCAB International Secretary General Steve Kim discusses KCAB International's mission, initiatives, and future. Steve is joined by Reed Smith's New York international arbitration partner J.P. Duffy.

Gautam Bhattacharyya hosts Cyril Shroff for an insightful discussion about India's legal landscape and its future. The pair discuss Cyril's professional journey to his current role as a distinguished managing partner and pivotal moments along the way. They then turn to key trends, challenges and opportunities shaping the industry, the evolving role of legal professionals in a rapidly changing world and Cyril's role at SIAC.

Kristin Campbell-Wilson, executive director of the recently launched Abu Dhabi International Arbitration Centre (known as arbitrateAD), talks with Dubai-based partner Antonia Birt and associate Laura Adams about the establishment and mission of arbitrateAD. They delve into how the centre fits into the global arbitration landscape, how it differentiates itself from its competitors, and what the new rules will offer arbitration users.

Gautam Bhattacharyya is delighted to welcome arbitrator Hasit Seth for a conversation that delves into Hasit's career trajectory and discusses the individuals who have shaped his professional journey and influenced his approach to arbitration. The duo then explore the evolving landscape of arbitration and thoughts for the future.  

Explore the art of cross-examination in international arbitration with J.P. Duffy and Raj Pillai KC (3VB). In this episode, the duo discusses strategic insights, preparation techniques, tribunal expectations, and question dynamics that lead to effective cross-examination.

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.

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. 

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.

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.  ----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. 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 arbitralinsights@reedsmith.com. To learn about the Reed Smith arbitration pricing calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.  Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.  All rights reserved.

