Kluwer Arbitration Blog

I recently co-chaired with Gustav Flecke-Giammarco a Delos roundtable on this topic, at the kind invitation of its President and Co-Founder, Hafez Virjee. The topic links to a broader theme: how to be an international arbitration practitioner and manage some balance while at it? It can be tricky, and I am conscious that especially during the pandemic the opportunities for a human connection and frank discussion are rare.

I therefore wanted to take the opportunity to blog my views in case they help anyone. To understand the challenge, I begin with a quick look at my personal smörgåsbord:

I have had a busy practice for 14 years at leading international arbitration teams at Freshfields, Latham & Watkins and Quinn Emanuel, and have recently launched my own label to act as an international disputes counsel and arbitrator. I have seen a fantastically interesting and busy portfolio of disputes, and have learnt from brilliant colleagues. I love my clients and meeting new people, and therefore seek out opportunities to bring in new cases and run them. Which then adds to my work-load. I sit as arbitrator. I publish. I lecture as external professor. I try to make time to mentor my team, and have recently agreed to mentor law students at the University of Oxford where I hail from. I have two little boys, aged eight and four, and a puppy who is invariably caked in mud from the morning school run and makes a mess everywhere. I sit on the board of my boys’ school because education is key. I try to look after my health, friendships and sleep. My husband is an oculoplastic surgeon with a Harley Street practice. He handled the boys and their schooling during the pandemic. We have no family in London to help. At night I get kicked and punched by a child who is dreaming of dragons. I am breaking a slight sweat even writing this paragraph.

If your set-up is anything like mine, and you are thinking about getting your first appointment as arbitrator, the question arises: With what time? And how to do a good job? Some of my pointers, from a pool of my experience and inevitably some pain:

