To mark International Women’s Day on 8 March 2017, Practical Law Arbitration is carrying out a series of interviews with prominent women in arbitration.
In this, the third interview in the series, we interview Adriana San Román, arbitration partner at Wöss & Partners, Mexico City – Washington DC, and member of the International Council for Commercial Arbitration – American Society of International Law (ICCA-ASIL) Task Force on Damages. Adriana started her career in corporate finance before moving to a career in law. She is a leading damages consultant and damages expert in international arbitration and litigation. She has co–authored the book Damages in International Arbitration under Complex Long-term Contracts and several articles on damages in international arbitration.
In Part One, Adriana discussed her leap from finance to law, experience as an arbitral damages expert and her role in the ICCA-ASIL Task Force on Damages. In Part Two, she considers women in arbitration, the future and some career tips.
Women in arbitration
What would you say contributed to your success as a Latin American women in the fields of arbitration, finance, or damages expertise?
As a former corporate banker I understand how businesses work, financially speaking, and, as a former investment banker, I understand how to structure projects by taking into consideration the risks involved, in order to control them. As a financial analyst, I can use different methods of valuation in order to value damages. As a lawyer, I understand the fundamentals that rule different transactions according to their legal and financial nature. All these skills together help me understand how to frame a damages claim efficiently as a lawyer, and as a damages expert I understand what is needed to prove and quantify the damages claim.
What changes, if any, have you witnessed in attitudes towards women in arbitration during your career?
I have not witnessed any changes in attitudes towards women in arbitration. What I have witnessed is a good reaction towards ethics and professionalism. I have always worked in teams made up mostly of men, but I never had the impression that I was not acknowledged.
There seem to be very few female damages experts in arbitration. What do you think can be done to redress the balance?
I think it is a matter of vocation more than a matter of gender. People who wish to work as damages experts should understand the financial as well as the legal implications of using one method or the other.
What do you see as the key areas of change or development in arbitration?
The key areas that I see, as a result of my experience as practitioner and expert, are to come to a consensus about the legal principles and the best practices in international arbitration, which are those that avoid over and under compensation.
Do you consider investment treaty arbitration as we know it is under threat?
I do not consider that it is under threat, but there is a challenge to determine if it is fair to apply the measure of damages of investment arbitration in the case of a breach of contract protected under a bilateral investment treaty (BIT), even without tort, in the case of umbrella clauses. As we have seen in the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and other new generation trade and economic agreements, the tendency is towards codification of international tort law standards, which is necessary for legal certainty and creates legitimacy. This has to go hand in hand with a considerable development regarding the achievement of previsibility in damages, whereby what should be achieved is a reasonable bandwidth where the damages are considered fair (which is another aspect of legitimacy). The system is under threat if it does not achieve those two aims: definition of standards and a clear methodology to determine damages.
Do you have any thoughts on the future of the North American Free Trade Agreement (NAFTA) in the Trump world?
It will be difficult to eliminate NAFTA as it would leave US oil and gas companies without arbitration and investment protection, and perhaps without access to the Mexican energy market. Mexico should become more competitive and intensify its commercial relations with other countries, such as in the European Union and Asia. Personally, I believe in alliances. An example of that is that my partner and I founded Wöss & Partners 15 year ago, and we have been married for the last 25 years. The Austrians made an empire on the basis of that principle (“Tu felix Austria nube.”).
What do you perceive are the benefits of moving firm as opposed to remaining at the firm where you train?
I think moving firm should imply more responsibility, challenge and, preferably, economic growth. I also think that before moving firm, one must have learnt as much as possible and leave an excellent professional record.
What three practical tips would you give to a junior female arbitration practitioner today?
Objectivity, as counsel or damages experts always look for the truth, because, in that way, when you are going to defend a legitimate case, the case will be stronger and you can defend it much better.
Look into details without losing sight of the whole picture.
Think of yourself as another peer in the team, who is going to provide useful analysis. Do not think in terms of gender.