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. ----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. Welcome to our Women in Arbitration podcast mini series, a platform for women's voices across the global international arbitration community. I am Lucy Winnington-Ingram, an international arbitration lawyer based in Reed Smith's London office. In these episodes, we will hear from leading women in the international arbitration space and discuss industry news, trends, developments and matters of interest. And with that, let's get started. Isabella: Welcome to Arbitral Insights. Mi nombre es Isabella Lorduy Asociada de Reed Smith en el Grupo de Energía y Recursos Naturales Es un gusto estar hoy en este espacio grabando nuestra primera serie Podcast en español. Hoy precisamente nuestro tema de conversación se enfocará en Latinoamérica específicamente en la guía del Institute for Transnational Arbitration, comúnmente conocido como el ITA sobre las instituciones de arbitraje en América Latina. Y hoy estaremos conversando sobre sus principales conclusiones frente a la diversidad de género. Para esto tenemos dos invitadas muy especiales. En primer lugar, tenemos a Rebeca Mosquera, quien es asociada senior en la oficina de Nueva York de Reed Smith con más de una década experiencia en arbitraje internacional, comercial y de inversión. El trabajo de Rebeca, la ha hecho merecedora de numerosos reconocimientos, incluyendo un lugar en la lista de Latinx de las cien mejores abogadas de América Latina en arbitraje y litigios por cuatro años consecutivos. Además, Rebeca es miembro de la junta directiva de Arbitral Women y representante de ICC YAF para Norteamérica, entre otras instituciones. Por otro lado, tenemos a Elina Mereminskaya. Elina, Disculpe por la pronunciación del apellido de antemano. Elina es socia de Wagemann Arbitration, presidente de la ITA para las Américas, Doctora en Derecho de la Universidad de Göttingen en Alemania y Magisterio en Derecho de la misma universidad. Ha concentrado su ejercicio profesional asesorando a grandes empresas nacionales, latinoamericanas y europeas en varios proyectos. Además, pertenece a la lista de árbitros en diversos centros arbitrales, incluyendo la Cámara de Comercio de Chile, el ICDR y entre otras instituciones. Elina también es Fellow del Chartered Institute of Arbitrators. Sin más preámbulo, quiero empezar explicándole un poco a la audiencia que es el ITA o ITA, el cual ya he mencionado varias veces. Este es un foro educativo para el intercambio de ideas y el desarrollo de las mejores prácticas entre abogados, árbitros y profesionales involucrados en el arbitraje internacional, comercial y de inversiones. La guía que hoy estaremos discutiendo se basa en una rigurosa encuesta que no sólo rastreó el crecimiento de las instituciones arbitrales en América Latina, sino que también identificó factores claves que son actualmente temas candentes en el arbitraje internacional. Estos incluyen el aumento de la designación de mujeres árbitros tanto en los tribunales como en las listas institucionales, la disponibilidad de árbitros de emergencia y el cálculo de honorarios, entre otros temas de gran interés para la comunidad arbitral. Daniel Ávila, asociado de Reed Smith y coautor de esta guía, fue de hecho que tuvo la iniciativa e idea de encontrar un espacio para enfocar la conversación en una de las conclusiones más importantes de la guía. Tendremos que buscar otros espacios para seguir comentando esta gran publicación, pero por ahora quisiera empezar preguntándole a Elina cuál fue la metodología que usaron para llegar a las conclusiones de esta guía.  Elina: Muchas gracias, Isabella. Muchas gracias por la presentación. Excelente pronunciación de mi apellido. Tengo que aclarar que soy socia de Wagemann Arbitration una oficina boutique con sede en Santiago de Chile y bueno, respondiendo a tu pregunta, yo tengo el privilegio de dirigir ser Chair de la American Iniciative del ITA Institute for Transnational Arbitration y en el año dos mil once, la Iniciativa de las Américas de y ITA prepararon la primera versión de esta guía. Daniel Ávila tuvo la fantástica idea de acercarse al ITA y ofrecer el apoyo de Reed Smith y de bueno de él personalmente para hacer una versión actualizada. Y lo que hicimos con él fue, primero, hacer un levantamiento de las instituciones arbitrales existentes nuevas. Para eso consultamos en el ITAFOR, consultamos con nuestros delegados en distintos países delegados del ITA y una vez validadas las instituciones, las invitamos a participar de esta encuesta. Asimismo, actualizamos las preguntas con respecto a lo que fue el año dos mil once. Incluimos muchas preguntas nuevas y entre ellas las preguntas de género en el dos mil once no fue un tema tan relevante como lo es hoy. Y bueno, enviada la encuesta a las instituciones, se recibieron respuestas de un porcentaje significativo de las instituciones, lo que nos ha permitido elaborar esta guía como un informe final que va acompañada de gráficas de conclusiones. Así que invito a todo el mundo descargarla de la página web de ITA para poder conocer estas conclusiones generales y particulares sobre el estado del arbitraje institucional en América Latina.  Isabella: Sí, de acuerdo. Creo que es una guía que vale la pena revisar porque tiene información actualizada de todo lo que está sucediendo en estas jurisdicciones y, de hecho, adentrándonos un poco al enfoque de diversidad de género. Ustedes resuelven la pregunta de qué porcentaje de la lista internacional son mujeres? La mayoría de las instituciones que respondieron a la encuesta de la Guía contestaron que en menos del veinticinco por ciento de sus listas nacionales e internacionales contienen árbitros mujeres. Y aunque las cifras siguen siendo bajas, el nombramiento global de mujeres es mucho mayor en comparación con décadas anteriores. Y esto hay que reconocerlo. En esta línea, la guía también destaca que frecuentemente el árbitro único o el presidente del tribunal es nombrado por las instituciones, lo que podría resultar en el esfuerzo institucional para aumentar el nombramiento de mujeres y que esta cifra suba. Quería preguntarte en este punto Elina, estás de acuerdo con el nombramiento de mujeres por las instituciones como un mecanismo para combatir la inequidad de género en el arbitraje internacional?  Elina: De todas maneras, sí Isabella. Yo creo que en las instituciones recae la función de ir profesionalizando el arbitraje. Cierto, porque son se encuentran en la mejor posición para efectuar el nombramiento de los árbitros con conocimiento de la materia. Y en ese sentido tienen la misión, me atrevería, a decir, de aportar también a la diversidad en el arbitraje, promoviendo el nombramiento de las mujeres.  Isabella: Gracias, Elina. Ahora, continuando con un poco el tema de la creación de igualdad de oportunidades, hay una tesis que dice que la promoción de la mujer en el arbitraje no parte del principio de pretender lograr el mismo número de árbitras y árbitros. Más bien busca crear igualdad de oportunidades para aquellas mujeres preparadas para desempeñarse en estos puestos. Elina, tú estás de acuerdo con esta premisa y si estás de acuerdo, qué herramientas podrían ser implementadas para crear un mayor acceso a estas oportunidades y que las mujeres lleguen a este puesto de árbitras?  Elina: Muy buena la pregunta, Isabella. Muchas gracias. Bueno, la premisa en sí es bastante interesante si consideramos que las aulas universitarias hoy en día están pobladas por un cincuenta por ciento de hombres, cincuenta por ciento de mujeres, si consideramos que entre los asociados de los estudios norteamericanos, aproximadamente un cuarenta por ciento constituyen mujeres. Por qué no deberíamos tender hacia el número cercano, al igual de hombres y mujeres? Pero bueno, aceptando tu premisa como premisa correcta, es decir que no se busca lograr el mismo número de árbitras de árbitros, vamos a desarrollar bajo esta premisa, que es lo que se puede hacer desde mi perspectiva. La carrera habitual conducente a asumir el papel de árbitro ha sido lograr primero la posición de socia en un estudio jurídico litigante en arbitraje. Pero como sabemos, los porcentajes de mujeres que llegan a ser socias, incluso en los países llamémoslo desarrollados, no fuera de América Latina, son bajísimos. Según Legal 500, en el Reino Unido corresponde al dieciocho por ciento, en Alemania diez por ciento, en Estados Unidos Equity Partners mujeres son un veinte por ciento y no Equity Partners ascienden a treinta por ciento. Al mismo tiempo, hay muchas abogadas asociadas, directoras, ocasos todos estos diversos títulos que demuestran que son indicativas de la madurez de la profesional pero que la separan de ser socia. Y todas estas abogadas tienen la experiencia necesaria para desempeñarse como árbitras. Entonces lo que yo creo es que hay que hacer. Hay que desvincular la figura del árbitro, del árbitro, del rol de socia. Son habilidades no relacionadas de ninguna manera. Y de lo contrario, si los mantenemos, si las mantenemos vinculadas, las mujeres se ven doblemente castigadas. Por un lado, no llegan a ser socias y por otro lado, no llegan a ser árbitras. Y bueno para lograrlo yo creo que hay que promover esta idea tal como lo estamos haciendo ahora y más que nada, darle visibilidad a estas mujeres con talento y experiencia. Y para ello la teoría sociológica política acepta el uso temporal de las cuotas como algo muy establecido y creo debería implementarse también en el arbitraje. Personalmente, a mí no me ofendería ser nombrada como árbitro debido a que existe una cuota de participación femenina. Estaría agradecida que para cumplir con la cuota me elegirían a mí habiendo tantas otras candidatas. Igualmente tendría certeza que me nombran por mis cualidades y no por ser mujer. Ningún hombre asume que lo nombran por ser hombre y creo que la misma actitud corresponde que sea tomada por mujeres.  Isabella: Muchísimas gracias por la respuesta, Elina. Creo que es muy interesante y es importante que todas las mujeres empecemos a oír este tipo de ideas desde ya, porque es la manera un poco de no castigarnos, sino darnos cuenta hacia dónde tenemos que ver y digamos, siguen un poco tu línea y los comentarios. Creo que ha quedado claro que la diversidad de género encapsula muchos más factores que simplemente el hecho de ser mujer o no. También se debe tener en cuenta la edad, la nacionalidad, entre otros factores. Y pongo un ejemplo, a veces hay mujeres muy capacitadas y también hombres que por la edad, de pronto encuentran una barrera en ser, digamos, en conseguir cierto tipo de reconocimientos opuestos en el campo del arbitraje, igualmente con la nacionalidad, con la diferencia de factores y de factores, de dónde vienen y de las oportunidades que han adquirido. Y en este punto, quería preguntarte cómo abordar estos factores en las iniciativas que ya existen para crear mayores oportunidades en el campo del arbitraje internacional. Crees que deberían ser abordados como tema de género y tema de edad aparte? O tratar de combinar un poco todos estos factores para crear iniciativas que aborden más las problemáticas? Cuál es tu perspectiva de cómo cobijar tantas cosas, pasando al mismo tiempo?   Elina: Si desde mi perspectiva el grupo minoritario en el arbitraje son las mujeres, el grupo minoritario más importante son las mujeres. Si empezamos a considerar diversidad regional, por ejemplo, hay diversos grupos minoritarios, cierto. América Latina se ve menos, con excepción de Brasil, que es asna, se ve menos representada en el arbitraje internacional. Lo mismo se puede decir de Asia. Lo mismo se puede decir de África. Entonces hay un conjunto de ámbitos geográficos y ese conjunto no es homogéneo. Entonces crearon una iniciativa para promover este conjunto heterogéneo, cuyos elementos se encuentran en distintos en distintas etapas de desarrollo de arbitraje en distintas etapas de acumular la experiencia como comunidad arbitral. A mí me parece difícil. Ahora hay iniciativas puntuales muy importantes para acoger la diversidad regional, que pueden ser muy valiosas. Lo que yo creo que en América Latina tenemos que poca otra región tiene es la ventaja del uso común del idioma. Creo que deberíamos apuntar a crear una mayor movilidad de los árbitros dentro de América Latina. Habiéndose aquí la primera opción para un nombramiento fuera un candidato, una candidata de la región y una vez que logremos un pool de árbitros y árbitras latinoamericanos que se desempeñen con facilidad en el arbitraje internacional, ahí podríamos competir a nivel global. Pero en esta materia me parece menos factible la introducción de cuotas, por ejemplo, no, porque podríamos estar interfiriendo con requerimientos que plantea un caso arbitral en cuanto al idioma. En cuanto a la formación legal, todas estas situaciones que pueden ser fácilmente superadas cuando estamos mirando un universo de mujeres.  Isabella: Entendido. Muchas gracias, Elina. Creo que hay tantas cosas que quisiera preguntarte sobre todo lo que acabas de decir. Lastimosamente no tenemos suficiente tiempo, pero creo que estos son el tipo de espacios que simplemente nos abren la puerta para seguir discutiendo este tema tan importante. Creo que mi última pregunta hacia ti, que también se la quiero hacer a Rebeca, es el valor agregado sobre la diversidad de género. Porque hay autores en el campo del arbitraje internacional que argumentan que no hay ningún consenso o estudio que demuestre que se mejore la calidad de los laudos o la eficiencia del arbitraje como proceso por tener árbitros, mujeres, entonces un poco. La tesis es como no importa si son mujeres, si son hombres, simplemente necesitamos un buen laudo. Por qué la necesidad de tener estos personajes como a manera de cuota? Para ti, Elina, cuál es el valor agregado que representa tener más mujeres, árbitros y representantes de parte en los casos de arbitraje internacional?  