1. Harness the institutions: Chances are that your first appointment comes from an arbitral institution. Institutions such as the ICC, LCIA and SCC are very focused on achieving a diverse roster of arbitrators. The institutions are also a gold mine of support. Don’t hesitate to draw on it. They will have great practical pointers on how to formulate procedural timetables and orders, and communications to a non-responsive Respondent to ensure that you balance expeditious progress with giving each party an opportunity to be heard. They also have great insights on the contents of awards, down to details such as how to formulate an award of interest.
2. Expect the unexpected: What took me by surprise was that my first cases as arbitrator were very different from the high-value counsel cases I have seen in my practice over the years. Put another way, your past career may not prepare you for the issues that crop up. I had unrepresented Respondents, and no help from sophisticated counsel in the way that Tribunals on high value cases benefit from. I had to go to first principles on the meaning of fairness in ensuing that the legally unsophisticated Respondent (who refused to engage counsel) understood what I was saying, and that I did not veer into acting as advocate for the Respondent and so prejudice the Claimant. On another dispute, a consensus award threw up the possibility of money laundering, which I had to investigate with very little guidance, conscious that serious consequences arise for those who miss attempts to white-wash. These experiences are great for skills, and ensure that you keep developing as a lawyer and practitioner. It can be uncomfortable at times, but I try to get comfortable feeling uncomfortable, because it means that I keep evolving.
3. Choose your team with care: I have found the colleagues in my prior firms key to handling sole arbitrator appointments. You may need the support of senior colleagues to be able to clear conflicts and take the case on. And to bounce ideas off each other in a relaxed and creative way whilst maintaining confidentiality. I cannot emphasize enough how important this support has been to me. You need like-minded colleagues who see that first appointments add to your tool-kit and eventually will lead to chair appointments. Spot those mentors and sponsors quickly, seek them out and cherish them. (And then be that mentor and sponsor to others!)
4. Be creative: The nut of work-life balance is real, and hard to crack. One positive challenge I have found in the pandemic is how to be creative and use the time previously spent travelling and commuting in ways that recharge me and allow me to deliver high quality work product over long days. I have seized on the culled morning commute to do a yoga, weights and ballet/barre classes via zoom. On a separate topic, I have tried to feed vegan foods to my kids to reduce our carbon footprint, but they recently asked in earnest if my minced quorn (a fungal product masquerading as meat) was “dog food”. I therefore started ordering Mindful Chef ready recipes for the evening to add variety and more vegetables to our diet. Some recipes only take 15 minutes to cook, which is how long one can spend wandering out to a sandwich or sushi shop to pick out dinner for a night at the office. We try to make time for dinner, light a few candles and play our boys’ “what animal am I thinking of” guessing game. Being recharged then allows for focused, productive time on counsel and arbitrator work. I am not saying it is easy. Often it is very hard. But approaching it as a creativity problem allows me to view it through a more positive lens.
5. Keep evolving: Some of Winston Churchill’s quotes are out of step with the Zeitgeist. But this one I like: “To improve is to change. To be perfect is to change often”. I try to start the day by asking what I can change and improve, whether it is to pick up the phone to the institution earlier, or to think of a third way solution on how to deliver justice on a dispute. I also put myself out of my comfort zone by going to dance classes where I bumble around hopelessly. If I can get through it with a few new moves under my belt, I can surely master a new sector or a new legal issue. Being willing to be a humbled student every day is key to growth as arbitrator, counsel and I guess in everything.
6. Challenge the premise: It was rightly pointed out to me during the round table that a full plate of life may not be desirable in the first place. Maybe it is not possible to do everything at once, and stay zen. Perhaps one should do it in stages, and say not try to publish with a six-week-old child nursing in one’s lap. This reflection is important, and the exact balance is personal to everyone. I would also challenge the premise of the arbitrations we run. I wholly endorse expeditious arbitrations. Speed is key, and I hear the end-users. However, I also think that a three-month goal for rendering an award from the last submission may sometimes be unrealistic. As diversity is a shared value, and we want arbitrators with diverse characteristics, we may want to build in an extra week here or there to accommodate the fact that lawyers with care responsibilities (for loud toddlers as well as for aging and unwell loved ones) need more than three months to deliver a high-quality award. See my diversity checklist which explores this in detail. On a separate theme of challenging the premise, if most of your arbitral appointments get blocked by conflicts, think about whether there is a better professional stable that results in fewer conflicts. This type of migration was very clear on our roundtable.
7. Embrace solitude: This is an important one. One’s professional existence can feel lonely, drafting an Award solo and operating from home mid-pandemic. I am in charge of huge disputes, the family’s wellbeing, and expected to be a rock who handles everything calmly and smoothly. I witness the attrition of female peers – many seem to have left the profession. The loneliness is particularly real for arbitrator cases where you sit as a sole arbitrator and have no co-arbitrators or Tribunal secretary to brainstorm with. Whilst you can confer with colleagues on an abstract level, the legal analysis turns on detail which you must get right, alone, being very conscious that you have been asked to deliver justice, and that it will have a significant impact on entities and individuals. I have come to see these moments spent in the throes of the evidence and tricky points of law as invaluable: they can lead to great flow and excellent legal thought. I’ve also learnt to see loneliness as solitude – as a positive, creative space, pivoting off Aldous Huxley’s comment “[t]he more powerful and original a mind, the more it will incline towards the religion of solitude”. Once the flow has produced ideas, you can then bounce them off supportive and talented colleagues in your network, against whilst maintaining confidentiality.
8. Work smart: On a related note, excellent lawyering is a creative exercise. Identify your regenerating space that crystallises your best ideas. For some it’s a walk amid greenery, for others a muddy run or cooking. Then come back to your draft with the fresh ideas.
9. Promote your specialism through social media: You can harness social media to communicate your specialism as an arbitrator – institutional rules, sectors, commercial/treaty arbitration – to secure further appointments. I had the pleasure of speaking recently about this very topic at an ICC YAF and Quadrant Chambers event, and many participants expressed anxiety over being present in social media in the “right way”. It’s actually very straight forward, with little magic involved.  One of my top tips is to lead with content rather than with yourself.  What I mean is that it is good to give your reader something of value – inspiration, insights, ideas, legal news etc – rather than just ask the reader to celebrate your personal achievements, worthy though they are.  And I would always keep it relatable and honest, to avoid putting on a gloss that creates unnecessary pressure for others.
10. Find joy: When it all gets intense, I try to look back at my day and ask when I felt joy. At our roundtable, I felt joy at the excellent exchange of honest ideas. I got energy from the follow-on exchanges. And from the uninterrupted hours of drafting which followed and where solid ideas crystallised. I start my days with a run to Taylor Swift and Daft Punk so that I inhabit a confident and clear headspace. At this very moment I am hoping that the day can be wrapped up with President Obama’s chronicle. With that said, he does plough admirably from one intractable problem to the next, which is not exactly the lightest evening reading. I therefore couple it with a giggle with my boys over Julia Donaldson’s Snuggly Snerd and other children’s stories. I then look back at what brought me joy, and try to incorporate more and more of those moments into the days ahead.

In these times of disconnection, I would love to hear your experiences. Please get in touch.

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