Elina: Bueno, sería algo atrevido sostener que la incorporación de las mujeres mejora la calidad de laudos? No, tampoco somos casi iba a decir súper hombres, pero no somos superhéroes súper heroínas. Eso es para mí la principal ventaja central, ventaja y valor agregado es la atracción de talento que de lo contrario habría quedado invisibilidad invisibilizado debido a las restricciones del sistema que ya discutimos. Y es simplemente un sistema injusto de alguna manera, la que no permite surgir a las mujeres talentosas. Y es lo que las cuotas pretenden corregir. No mejorar los laudos, sino que abrirse a la entrada de más árbitras árbitros árbitras que están que se encuentran en condiciones para hacer buenos laudos. Cierto. Hay estudios que indican que las mujeres, por ejemplo, tienden a tener un mejor manejo en la interacción en las relaciones sociales y tienen una mayor capacidad para lograr beneficios sistémicos. Es decir, se en un pequeño punto cuando piensan que finalmente pueden obtener un logro sistémico mayor. Y lo anterior sin duda podría generar tribunales arbitrales más cohesionados. Deliberaciones más fluidas. Pero para mí todas esas ventajas son adornos nada agradables. Lo relevante es la atracción de talento que se está perdiendo.  Isabella: Creo que en eso estamos todos completamente de acuerdo. Lo que mejora un proceso es tener más talento, descubrir nuevas caras que puedan aportar excelencia a estos procesos. Entonces creo que ahí se demuestra claramente cuál es el valor agregado sobre abrir las oportunidades a nuevas caras. Con esto creo que terminaríamos nuestra ronda de preguntas. Agradecemos nuevamente tu acompañamiento y todos los comentarios en esta sesión y esperamos que podamos vernos y seguir comentando estos temas pronto. Muchísimas gracias por el tiempo, Elina.  Elina: Muchas gracias a ti, Isabella.  Isabella: Ahora, continuando con nuestra conversación, quiero preguntarle a Rebeca sobre los actores involucrados en esta discusión. Y es comúnmente aceptado que la equidad de género en el arbitraje internacional es, en general, un tema que involucra a todos. Y en tu criterio, Rebeca, quiénes son los actores más determinantes para cerrar la brecha de equidad de género en el arbitraje internacional?  Rebeca: Hola, Isabella. Antes que nada, me da un grato placer estar acá conversando contigo acerca de la diversidad de género en el arbitraje internacional. Y te agradezco mucho esa magnífica introducción y bueno, como bien has dicho con respecto a los actores más determinantes para cerrar la brecha de equidad de género en el arbitraje internacional, pues todos y todas somos actores determinantes a todos los niveles, somos responsables y jugamos un rol determinante en concientizar y cerrar esa brecha. Por ejemplo, yo soy una gran partidaria de listar mujeres en las listas de árbitros que se preparan para sugerirle a los clientes, lastimosamente a lo largo de mi trayectoria como abogada, pues la mayoría del tiempo no he tenido tanto éxito, ya sea por sesgo de parte del propio cliente o como me dijo algún socio alguna vez, en que esa persona pues no tenía gravitas o que bueno, la escuché hablando y habla muy bajo y claramente ese es un momento en donde es el abogado el que tiene quizás una gran responsabilidad en educar al cliente y viceversa en algunos casos para poder cerrar esa brecha claramente. Ninguna de las aseveraciones, pues, que he escuchado en el pasado, tienen algo que ver con el profesionalismo o preparación de estas mujeres. Y más que nada, esta es una tarea muy importante porque, por ejemplo, en el 2020, el Grupo de Trabajo Interinstitucional sobre la Diversidad de Género en los Nombramientos y Procedimientos Arbitrales publica un informe a través de la ICCA que documenta los avances hacia la consecución de una mayor diversidad de género entre los árbitros. Este informe fue actualizado recientemente, en el dos mil veintidós y este informe confirma en que creo lo que hemos venido hablando en este podcast de que ha habido mejoras en los nombramientos institucionales. Sin embargo, los nombramientos de por parte de las partes no han tenido una gran mejora. Las instituciones son en sí, posiblemente los defensores con la voz más alta de la diversidad en el arbitraje y quizás uno de los actores más eficaces. Creo que en este sentido también deberíamos hablar que los bufetes de abogados deben aumentar la visibilidad de sus abogadas invirtiendo en su formación, presentándola ante sus clientes. Esto que vayan a conferencias, participen en paneles. Los bufetes también deberían, pues mejorar. Y esto quizá sea parte de otro espacio. La retención y promoción del talento femenino es imprescindible tener mujeres en posiciones de liderazgo en los bufetes, tomando decisiones importantes y de hecho, hablando de los actores determinantes, creo es importante mencionar una anécdota que tengo de una buena amiga mía, árbitro, que era parte de un panel de árbitros donde ella era la única mujer, no solamente de ese panel de árbitros, sino también de los abogados de parte. Y ella consideró que los abogados la habían designado como una muestra de diversidad, dada la notable ausencia de mujeres estos participantes en ese arbitraje. Y basándose en eso, el tribunal consideró si se debía imponer costas a las partes por la falta de diversidad en sus filas. Entonces eso me pareció bastante interesante y si me parece de repente, que sea no como un tema o un punto importante que discutir. O quizás también tener en cuenta a la hora de que el tribunal los está viendo a los no, a las, a las partes, a los abogados de parte, quiénes son las personas de cada lado que tienen un rol importante. Y en ese sentido, me parece que los hombres también tienen un papel que desempeñar, sobre todo porque constituyen la mayor proporción de los altos cargos de en la industria y con ese poder tienen la gran responsabilidad de hacer valer el cambio a favor de grupos diversos y de la equidad de género.  Isabella: Muchísimas gracias Rebeca por esa cantidad no sólo de consejos prácticos, sino también reflexiones que se pueden aplicar en el día a día desde diversas perspectivas, no sólo desde el cliente, sino también desde el panel arbitral hasta los mismos abogados que son los que nominan a su y le presentan a su cliente los árbitros muy interesantes todos estos tips, como los veo yo y como le decía a Elina uno podría quedarse hablando de todo esto por horas, pero en vista del tiempo quisiera pasar a la segunda pregunta. Y es que en este momento hay varias iniciativas que promueven esta cerrar esta brecha de género y que si las sabes Rebeca, tu opinión frente al impacto que estas iniciativas como ArbitralWomen y Equal Representation in Arbitration Pledge, entre otras, tienen frente a la causa de la que estamos hablando. Consideras que son efectivas para fomentar la que te genio el sector? Piensas que están, digamos, moviéndose hacia el lado que todos esperamos o deberían tener algún twist, cuáles son tus opiniones? Y, sobre todo, porque estás internamente involucrada. Entonces nos interesa mucho saber cómo funciona y cuáles son los planes a futuro.  Rebeca: No, claro que sí. Isabella, esto mira, en efecto, yo precisamente por formar parte de la junta directiva de ArbitralWomen. No tengo duda que organizaciones como ArbitralWomen, iniciativas como el ER Pledge, entre otros, fomentan conversaciones y concienciación en torno a la actividad de género y al concepto de diversidad en términos más amplios. Por ejemplo, ArbitralWomen, este año cumple treinta años. Es más, hace dos días cumplió esos treinta años y en esos treinta años nuestra membresía ha crecido a más de mil miembros en más de cuarenta países. Además de crear redes y actividades sociales, ArbitralWomen se ha encargado de mantener un directorio de mujeres árbitros, patrocinar a mujeres estudiantes de derecho en competencias de tribunales simulados y trabajar con organizaciones sin ánimo de lucro para identificar a estudiantes prometedoras para becas y pasantías. Y lo cierto es que esta clase de organizaciones e iniciativas que promueven la equidad de género y diversidad en un término más amplio tienen que existir. Pero como me preguntabas acerca de los planes a futuros y voy a usar las palabras de Louise Barrington, que es cofundadora de ArbitralWomen junto con Mireze Philippe es que ellas esperan que en los próximos treinta años haya tal conciencia e inclusión tanto de mujeres como de otros grupos diversos a todos los niveles y esferas del arbitraje internacional. Que ArbitralWomen y otras iniciativas similares no tengan ya razón de existir. Entonces para mí eso me parece un gol, una meta que alcanzar en los próximos treinta años, en los que todos los que estamos involucrados en estas iniciativas trabajamos conjuntamente y al día a día para que eso pueda suceder. O sea, me imagino un mundo en donde no tengamos que tener ArbitralWomen porque es tan normal poder, por ejemplo, esto elegir a una mujer árbitro o tener más mujeres en las filas de los abogados de parte y demás. Y eso me pareció unas palabras con mucho peso y una meta quizás y probablemente alcanzable, que lo Barrington mencionó a base de los treinta años que estamos cumpliendo. Y es que, ArbitralWomen mientras tanto, verdad? Mientras tanto, seguiremos en ArbitralWomen y en otras organizaciones, seguiremos con nuestro arduo trabajo de ofrecer una plataforma a las mujeres a grupos diversos en donde puedan alzar su voz sin sentirse aislados. Hay tantas otras iniciativas como mencionabas que siguen avanzando la equidad de género en nuestra industria, que me parece que necesitaremos otro podcast u otro espacio para alistar cada una de ellas. Y el arduo y magnífico trabajo que siguen realizando respecto a la diversidad tenemos REAL que es el Racial Equality for Arbitration Lawyers lo con un enfoque en la diversidad racial de los miembros de la comunidad ArbitralWomen con un enfoque en la promoción de la mujer profesional del arbitraje y en la equidad de género. También tenemos a RAI Rising Arbitrators Initiative, que está enfocada en árbitros jóvenes o en sus primeras elecciones como árbitro, el ERA Pledge, enfocada en la equidad de género en las elecciones de árbitros. El ERE Pledge con un enfoque en la equidad de género en la selección de expertos. Y también tenemos Mute Off Thursdays, que es una plataforma en línea creada o que nació durante la pandemia por cuatro miembros de ArbitralWomen, en donde mujeres en el arbitraje con más de siete años de experiencia se reúnen todos los jueves por treinta minutos para llevar a cabo un intercambio de conocimiento e ideas. Recientemente, como habrás escuchado, Mute Off publicó el compendio de unicornios es una guía mundial de mujeres árbitros. Y este compendio pretende disipar ese mito de que existe un déficit de oferta de mujeres cualificadas para ejercer como árbitros. Y seguro habrás visto a ciertas mujeres que llevamos un pin de un unicornio. Y es precisamente por la mención que hizo alguna vez un árbitro de que buscar a una mujer cualificada árbitro en el arbitraje internacional era como buscar a un unicornio. Entonces, esto existen esos pins. Si. Si consigo más, pues te mando unos o podemos contactar directamente a Lucy Greenwood, que es la que los reparte. Y esto con respecto a todas estas iniciativas. Isabella, yo la verdad, para mí es un verdadero orgullo que Reed Smith es signatario de muchas de estas iniciativas y sus abogados, muchos de ellos son miembros en casi todas de ellas.  Isabella: Bueno, estaré esperando este pin con ansias.   Rebeca: Total.  Isabella: Creo que bueno, la verdad es que soy testigo también del impacto que este tipo de iniciativas generan en el ámbito del arbitraje internacional y cómo impactan individualmente, pero también a manera de colectividad. Entonces también comparto el orgullo de que Reed Smith sea signatario de varias de estas iniciativas y ojalá esperemos deseando que se acaben estos grupos pronto para que no tengan mucho muchas causas. Y Rebeca también quería hacerte una pregunta que le hice a Elina. Y es sobre la tesis que algunos autores en el campo argumentan sobre el hecho de que no hay un consenso o estudio validado que demuestre que se mejore la calidad de los laudos o la eficiencia del arbitraje por tener árbitros. Mujeres para ti. Cuál es el valor agregado que representa tener más mujeres, árbitros y representantes de parte en los casos de arbitraje internacional?  Rebeca: Bueno, antes que nada, yo sí pienso que el valor agregado es que le da más legitimidad al proceso. Creo que tener la perspectiva no solamente de una mujer, sino de un árbitro, no de grupos diversos. Esto ofrece una perspectiva distinta, quizás a la que no hemos estado, pues anuales o no lo hemos afrontado porque no lo hemos tenido. Yo, por ejemplo, he tenido la dicha de tener al menos una mujer en varios de los paneles, no de los que yo estoy presentando mi caso. Y si bien, pues todos los árbitros siempre han estado a un nivel de profesionalismo, no perfecto. Sí he notado, por ejemplo, que las mujeres tienden a ir un poco más al detalle a ciertas cosas que quizás en otras ocasiones podríamos pasarle por encima, por decirlo así. Y creo que eso tiene que ver más también por la perspectiva que traemos al caso. Entonces, si bien no hay un consenso, creo que tener esa perspectiva agregada o ese potencial de porque estamos hablando no solamente de género, sino esa interseccionalidad de género cultural, raza, esto, lenguaje, cultura o no de venimos de otros países y eso todo es un valor agregado que enriquece y le da una legitimidad al proceso que creo que deberíamos seguir desarrollando y aumentando.  Isabella: Totalmente de acuerdo y muchísimas gracias Rebeca, por esta información, por tus respuestas, por tus experiencias. Lo apreciamos muchísimo y esperamos poder seguir siendo parte de estos proyectos de seguir comentándolo y spread the word en la comunidad internacional de estas iniciativas tan importantes. De nuevo. Muchas gracias por estar acá y esperamos verte pronto.  Rebeca: Gracias, Isabella. Un placer. Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome, any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.  All rights reserved. Transcript is auto-generated.

In this “Spotlight on…” episode, host Gautam Bhattacharyya welcomes arbitrator and SVAMC AI Task Force chair Benjamin Malek (FCIARB) to discuss what led him to a career in international arbitration. The pair discuss the challenges and opportunities presented by new technologies like AI, and how to maintain and improve the effectiveness of arbitration in an ever-changing legal landscape.----more---- Transcript: Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. With that, let's get started. Gautam: Hello everyone and welcome back to our Arbitral Insights podcast series, and thank you for joining us. I am delighted to have with us as our guest today,  Ben Malek. Uh Hello, Ben. Ben: Hi Gautam, thank you for having me. Gautam: It's great to have you with us. Now, I'm gonna introduce Ben, but I'm gonna preface this by saying I love to see new arbitrator talent emerge and I'm unashamed about that. I love to see it. And Ben epitomizes this new number of arbitrators that I just love to see. Ben has got a very interesting background. Uh he's based in New York, but he – I'm gonna share some interesting stuff about him with you all. He's obviously a practitioner of arbitration. He's also an arbitrator and he has great experience of being in private practice and also working for institutions who deal with arbitration. And we'll come to that in the course of our discussion. He also speaks an incredible number of languages, which would, which certainly is something worth noting. So, so obviously, not only apart from English, but he also speaks fluent German, Romanian, Spanish and French, and he can also turn his hand very ably to Italian, Hebrew, Mandarin and Korean. And I'm just in awe of that, Ben. But so obviously, you can see we're talking uh to, to someone who's truly international. We'll talk a little bit about what you do Ben in the course of this podcast but for our listeners, Ben is with T.H.E Chambers in New York. And as I said, prior to his current role, he has worked in private practice at some major law firms and also with arbitral institutions. So, on that note, a huge welcome again to you, Ben and I'm much looking forward to our discussion. So let me ask you the first thing a little bit about your background because you, you do have a very interesting background just based purely on your geographic origins, your languages and how the world has just seen so much of you. But could you just tell us a little bit about your background and how you found the law and arbitration or conversely how law and arbitration found you. Ben: Thank you so much Gautam for inviting me such an honor to be on your podcast. I always look forward to the new episodes you have so it's uh it's truly a pleasure. Thank you. So I grew up in Germany. I was born and raised in Germany to Romanian parents and my maternal grandparents wanted to talk German to us because that's what first generation immigrants do. However, they spoke a very broken German because they're German just wasn't that good. So my mother had the idea of them talking to me in Romanian, which was their maternal language. And this way, I would have two languages once I hit kindergarten, which is exactly what happened. I talked Romanian at home until I started kindergarten, which is where I learned German. So that was the beginning of my duality, I guess. Later on my parents decided that an international school would be best for my brother and I, I have a twin brother by the way. So we went to an international school where languages was really emphasized. I was taught everything in English. English was my maternal language, German was my first foreign language. And that's when I started to really learn my other languages. French became my second foreign language, Spanish became my third foreign language. So by the time I graduated high school I was fluent in five languages. So that was uh extremely helpful at that time, and, uh, that's when I knew that I needed to do something with languages. Unfortunately, and just to give a little more background, I decided to pursue dentistry. I'm not sure if you knew that Gautam.  Gautam: No, I didn't know this. You're a man of many, many hidden talents. Ben, I had no idea. I I know now. Ben: So I went to dental school and because, because I grew up in, in Germany to Romanian parents, I always wanted to, to understand my origins and see where I'm from. So I went and studied uh dentistry in Romania. So while in Romania, I graduated dentistry, I came back to Germany and actually started practicing dentistry. At which point I realized that that might really not be the best career. And I'll explain why. I loved the attention to detail. I loved the artistry of it. But the one thing that I really couldn't deal with was talking to the walls. And what do we, what do I mean by that? When patients sit in the chair before you and you talk and their mouth is open, they cannot respond. And I never realized how much that would impact me psychologically. I felt like I was in isolation, I was talking to them and I talked to them in so many languages, but nothing was coming back. So at that point, I realized with my first year of practice that even though I like what I do, I don't think I could do that for the rest of my life. So I decided to go back and study law. And during my last year of law school, I got a job at BDO in Romania. And because of my languages, I was on-boarded on an arbitration which was held in English with a German party and a French party. And because they had somebody that spoke German and French, they decided to save some costs and have me translate. So that was my introduction to arbitration. And I thought it was wonderful. It was absolutely delightful, especially in a country where the judicial system is sometimes questionable in the sense that you may win for your clients, but you win such a small insignificant amount that you can't really consider it to be a win. I realized that arbitration is a true fairness out there and it is accessible. So it was that moment during that arbitration that I realized and decided to pursue a master's in arbitration, which I ultimately did. I went to the University of Miami where I pursued my LLM. I had the privilege to study under Jan Paulsson, Marike Paulsson, Carolyn Lamm, Jonathan Hamilton. And I really did have the privilege to study under Martin Hunter who has passed away just a few years ago. So it was, it was an amazing masters and that really gave me the basis to start my career in arbitration. Gautam: Well, now that's an incredible journey and a truly uh a diverse background, a truly a diverse professional background you've had and you know, thank you for sharing those great thoughts. Now figures while you're in international arbitration, because you truly are international Ben, in the truest sense of the word. Now you've mentioned some amazing teachers that you had in the law who are truly not just first class, they're world class in terms of names. But um I'm most interested to hear from our guests as to who they would say have been their biggest mentors and inspirations in their career. So if you were to look at your legal career, and it's not often that I do a podcast with someone who's a qualified dentist as well as a qualified lawyer. But there's always a first for these things. But in your career as a lawyer, I wonder if you could share with us some of those names who have been your great mentors and inspirations. Ben: Absolutely. I think all of us owe our entry especially in arbitration to someone as the saying goes, we we need somebody to open the door, we gotta walk through it ourselves, but somebody is always there to open the door. For me I really had, John Fellas was an amazing mentor. I got to know John during my masters and we've kept in touch ever since. What struck me about John was his humbleness and his absolutely striking kindness. I mean, I was a mere student who just got my feet wet and he always made the time, always respected my time, always trying to see how and where he can help me or brainstorm what to do or where to do. It was a true mentorship. And I value that, especially after so many years, I, I wouldn't be here without him. One more mentor that I can think of is Crenguța Leaua. She's um with LDDP in Romania. Over the years, we've got to know each other. She's just such an amazing practitioner who has truly shown me what there is to do and has helped me or help me guide my way into arbitration. So uh without those two, I wouldn't be where I am. But I would also say I really, I consider that every, every person I worked for in the past, every boss I had potentially got me into where I am. So that being said when I worked at the American Arbitration Association or the ICDR to be more, more precise, Tom Ventrone was an amazing mentor. I mean, I learned so much from that and it was interesting because I only got to know him once I was at the ICDR. I did, I quite frankly and uh I don't know if I should say this out loud, but I've never heard of him before. Um However, when I was there, I realized that I don't think the ICDR would be where it is without Tom Ventrone and his team. So that was absolutely outstanding. Gautam: Thank you very much. And you know, some really great names there, Ben that you've given, who've been your real guiding lights in your career so far and you, you're very fortunate to have had all of those people. Now, you've alluded to it in your answer that you just gave and I mentioned it in the introduction that you've worked at major law firms and you've worked for arbitral institutions. I wonder if you could share with us a few things that you've learned by having had the benefit of working on both sides of the fence, so to speak. Ben: I would say at first when I started off at institutions and in all disclosure, I didn't start my career at the American Arbitration Association, I actually started at CPR Institute in New York. I filled in this case manager after which shortly after I got the opportunity at the ICDR. The one thing I learned was really what an impact an institution can make and what a driving force it is in arbitration. Of course, I've learned and I've been part of adhoc arbitrations and that's when you really start to appreciate institutions and what they can do. So I really do value institutions for what they are. I believe the work is truly in vain. And during my time at the ICDR, I mean, it was high volume, in the sense that we administered many cases. And when COVID hit, it felt like those cases doubled even though they didn't. It was just that the traffic of email because nobody had any, any place to be. There was no traveling, there were no dinners, there were no vacations. Everybody was on their email all the time. But it was uh truly valuable. You learn how to manage your time, you learn how to manage other people's time and you learn how to truly value time and deadlines and how to set them fairly. During my time at the American Arbitration Association, I was truly privileged to be part of what they call IARC which on the international part is the International Administrative Review Committee. Where different challenges are being discussed and decided upon. So having been part of that and having seen many cases come in and out and the decisions thereof have really helped me to make better decisions as counsel. Once I, I left the institution. Gautam: I think that amazing kaleidoscope of experience that you had in private practice and with institutions brings us nicely to the next question I wanted to ask you. And this and again, I'll preface it with, again saying how much I love to see new arbitrator talent coming through. I love to see it because we need new talent, fresh blood coming in and you are certainly one of that group. And so I was mentioning that you are with T.H.E Chambers in New York. And I'd love you to tell us a little bit about the work of T.H.E Chambers where you are an arbitrator and including, first of all, if you wouldn't mind what T.H.E stands for a Ben. Ben: Thank you, Gautam. Absolutely. So, as a young arbitrator, I think it's interesting to see that there are not many out there and if they are, it is always combined with some sort of additional workload, whether that is tribunal secretary or they still work as an associate somewhere else or consultant. It, it it is self explanatory why that happens. Uh But I am privileged, I believe to be part of a small group of young arbitrators. And I, I think it's, it's highly important to understand that even young arbitrators do have a specific know-how that we would not have had 20-25 years ago whenever I'm approached or I'm asked about my expertise, I do unfortunately get the answer oftentimes that people didn't realize that a young practitioner could have so much experience or could have the pertinent know-how. And I think that's where arbitration really expanded and advanced in the last decade or two. We have master degrees at, at so many universities throughout the world. We have so many courses and we have so many practitioners willing to talk and mentor people that it is truly possible at a younger age to become an arbitrator. Gautam: I completely agree and if I'm not mistaken, the, you know, the, T.H.E Chambers stands for Tribunals, Hearings and Enforcement, is that correct Ben? Ben: That is correct. Absolutely. Yes, thank you. So, when I started off sitting as an arbitrator, I was approached and, and I happily work with Arbitra International out of London as a transitional member as they call it. And when thinking about it, I had two options. I could either say this is Benjamin Malek arbitration or I could start something bigger. And that was my goal. So when starting T.H.E Chambers, which as you said, stands for Tribal Hearings and Enforcements, the big challenge was what I call it. And despite the fact that T.H.E, it, it looks very nice together as ‘the', um it does stand for tribunal hearings and enforcements. And that is because I believe that those are the core points that any practitioner will always look for. Uh you need to have a tribunal for an arbitration, you need to have a hearing, any sort of hearing un unless it's a paper arbitration. Um And then the, either the arbitrator or the parties waive the hearing and you gotta make sure that any award is enforceable. So from my council of work that I started off with at the beginning of T.H.E Chambers, that was my expertise, the enforcement part of it. Uh that was also one of the most important aspects that I dealt with while at the ICDR when a case comes in that was the first question. How does the case look and will the award be enforceable? So that is one thing that I definitely learned at the institutions and that I carried with me to always look at the arbitration from the end rather than from the beginning, which is the enforcement stage. T.H.E Chambers -  that's what it stands for. Currently it is set up to on board more younger arbitrators worldwide because of COVID and then changes in COVID, we haven't gotten there yet but I hope we'll get there very soon. Gautam: I've got no doubt you will. And you know, and as the saying goes, if anyone's good enough, they're old enough. And there's no doubt that you and the team bring a lot of great energy and insight into arbitration and it's certainly not something that should be homogenous. So it's fantastic to know that you can bring all your talents to bear. I want to turn next to another aspect of what you do because I know that you are a member of the Silicon Valley Arbitration and Mediation Center and particularly its Artificial Intelligence task force. Now, one of the things that all of us will be very well aware of is that artificial intelligence, AI, is an incredibly happening concept. It's developing and it'll develop more and more and it has its role and will have its role in arbitration. I know that you've been part of the team that's been looking at guidelines for the use of artificial intelligence in international arbitration. And I wonder if you could just share some of your thoughts as to what the potential usage of artificial intelligence might be in international arbitration and some of the risks and issues that we should be aware of. Ben: Yes, thank you. So I have been a part of the Silicon Valley Arbitration Mediation Center for quite some time and um when the New York case versus Avianca came out where the claimants council used chatGPT to come up with cases and, and I use that word deliberately, ‘come up' with cases to use against Avianca. It turned out that all of those were in fact made up by chatGPT as uh what we would call hallucinations. The judge dismissed the case and uh actually sanctioned the attorneys. To that point, I realized that it is only a matter of time until this issue flows into arbitration, especially arbitration. We work in so many jurisdictions with so many different parties. And specifically, since COVID, most arbitrations have been online, some have stayed online, some still have a hearing component in person, but most of it is online. And the big question was, do we need guidelines for the use of artificial intelligence in arbitration? So I had discussed that with the leadership at the Silicon Valley Arbitration Mediation Center and they gave me carte blanche to see what we can come up with so I was privileged to have a team of experts help me draft the guidelines for the use of  AI in arbitration. My team was composed of Elizabeth Chan in Hong Kong, Orlando Cabrera in Mexico, Sofia Klot in New York, Dmitri Evseev in London, Marta Garcia Bel, which now is in New York, Soham Panchamiya and Duncan Pickard in New York. I was truly blessed, I would say to have these colleagues. It became a true adventure that we all went on when we started discovering what AI could potentially do and what could potentially be prevented. So we took around nine months to draft guidelines. We had no timeline, but we did come up with what I would say good guidelines or a good basis of guidelines in October, we have put it out for the public to comment on. Uh the commenting period is still open until December and institutions can comment until February. And the goal is not to come up with guidelines that people can use, but to get a full consensus of the arbitration community on how they would like to use these guidelines and what they believe is relevant. If something is not relevant, then there's no reason for us to have it in there. So that was the whole idea behind it. The other aspect we were looking at was when it came to cybersecurity, each institution came up with their own guidelines and quite frankly, they use different words, but they're saying the same thing. And we are hoping to avoid having several guidelines on AI and to comprise it all into one. I think it's gonna be a very difficult task. I'm not sure we will succeed, but we are giving all institutions the opportunity to give their input or it submits their commentary to the guidelines so that every practitioner could look into the commentary for the respective institution when the case goes to arbitration. We were looking at several aspects regarding the use of artificial intelligence in arbitration. Two main aspects are disclosure and confidentiality. With regards to disclosure, we actually have an open option for the community to vote on. And that is whether a two prong test should be used to decide whether a party or the arbitrator should disclose the use of artificial intelligence or whether it should always be up to the parties to decide or to as the tribunal for opposing party to disclose the use of artificial intelligence. We weren't sure internally, we debated heavily and we came to the conclusion to leave that question up for the public to decide on. Um it did come back or as of now, the results are interesting, which is that in Europe, there is a more libertarian approach. Whereas uh the US and some common law jurisdictions voted for a two prong test, which I believe to be quite interesting, uh quite frankly. Um if this continues to be open ended, we might leave it up to the parties to decide which option they would ever put in. But ultimately, the goal is to draw awareness of the use of AI to let parties and arbitrators as well as council understand that artificial intelligence is not open ended. That if it's used outside a closed circuit information can be leaked or can be disclosed one way or another and to just draw attention to the fact that A I can only be used to disclose information, but also to create other sorts of the information that would otherwise not be there. Whether that is good or bad will be up to the parties to decide, but it is important to understand what AI can do and what the consequences are. Gautam: I agree with you and it's something that's gonna develop and develop. There's no doubt about that and we've not seen the last of it. I mean, it's gonna be happening for sure. And we just have to see what does transpire, but look, thank you for your great work on everything you're doing. You're not just, you know, doing arbitrations, you're doing thought leadership, you're driving all of these things and it's really great. And uh I'm just, you know, and I look forward to talking to you more about these things as these things progress. Now with these podcasts, we, we always end our podcast with a little bit of lighthearted conversation because I think our listeners will have got a really good handle on your incredible talent in the course of this podcast, your thoughtfulness and your experience. What I want them to also get a feel of is some of the more fun side of things. Now, I know Ben that you are a very proud daddy to a couple of daughters, one of whom is really a newborn. And uh, and I've, and I'm just so ecstatic for you and Rebeca on your two daughters. But let me ask you this when you do have some spare time from not being a, a very busy daddy as well as a very busy arbitrator. What sort of music do you particularly enjoy listening to? Have you got any favorite bands or groups or singers or even a favorite album that you love to play? Ben: Regarding music that's an interesting topic. Before I went on my dentistry career I actually worked in music management. Gautam: you are so multitalented. It's unbelievable. Go on. Sorry. I just could not resist saying that. Ben: Yeah. No, thank you. It's uh I, I just like life. I like life. Life is important. It's what drives us. I will say this and, and you know, thank you for the question. But we all live to work, but we also work to primarily live. And I think it's really important to, to, to know that I always believe that one of the most important things in life is to live and to know how to live. So, uh I did get into music management very early in my life. We were host to several big names, but to answer your question, my favorite music, as I always said is good music. I especially nowadays where the charts are filled with explicit lyrics. I actually like to go back to the Beatles. The Beatles are one of the foundations I believe of modern music. Now, given the fact that a new song was actually just released with the help of AI, I think that it's, it's worth to go back and, um, and really understand the changes that as Sir Paul McCartney, um and his colleagues have made. Yeah, I would definitely call The Beatles my favorite music. Gautam: Oh, fantastic. Well, it's, you know, that's a great choice. And, uh, you know, again, as a first, I've never done a podcast with someone who worked in music management, then who, who became a dentist and then became a lawyer and who can speak about 10 languages. So this is a complete first for me. So let me just ask you one last question in this podcast. So, you know, you are a very international person and we ascertain that just from speaking to you in the course of this podcast and you've no doubt traveled very widely because you've worked around the world in many places. Is there one place apart from where you grew up, okay, so excluding that, is there one place in the world - and excluding New York where you live - ok, Is there one place that you just love traveling to? Ben: Oh. That's a difficult question. I would have to say, I've always enjoyed traveling to London. My brother is actually a physicist and he did his PhD in Cambridge. I thought those were the most fun trips I've ever had. To fly to London Cambridge is, is amazing. Uh Whoever hasn't been uh it is really missing out. London is just stunning. I mean, the amount of history and just the culture and the multiculture you have. It's, it's just, it's great. Um I guess uh deep down I am a European so London is always there. Paris is absolutely yeah, romantic. I mean, I am married with two kids so Paris is always, it is always a good idea. Gautam: Yes. Ben: Yeah. The only thing I would add is I love, I would love to see more of the world. I do want to travel and see places. I I've never been, I haven't been to Australia yet, but in general, I would love to go see, I hope to go to Hong Kong maybe during ICA, maybe not, but just to see Hong Kong and see uh see more than I have seen yet. Gautam: Fantastic. Well, look, Ben. Thank you. It's been an absolute delight to speak to you in this podcast. Thank you for being such a superb guest and for sharing all of your stories and your background, your thoughts. And uh I look forward to seeing you very soon. You know, I hope you'll because we're recording this podcast on a Friday. So I hope that you will have a great weekend and I look forward to seeing you in person soon. Thank you. Ben: Thank you so much Gautam, Likewise. And if I may just end on one note, I do wanna thank my wife. I don't think I would be the person I am without her. And she inspires me to be a better person every day. Gautam: You know that I, I think that's so fitting Ben. And I'm gonna say this in response, I'm going to say two quick things in response to that. One, you're absolutely correct because I have the great honor and privilege of knowing Rebeca. And I know that she's a wonderful, wonderful lady and you are indeed very lucky to have her. And I also will say the second thing I will say is that many years ago, a judge got sworn in as a Supreme court judge here and one of the former Supreme court judges who was giving a speech when he became a judge said that behind every successful man, there's a surprised woman and Rebeca shouldn't be surprised at how successful you've been. But you know, you are very fortunate to have her. So thank you for mentioning her. Ben: Thank you. And thank you for having me, Gautam. It was an absolute pleasure looking forward to meeting you in person. Gautam: Looking forward to that. Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney client relationship nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome, any views, opinions or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. All rights reserved. Transcript is auto-generated.

In the latest episode of our Greener Arbitrations podcast series, Alison Eslick and Vanessa Thieffry moderate a spirited debate between Michelle Nelson (Dubai) and Clément Fouchard (Paris) as they explore the pros and cons of electronic signatures and notification of awards, including discussion on recognition and enforcement, cost savings, technology challenges, convenience, security risks and resistance to change. ----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. Welcome to our Greener Arbitrations podcast miniseries where Reed Smith's International Arbitration lawyers will be exploring the legal and technical issues involved in reducing the environmental footprint of arbitrations. I'm Alison Eslick, an International Arbitration lawyer at Reed Smith's Dubai office and I am Vanessa Thieffry, an International Arbitration lawyer at Reed Smith's Paris office. In these episodes, we will hear from leading arbitration practitioners and external speakers and discuss insights, news and trends relevant to greening arbitration and the challenges that are entailed. We hope you enjoy this episode. Vanessa: Welcome back to another exciting episode of Reed Smith's Arbitral Insights. I am Vanessa Thieffry and together with Alison Eslick, we are delighted to host the sixth and final episode of our Greener Arbitrations miniseries in which lawyers of Reed Smith debate, how to reduce the environmental footprint of arbitrations. In 2022 Reed Smith launched an initiative to reduce the environmental footprint of our arbitrations. We quickly identified the need to raise awareness both internally and externally and organizing a podcast miniseries on greener arbitrations appeared as an obvious tool to do that. In the five first episodes, we addressed arbitration agreements and whether they should include sustainability measures, the campaign for greener arbitrations model procedural order and whether it was unavoidable. The topic of hard copied submissions in which we wondered if they were a thing of the past witness and expert preparation and whether video conferencing can match in person meetings and in person hearings and whether they are still worthwhile. If you haven't listened to them yet, they are available on Reed Smith's podcast channel, Arbitral Insights. Alison: Thank you, Vanessa. Now, in this episode, we focus on the entire points of going to arbitration and that is of course obtaining an enforceable award. So recently we see more and more institutions notifying awards by email and arbitrators signing awards electronically. Now this may well be greener, but when it comes to something as important as the final award, is green always better? So that is the question that our debaters will tackle today. I do have a short disclaimer as we always do with these debates, our debaters have been assigned the positions that they are advocating and this is so they can fully advocate for or against the proposition. The debate is of course role playing and none of the views expressed during the debates should be attributed to Reed Smith, the debaters themselves or of course any of our clients. So joining us today for this challenging topic, uh Reed Smith partners Michelle Nelson and Clément Fouchard who will present their primary positions and then each will have a chance for rebuttal. Vanessa: Thanks Alison. Let's see what our first speaker has to say. Clément Fouchard is up. Clément is a partner in Reed Smith's Paris office in the Energy and Natural Resources Group, focusing on international commercial and investment arbitration. He has over 16 years experience advising on major litigation and arbitration proceedings in particular in complex disputes in construction, energy and infrastructure, mining defense and distribution sectors. As well as considerable experience with joint ventures, imposed acquisition disputes. In addition to acting as counsel Clément acts as an arbitrator in domestic and international arbitration. Clément, the floor is yours. Clément: Thank you, Vanessa and Alison. I'm very happy to be with you today and to argue in favor of green arbitration, electronic signature and notification of rewards. Is green always better? So yes, green, that is the use of electronic signature and electronic notification of rewards is always better. And I will explain why. First a definition, an electronic award or e-award is an arbitral award that is signed digitally by the arbitral tribunal and emailed to the parties directly or if an institution is involved for transmission to the parties by the institution. First, I will start by saying that the appeal and desirability of electronic awards cannot be denied. In a survey published last year in the Journal of International Arbitration, questions were asked to leading arbitration institutions regarding the use of and practice of electronic awards. The participants overwhelmingly agreed that electronic awards are faster, 95% of the response. Cheaper, 85% and better for the environment, 80%. So let's look at those three criterias. First of all speed, while it is true that in some jurisdictions, it may take time to obtain a detailed signature for the first time. It cannot be denied that an award can be signed by the three arbitrators and sent to the parties by email in a manner of minutes. The same cannot obviously be said for hard copies awards that need to be printed out, circulated among tribunal members for signature and hard copy original notified by courier service. As to cost, now again, there is little doubt that an electronic awards are most certainly cheaper since they can often be prepared at no cost at all given that one, e-signature software are often for free and two, the sending being done by email, there is no additional cost and this is to be compared with courier service costs for all the back and forth required to have the award being signed by all members of the tribunal and then harm to the environment when electronic awards save paper because they do not need to be printed. This is abuse and reduce the emission of greenhouse gasses because they do not require physical transportation. Of course, electronic rewards are not entirely without carbon footprint, either data storage and related energy consumption have a certain, albeit, I submit a very small impact on the environment, however, the data storage needs of a paper award are in practice greater than those of electronic award. As to the COVID-19 crisis, put the world on hold. The legal community, and international arbitration in particular had to adapt and they actually adapt in a new way of working where online meetings and online hearings, it became the norm. So looking at e-signature of arbitral awards, there is clearly a growing trend amongst the major arbitration legal system, the vast majority of arbitration laws and institutional rules require the award to be in writing and to be signed. These requirements have primarily evidentiary functions and they have therefore little to do with the written text in digital or tangible formats. And this is the same situation regarding e-signature awards which will depend upon the electronic signature law, which in most cases would in principle allow the e-signature of arbitral awards. The New York Convention does not prohibit the electronic signature of awards and therefore most reductions should permit the arbitral award to be signed with any signature of awards. The issue of e-signature should be assessed, therefore, as the applicable at the applicable law level in this respect, we note that there is a growing number of jurisdictions allowing the signature of arbitral awards electronically. Looking first at France, Article 1366 of the French civil code provides that an electronic document has the same evidential value as a paper document provided that the person from whom it originates can be duly identified and that it is drawn up and stored in conditions that guarantee its integrity. So as we can see, the focus is made on the originality and the integrity of the electronic documents. Once this requirement is satisfied, French law grants the electronic document the same evidential value than a paper document. The legal framework dealing with the authentication of e-signatories has been based in France on the requirements of the EU regulation which deals with electronic identification and trust services for electronic transactions in the internal market. So we have actually a legal framework in place and I could continue with the United States with the Uniform Act of 2000 which requires that an award must be signed or otherwise authenticated by an arbitrator. An arbitrator can therefore sign an award with an electronic signature. In the UK, the draft reform of the English Arbitration act explicitly unfazed that there was no need for an explicit reference to electronic signature and notification of words as these are already authorized and I can continue on and on. As to e-notification, the arbitral award uh is also on the rise. Taking again the example of France Article 1519 paragraph three of the French Code of Civil Procedure states that notification of international arbitral awards shall be made by service,  meaning by bailiff, unless the parties agree otherwise. This means that the parties can agree to another means of notification such as in the context of ICC arbitration, the electronic notification of awards by ICC Secretariat. So in conclusion, I submit that those solutions in e-notification and e-signature of rewards are more and more used and should be the preferred way in the international arbitration practice. Alison: Thank you very much Clément, some excellent points made there. And I do remember printing those thousands of pages back in the day. So let's see what our second speaker Michelle Nelson has to reply. Michelle Nelson is a partner in Reed Smith's Dubai office. She sits in our global Energy and Natural Resources Group. Michelle is a specialist arbitration lawyer with 27 years of experience advising a variety of clients on oil and gas and construction disputes. She is a qualified solicitor advocate. She sits as arbitrator on regional disputes and also has rights of audience before the DIFC courts. And I do have to mention that she is the only female in the Legal 500 Hall of Fame for Construction and has been ranked in the 2024 edition of  Who's Who Legal for the Arbitration category. So Michelle take it away. Michelle: Thank you very much, everyone and I'm delighted to participate in this Greener Arbitration podcast series and particularly on the topic of e-signatures and e-notifications of arbitral awards. I've been tasked today with arguing against the proposition that my colleague Clément put forward and specifically why in the case of e-signatures and e-awards, a greener approach is not always best. So my colleague Clément made some interesting points but there are fundamental reasons why parties should cautiously approach e-signatures and e-notifications of awards, even if they are better for the environment. A point which certainly from my side is itself is debatable, but there's specifically three points against the proposition that I'm going to be considering in some detail. First, the end goal of any claimant in arbitration is to have an enforceable award. And I think Clément agrees with that proposition. Whilst e-signatures and e-notifications of awards may well be a greener option, they will not necessarily be valid and enforceable in every jurisdiction and this requires a cautious case by case approach. If the award is unenforceable, then greener clearly is not better. Secondly, parties and tribunals who accept e-signatures and e-notification of awards open themselves up to a host of potential cybersecurity and data integrity risks. Even the largest law firms and the most prominent barristers chambers have been victims of hacking and data leaks. And as the world becomes increasingly more reliant on digital technology, these risks are expected to increase. This is the downside or perhaps I should say the dark side of opting for e-signatures and e-notification of awards. Thirdly, I have to question whether my opponent's claims that e-awards are demonstrably better for the environment at all. I suggest that in practice, the positive environmental impact of signing an award with an e-signature or notifying an award by email has perhaps been grossly exaggerated by my opponent. Whilst one could argue that every little bit counts, there are several other areas of arbitration and we've, we've, we've heard about those in terms of the printing of bundles and thousands of pages of submissions and issues of virtual hearing e-bundles and the like which certainly I would suggest should be prioritized. So taking down each one of these points. Firstly, the issue of enforcement now arbitration, in contrast to other ADR mechanisms has the advantage of a binding decision at the end, making it a viable and well established alternative to traditional litigation. Any doubts about enforceability of an award puts at risk, the whole purpose of the arbitration itself. The use of e-awards and e-signatures is particularly risky in the context of international arbitration. Each jurisdiction has its own different requirements as to the validity of enforceability of awards ranging from the need for a wet ink signature to an originality requirement where it will be expected that a hard copy original award will be provided. Awards with e-signatures, or that have notified by email only, will not suffice and are likely to lead to increased costs and prolonged legal battles around enforcement. Now, my opponent Clément gave a shopping list of examples of countries which theoretically allow for e-awards. Yet the countries mentioned only included Western European countries and the U.S. So I do have to ask, what about the rest of the world? e-Awards may not be enforceable in a number of countries. So care must be taken. Whilst I accept my friend's argument that national courts of some countries are moving towards acceptance of digital methods, we simply aren't there yet. The suggestion that scholars may argue that e-awards cannot be challenged will not give clients much comfort when a court says no. Here in the UAE for example, there are currently a number of cases in the courts and have been sent to the courts where nullification proceedings have been put on hold. Whilst the tribunals have actually been told to go away and reissue awards and sign them in wet ink, which not only of course, is increased time, it causes increased cost as well. And the risk the award will not be enforceable in any event. I should note that the Chartered Institution of Arbitrators has also given some reluctance in its guidance and said that even though digital technology is rapidly becoming a widely accepted business and legal tool, it's advisable to keep key procedural documents in both soft and hard copies containing signatures of participants where necessary. So again, this is suggesting a cautious approach. So the bottom line, I would say any party considering use of an e-award or e-signature perhaps should obtain an opinion from local council first to make sure that there is not a risk in that individual jurisdiction. Clearly greener is not better if the award is unenforceable. Secondly, although data security risks are inherent in any form of electronic communications, the stakes are higher when it comes to e-awards due to their commercially sensitive and confidential nature. Confidentiality is one of the many factors that makes arbitration more attractive than litigation. Yet, a cybersecurity threat puts this at risk. Big businesses may well have excellent firewalls but many arbitration parties are smaller businesses without top class IT support. When it comes to a final award there are good reasons why it's worth having a hard copy in your office safe. And doubts could also be raised as to the authenticity of e-signatures used and the award itself. For example, courts may question whether the integrity of the e-award has been preserved and whether or not the award was safeguarded against later modification. One can imagine an enforcement scenario where a fraud has been committed and local courts do not have the means to authenticate thee-award, even if the local law ordinarily permits its enforcement. Now, I accept my friends point that some jurisdictions including the EU and specific EU countries like France have taken regulatory steps towards developing a framework to protect against forgery and other mischief involving e-signatures. But again, this does not include the majority of the world's countries. And in fact, underscores the very real risks that e-signatures present. And statistically, I think it's right to say that much of the world's users of arbitration is not necessarily in the EU. As for e-notifications, email does not provide the same level of certainty as a courier delivered and signed for paper award, a standard email will not inform the sender as to whether or not the recipient had received it, the email might be shown as sent however, there's no certainty as to whether it has in fact been delivered and given the sheer volume of email traffic, one could even imagine a scenario where a party misses that all important email. And if the award needs to be annulled time will be ticking to file those proceedings with irreversible consequences if a time bar is missed. So lastly, even if one were to disregard all of the things that I've said so far, we need to consider whether or not e-awards make a significant difference for sustainability. My friend was keen to point out the benefits of online hearings, general correspondence and so forth. But this debate is focused on e-signatures and e-awards. Now I accept that it is not ideal to fly several copies, an arbitration award around the world to be signed by three arbitrators and then delivered to the parties. Yet in the grand scheme of an arbitration carbon footprint, it is a relatively small package being carried on a large airplane that was making the trip anyway. While arbitrations do have a significant carbon footprint, studies show that energy use powering law firm offices and air travel for in-person hearings are the top two biggest causes of CO2 emissions in arbitrations. Apparently 92.7% of carbon emissions for hearings come from flights alone that if we really want to make arbitrations greener, our priority should be on those areas instead. So in closing, it comes down to a cost benefit exercise. Parties should ask themselves whether the benefit of a small reduction in paper waste and CO2 emissions is worth the risk of an unenforceable award. Indeed, a recent Queen Mary International Arbitration survey confirmed that participants are generally not overly enthusiastic about receiving an e-award. Only 14% stated that they wanted awards to be signed electronically. It seems that people have spoken and would agree with me that when it comes to e-awards, greener is not always better. Thank you. Vanessa: Thank you, Michelle. There are some very compelling arguments here. Both sides have made extremely strong arguments but how do we tell them apart? Well, it's time for rebuttal starting with Clément. Clément, what do you have to answer to Michelle? Clément: In response to Michelle's very interesting points I will limit myself to the following three remarks. First, as to enforcement of awards. As I said earlier, the question of enforcement must be resolved by looking at the applicable law and national solutions may vary from one region to another. That said, I also note that one, the New York Convention is silent on the delivery of the awards to the parties and two, although the risk regarding enforcement of e-awards has been expressed in relation to the formal requirements of an award, question of due process or international public policy, the reality is that e-awards cannot in fact be seriously challenged on those grounds. As mentioned earlier, formal requirements have in reality very little to do with the format digital or tangible of the substantive text of the award. As to due process requirements, a party must be given proper notice of an arbitral proceedings. And nowadays, emails are an accepted mode of giving notice while there are issues such as being unable to prove when a party receives an email. Email software has made it simpler for a sender to be notified if the receiver of the email opens a particular email by creating provisions of read receipts. And for instance, in another instance, the High Court in India has held that a notice sent on WhatsAppp was actually good service. And finally, the rendering of e-awards does not breach international public policy as we actually failed to see what would be the valid ground in this respect. Two on cyber security and online arbitration, I've listened to the legitimate concerns raised by my learned colleague. While these concerns should not be ignored, I submit the risk is that link, again I would say, to the form of the original award electronic or paper because in either case, the arbitrators can be hacked and the award tampered with. The reality is that both wet ink and e-signatures can be forged. And the difference lies in reality in the way in which the fraud is proven or discovered for a paper signature with the help of an expert, a graphologist expert, and for the electronic signature with the help of an IT specialist. The real issue is how to ensure that the signature on the award is not forged. As to online signatures are used additional requirements may be imposed. In application of the EU regulation mentioned earlier, French law, for instance, has created four different levels of security in which signatures can be categorized. The two highest levels are recommended to companies for their contracts and agreements where e-signatures are certified as having the same value of a paper hand signature. And there are numerous specialized IT platforms, and I will mention for instance, DocuSign, which has been certified by the French government to ensure the integrity of e-signatures. Last points, e-signatures and notification of awards in arbitration constitute a means to tackle the climate change problem. As it allows to reduce, reducing the impact of arbitration on the environment. They have a direct effect on paper consumption. And two, they have also an impact in reducing the need for air travel. As we know every step count and as international arbitration is taking the green transition turn e-signature and e-notification of rewards must be adopted on a wider scope. Thank you very much. Alison: Ok. Our time is up for this episode and we would like to thank warmly Michelle and Clément for their time and precious insights on this topic. Vanessa: This was our last episode for this miniseries on how to reduce the environmental impact of arbitration. But we will revert soon with a new topic. Until then, thank you for listening to our Arbitral Insights Greener Arbitrations podcast series. We hope you enjoyed it. Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com, and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice, and is not intended to establish an attorney-client relationship,  nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. All rights reserved. Transcript is auto-generated.

James Willn, Ana Ulseth, Chris Edwards and Mathilde Adant debate the environmental impact of in-person vs. remote hearings. Hosts Alison Eslick and Vanessa Thieffry moderate the session in which debaters discuss technological issues, security challenges and the financial and psychological impacts of remote hearings.  ----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. Welcome to our Greener Arbitrations podcast miniseries platform where Reed Smith's international arbitration lawyers will be exploring the legal and technical issues involved in reducing the environmental footprint of arbitrations. I am Alison Eslick, an international arbitration lawyer at Reed Smith's Dubai office. And I am Vanessa Thieffry, an international arbitration lawyer at Reed Smith's Paris office. In these episodes, we will hear from leading arbitration practitioners and external speakers and discuss insights, news and trends relevant to greening arbitration and the challenges that are entailed. We hope you enjoy this episode. Alison: Welcome back to another episode of Reed Smith's Arbitral Insights. I'm Alison Eslick and together with my colleague, Vanessa Thieffry. We are delighted to host the fifth episode of our Greener Arbitrations mini series where lawyers of Reed Smith debate how to reduce the environmental footprint of arbitrations. In 2022, Reed Smith launched an initiative to reduce the environmental footprint of our arbitrations. And we quickly identified the need to raise awareness both internally and externally and organizing a podcast mini series like this on Greener arbitrations appeared a really obvious tool to do that. In the first four episodes, we address these topics: arbitration agreements and whether they should include sustainability measures, the campaign for Greener Arbitration's Model Green Procedural Order and whether it was unavoidable, the topic of hard copy submissions and whether they were a thing of the past, and witness and expert preparation and whether video conferencing can really truly match in person meetings. So if you haven't listened to the podcast yet, please do tune in. They're all available on Reed Smith's podcast channel, Arbitral Insights. Vanessa: Thank you, Alison. So in this episode, we focus on the hard part hearings and more particularly whether in person hearings are worth their while. As compared to virtual hearings with the COVID-19 pandemic, we kept on arbitrating and the arbitration community got into the habit of virtual hearings. Although at first voices of concern and caution were raised in the aftermath of the pandemic. Virtual hearings remained and in-person hearings often have a drastic environmental impact. A case study recently revealed that for a given arbitration, the in-person hearing gave rise to 19 times the carbon footprint of a virtual hearing. Mostly because of the flights of the arbitrators, experts, counsel and witnesses, et cetera, all these people involved with the hearing to get to the hearing venue. So a few, few years back, let's take stock. Are in-person hearings still worth their while? Short disclaimer, please note that for the purposes of these podcasts, our debaters have been assigned the positions that they are advocating. This is because we felt that topics would be better explored if one team fully advocated their position for or against the proposition. The debaters are thus role playing and none of the views expressed during the debates should be attributed to any of the individuals participating in the debates or Reed Smith or any of its clients. Alison: With that said Vanessa, let's start. The first speaker of each team will make their arguments for and against the proposition and a second speaker will make a rebuttal. So the first speaker up is Ana Ulseth. Ana is an associate in Reed Smith's global Commercial Disputes Group in our Miami office. Her practice focuses on international dispute resolution across a myriad of sectors including complex litigation in state and federal courts as well as international commercial and investment arbitrations. Now, Ana is also an eager Reed Smith Greener Arbitrations ambassador. So, Ana, the floor is yours. Why are in person hearings worth their while? Ana: Hello, everyone. And thank you Alison and Vanessa for the kind invitation to join you. I'm thrilled to be here discussing this pivotal topic. In-person arbitration hearings are worth their while. And when I say this, I rely on two main points. First, it is easier to safeguard due process concerns in in-person hearings. As we know, a hearing is one of the most pivotal important junctures in an arbitral proceeding. Generally, a hearing encompasses the exchange of arguments and evidence. The ability to be heard and mount your case or defense is a cornerstone of due process and the requirements of procedural equality and fairness permeates all faces of an arbitration. Article five of the New York convention sets forth limited grounds on which recognition and enforcement of an award may be refused. One of those grounds includes when a party is otherwise unable to present their case as a ground for refusal. Being able to present arguments and evidence in person significantly aids in the conduct of a proceeding that is compliant with due process principles and that helps to secure the sanctity of an award. Everyone from council to the tribunal has more control over the proceeding during in-person hearings. Things like cross examinations and breaks along with any last minute issues that may arise are easier to address when you have everyone in one room. Now, due process or equality may be infringed upon by technological issues experienced by parties during a virtual hearing. For example, if one party is affected by technological issues but not the other this may infringe equality in an ongoing proceeding. Additionally, although the tribunal has the discretion depending on the arbitration agreement and applicable rules or treaties to assist the parties with the determination of whether hearings will be in-person or virtual. This raises potentially challenging questions regarding how the tribunal can make the right call when the parties are in disagreement. Some questions that might arise here are, how will the tribunal ensure that the decision making process is fair to both parties in determining whether to require in person or virtual hearings? What test can be applied and how will the burden of proof be taken into consideration to ensure the ruling is fair and equitable? At the end of the day as council, we have a responsibility to provide zealous advocacy and act in the best interests of our clients. Certainly, this includes preserving the sanctity of an award and indeed, this is more easily achieved in-person. As to my second point which is closely related to the first, in-person hearings provide counsel with more control over the entire proceeding. Various surveys have shown that parties have trepidations about virtual hearings. These trepidations include beliefs that it is harder to concentrate during a virtual hearing than it is during an in person hearing, that virtual hearings may be less secure or confidential. But the impact of any witnesses cross-examination might be diminished by virtual hearings. And that if virtual hearings are to be widely used changes will be required to the civil procedure and arbitration laws of certain jurisdictions. Additionally, virtual cross examination may also not be helpful if there are audio or video distortions, freezing of images or time lapse. Certainly behaviors observed virtually can more easily be over-interpreted or simply erroneously interpreted. Moreover, as advocates, our opening and closing statements are physically and intellectually demanding performance tests. There is a tangible advantage to subjecting opposing counsel and witnesses to these demanding experiences in person. There is no question that virtual hearings are more comfortable for everyone but comfort is not our guiding principle. And while virtual hearings are certainly greener and better for the environment, we should only opt for them if and when it is in the best interests of the client and their case or defense. Lastly, on this point, nonverbal communication is very challenging to understand in virtual hearings. Our job as advocates is to facilitate the tribunal's decision making process. A variety of studies has shown that a range between 55% to 93% corresponds with non-verbal communication. And this is facilitated in in-person hearings in the same room as the tribunal, the witnesses, the parties and the experts. In essence, to sum up my argument, the potential for connectivity issues, frequency of breaks and unexpected interruptions are higher with virtual hearings and have the potential to affect the due process of a proceeding. Vanessa: That is a very strong argument. But let's see what our second debater, Mathilde has to reply. Mathilde is an associate in our Paris office and her practice focuses on international commercial arbitration, especially in the construction and energy sectors. She is a part of our Energy and Natural Resources Group. Matilde will now advocate the position that in-person hearings are not worth their while. Mathilde: While Ana has made a compelling case for the enduring merits of in-person hearings, I will present the reasons why their benefits do not outweigh the virtues of virtual hearings. My starting point is maybe the most obvious downside of in-person hearings which is their environmental impact. International arbitration generally involves parties from different countries or continents. And in this context, virtual hearings minimize travel for all participants including arbitrators, parties, council experts witnesses and court reporters. They also eliminate the need for extra physical infrastructure such as venues and offices which typically contribute to a significant carbon footprint. Second, contrary to what we can sometimes hear making an environmentally conscious choice in favor of virtual hearings does not have to go against efficiency, due process or the client's best interests. Nowadays, technological advancements have made virtual hearings effective and secure. We now have access to high quality video conferencing, secured through robust encryption mechanisms and cybersecurity measures as well as advanced tools for evidence presentation. These technological advancements are perfectly able to ensure the integrity and fairness of the arbitration process. Any concerns regarding technological glitches and data security can be mitigated through continuous improvement and investment in robust technology infrastructure. Furthermore, technology has evolved to bridge the gap in conveying nonverbal communication through, for example, uh video conferencing, screen sharing and advanced virtual collaboration tools. Virtual appearance can also be less intimidating for witnesses which may look for a more open and honest communication. A third point in favor of virtual hearings, which may be more convincing to clients in particular is the fact that they allow parties to save time and costs. As we know, traditional in-person arbitration hearings can be very expensive. They add to the already significant legal costs, costs of travel, accommodation, meals, as well as the costs of renting the hearing venue. All these costs are significantly reduced in a virtual hearing. Virtual hearings can also save a considerable amount of time. They eliminate the travel time for all participants and substantially reduce the time spent on logistics and administrative matters such as securing venues, making travel arrangements and so on. Beyond this, the flexibility and convenience of virtual hearings means that they can be scheduled more easily and that they can be conducted more efficiently. For example, because they allow for the use of time saving tools such as simultaneous interpretation, shared screens or chat features. This reduction in time spent by arbitrators consulting experts also reduces costs for clients. And this decrease in costs also means that individuals or entities with financial constraints can participate without incurring travel and accommodation costs. This makes arbitration which is often considered expensive, more accessible as a dispute resolution method. So as demonstrated by these numerous benefits, the incorporation of technology into legal proceedings makes virtual hearings not only a formidable contender but the ultimate victor over in-person hearings. Alison: Thank you very much, Mathilde. Wow. I mean, I find myself conflicted and agreeing with both Ana and Mathilde at the same time. So let's test these arguments further. We now move on to rebuttal. Uh and Chris Edwards will take the floor. Now, Chris is a council in our Dubai office and a member of the Energy and Natural Resources Group. He has over a decade of experience advising clients on the complete life cycle of construction projects and disputes across the Middle East, Africa and Asia. So Chris, I believe you will advocate for the affirmative. Chris: Hi everyone and thank you to Vanessa and Alison for inviting me to join this podcast today. I want to start by addressing the presumed environmental impact of virtual hearings. And I think there are a number of assumptions that are made about the green credentials of virtual hearings and also in person ones for starters virtual hearings may still require travel, virtual hearings are rarely ever conducted from each person's home. Participants will often congregate across hubs. For example, arbitrators may sit together or the parties and their respective lawyers in their respective officers and equally travel for in-person hearings can be limited, for example, by appointing arbitrators, lawyers experts, all of those can be appointed on the ground in the location of the hearing. It's also an assumption to suggest that travel is necessarily polluting. You could take a Tesla, you could offset your carbon footprint of airplane travel or you could even walk and you may laugh at the latter. But I did walk to a hearing recently. It's also a misnomer to say that you're necessarily eliminating the need for physical infrastructure. As I mentioned, previously, participants still gather physically and ultimately, in terms of the venue, the venue can deploy green practices. It's really a question of what those are in the specific location where you're sitting. For example, a venue in office, if those are chosen, could use a green protocol or green practices such as electronic bundles technology platforms to display evidence and the use of laptops instead of paper pats and no bottles. So it's not necessarily correct to suggest that eliminating the need for a physical office or venue would in itself be green or not green. The next point in terms of environmental impact is the use of electronic bundles. It's often suggested that virtual hearings go hand in hand with electronic bundles. I don't think that's always the case. I've known arbitrators to request hard copies for virtual hearings and equally hard copies are often exchanged leading up to virtual hearings as well. I've also seen in-person hearings use the electronic bundles, in fact, if I think back to the last in-person hearing that I sat in with hard copy bundles it was almost 10 years ago. So technology has really changed in terms of in person hearings as well. In terms of some of the other points not relating to the environmental impact of in-person and virtual hearings I think there's an assumption that these technological advances in terms of virtual hearings are necessarily entirely effective and secure. Whilst there have been improvements, a virtual hearing cannot compete with an in-person hearing in terms of security. Participants still and also just generally, in terms of effectiveness, participants still struggle to navigate breakout rooms and find that pesky mute button and they will never be more secure than sitting together in a single room. On bridging the gap of nonverbal communication, nothing can beat sitting face to face as we found earlier when we were trying to put this podcast together, took us 10 or 15 minutes to start. Finally on time and cost whilst hiring a venue may be more expensive. Again, this is not necessarily given and in any event, it's not generally significant compared to the overall cost that a party might spend on arbitration as a whole. In respect of time, I'd suggest that focusing everyone in one place can be much more efficient than virtual hearings, which often end up being scheduled across weeks or even months. So I think in terms of which is favorable, I think the general practice of in-person hearings is really returned to the scene and that in itself shows that that's the preference of practitioners at this stage. Whilst virtual hearings have their place in terms of, for example, things like CMCs, full blown hearings are still best in person. Vanessa: Thank you, Chris. There were some strong points in there, fun points and real arguments to each side. We still have one last speaker who may actually help to the scale. James Willn. James will rebut Ana's arguments that in-person hearings are worthwhile. James is a partner in our Dubai office and a member of our Energy and Natural Resources Group. He is an arbitration lawyer with more than 14 years experience and his practice centers on complex disputes and international arbitrations largely within the construction, the offshore oil and gas and other energy industries. In addition, James is recognized for his asset tracing and recovery litigation work as well as his work on contentious and non-contentious sanctions issues. So James, what is your answer to Ana? James: Yeah, thanks. Thanks for that, Vanessa. No, that is really useful and um completely valid points and yes, having been through several hearings, uh interlocutory hearings CMCCs hearings during the COVID period. I can definitely say that they work um in that sense, there is some efficiencies there, time costs and savings. But I um I think where I come from is that real efficiency element of, of, of the of the virtual sense of things. So I, I see this quite a lot. Uh typically from barristers, I have to say who say, well, you know, virtual is fine um up to a point. But you know, you can't beat a good in-person, the whole witnesses the see the, the whites of their eyes and all that kind of stuff. And I, and I sometimes think that that's more about the drama than actually the rub of the dispute or, or getting to the actual evidence. Look, I love a good, full blown bluster hearing myself. You know, it's like a like a day trip to the theater, isn't it? The drama, the excitement, the tension, good witnesses, bad witnesses. Um It's, it's all good fun, but whilst we might be enjoying it as the lawyers and I know certainly some of the clients enjoyed it as well. Ultimately, there's a cost there and with these more, bigger uh more global, more, more complicated arbitrations where, you know, the legal team is four or five individuals. Um The witness team could be six or eight, your expert team, two or three. And then even the client side could be three or four individuals um often from, you know, all around the globe. Um It's very rare that in an international arbitration, all parties are, are located in one jurisdiction. Uh notwithstanding that the seat of the arbitration might be somewhere completely different anyway, So in reality, you're talking travel, you're talking hotels, lack of management, time, uh key individuals away from their, from their day jobs. That that's a, that's a huge cost. So for me, COVID taught me and, and I was as surprised as many that the the virtual hearings really do work. I did a huge multiparty, multidisciplinary, multi jurisdiction uh construction arbitration in the middle of, of COVID uh different languages, some Koreans in there, some Libyans, some Arabic speakers with the whole blown technology and it worked. And I think I was as surprised as many. So where I've seen complicated, difficult, complex time consuming arbitrations work in a virtual context, for me, notwithstanding the drama, the theater and the excitement, the reality is they are just as effective as the, as the in-person and obviously cost a whole lot less. Alison: Thank you, James. Look, our time is up for this episode and we would like to warmly thank Ana, Mathilde, Chris and James for participating in this podcast. Stay tuned for episode six where we tackle perhaps the most important part of arbitration, uh besides the hearing, and that is the award. Our debaters will uh go head to head on the topic, Electronic signature and notification of awards: Is green always better? Until then thank you for listening to our Arbitral Insights, Greener Arbitrations podcast series. We hope you enjoyed it. Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration Practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith arbitration pricing calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter. Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. All rights reserved.

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.

In the fifth edition of our regular ISDS podcast series, hosts Suzie Savage and Patrick Beale once again break down the key investment treaty arbitration developments that took place in the latter part of 2023. They discuss the Energy Charter Treaty, award enforcement case updates, the ISDS elements included in the Law Commission's review of the English Arbitration Act 1996,  Indo-Pacific updates (notably the UK signing the CPTPP), s.1782 news, before closing with commentary on UNCITRAL Working Group III's proposed ISDS reforms.

In the second of a miniseries exploring the proposed reforms to the law governing arbitration in England and Wales, the Arbitration Act 1996, Hong Kong-based Matthew Townsend and Jonathan Tsang explore the proposed new default rule that the arbitration agreement is governed by the law of the seat (unless the parties expressly agree otherwise) with Paris-based Mathilde Adant and host Liam Hart.

Executive Director of the New York International Arbitration Center (NYIAC) Rekha Rangachari joins Reed Smith host Gautam Bhattacharyya for this Spotlight on… session. They discuss the path that led Rekha to NYIAC, international arbitration in New York and further afield, the goals and focus of NYIAC, and her views on improving diversity in the law.  

Gautam Bhattacharyya welcomes Dubai-based, New York-qualified attorney, independent arbitrator, and founder of Equanimity Arbitration Sadaff Habib for this instalment of our “Spotlight on…” miniseries. Sadaff shares what drew her to a career in law, the role of mindfulness and cultural empathy in international arbitration, and her views on greater ethnic and gender diversity. 

In the first of a miniseries exploring the proposed reforms to the law governing arbitration in England and Wales, the Arbitration Act 1996, Dubai-based Antonia Birt and London-based Liam Hart explore the proposal to give arbitrators the power to dispose of claims on a summary basis (that is, without waiting for a full trial) with host, Bartek Rutkowski.

Time for another Greener Arbitrations episode. This instalment welcomes Aurélie Lopez, Antoine Smiley, Sujey Herrera, and Peter Rosher for a mock debate on the merits of witness and expert preparation via video-conferencing vs. in-person meetings. Hosts Alison Eslick and Vanessa Thieffry moderate this hard-fought debate. Which side will you vote for?

To celebrate World Maritime Day 2023, international arbitration partners Thor Maalouf, Antonia Panayides, and Nick Austin discuss arbitration in the maritime world. The conversation explores what exactly is meant by “maritime arbitration,” the potential changes triggered by updates to the Arbitration Act 1996, and what further waves of change the shipping industry may see in response to looming environmental regulation.

Gautam Bhattacharyya welcomes Poornima Hatti, co-founder and dispute resolution practice lead at Samvad Partners, to discuss her career as a leading arbitration lawyer in India, the growth of India as an arbitration hub, and the importance of better diversity in arbitration in India.

In this episode in our greener arbitrations miniseries, Vanessa Thieffry and Alison Eslick welcome Paris-based Erwan Robert and Dubai-based Soham Panchamiya for a friendly debate grappling with the query as to whether hard copy submissions are a thing of the past. They discuss cost, efficiency, access to technology, and what works best in hearings.

New York-based independent arbitrator Dana MacGrath FCIArb is our guest for this episode of ‘Spotlight on…' with our host Gautam Bhattacharyya. Dana shares how she found her career in law and international arbitration, the mentors she has learnt from throughout her professional life, the role of women in international arbitration, and what it means to step away from ‘big law'.

Miami-based Gilberto Guerrero-Rocca welcomes guest speaker, attorney, and legal scholar Luis A. Bergolla to explore the changing definitions of “investment” and “dual nationals.” The duo discuss the impacts of, and takeaways from, the recent case of ICSID Gramercy v. Peru. They then cover jurisdictional awards from a recent PCA case, followed by a brief exploration into whether dual nationals satisfy the ratione materiae and ratione personae prongs of the jurisdictional test.

Gautam Bhattacharyya welcomes prominent international arbitrator and Founder of Careers in Arbitration and ARBalance Amanda Lee to discuss Amanda's career story, her mentors, and her views on what the hardest thing is about being an arbitrator. Amanda then shares her views for furthering DEI and belonging in arbitration in a response that Gautam commends as one of the very finest expositions of the importance of all aspects of DEI he has ever heard.

Singapore-based counsel Joyce Fong welcomes Head of International Arbitration for Frasers Law Company (Vietnam) Earl Rivera-Dolera to explore the international arbitration landscape in Vietnam. The duo discuss common jurisdiction and governing law clause choices for contracts involving Vietnam-based projects and the “winning formula” to maximize enforcement opportunities in Vietnam, before reviewing common grounds for challenging the recognition and enforcement of foreign awards in Vietnam and closing with a review of areas of desired reform. 

In the second of our 2023 Greener Arbitrations mock debates, comperes Alison Eslick and Vanessa Thieffry welcome Dubai-based Antonia Birt and Houston-based Daniel Avila as they tussle with whether the Green Model Procedural Order is unavoidable.

We are delighted to share a dedicated “Spotlight on…” podcast episode for South Asian Heritage Month (SAHM) 2023. This year's SAHM theme is “Stories to Tell.” Today, we welcome Kawsar Zaman, elected Alderman of the City of London, barrister at No5 Chambers, and LSE guest teacher, to tell us his. 

Gautam Bhattacharyya welcomes the director of the Center for Transnational Litigation, Arbitration, and Commercial Law at NYU School of Law, and international arbitrator, Franco Ferrari to discuss the path that led him to a career in law and international arbitration. The pair discuss Franco's passion for academia and the freedom it affords, memorable venues for arbitration, and the need to resist “proceduralizing” arbitration. They close with a mention of a certain New York restaurant dish named after Franco and his plans for his upcoming sabbatical. 

Our Greener Arbitrations miniseries is back – and in debate form, no less. In the first of our mock debates examining how to reduce the environmental impact of arbitration, Paris-based Vanessa Thieffry and Dubai-based Alison Eslick welcome international arbitration lawyers Suzie Savage and Matthew Townsend as they argue for arbitration agreements to be amended to include sustainability measures, against opponents Joyce Fong and Patrick Beale.

Arbitrator, counsel, academic, and co-founder of REAL (Racial Equality for Arbitration Lawyers) Dr. Kabir Duggal joins host Gautam Bhattacharyya for this “Spotlight on…” session. The duo discuss how Kabir found the law, who has influenced him the most along his career path, and what makes for a good international arbitration lawyer. They then explore Kabir's first appointment as arbitrator, the early years of investment treaty arbitration, and what more we can all do to embrace DEI in the world of arbitration and beyond.

Monique Sasson joins Gautam Bhattacharyya for this “Spotlight on…” session. Monique, an Italian avvocato and English solicitor advocate, shares what attracted her to the field of law and to arbitration, career mentors she encountered on the road to becoming an arbitrator and key takeaways from acting as an arbitrator in three different jurisdictions. Monique also discusses her academic background, the process involved in authoring academic articles, and potential improvements to streamline the arbitral process. 

London-based international arbitration partners Suzie Savage and Patrick Beale team up for another investment treaty arbitration update. This episode includes commentary on the status of ECT modernization and State withdrawals, a U.S. court's refusal to enforce an ECT award, and Ecuador's signing of a Host State Agreement with the PCA. The duo then go on to discuss the Law Commission's Second Consultation Paper on reform of the Arbitration Act, updates to the African Continental Free Trade Agreement, and UNCITRAL Working Group III's approach to double hatting.