To mark International Women’s Day on 8 March 2017, Practical Law Arbitration is carrying out a series of interviews with women in arbitration. To kick-start this series, Practical Law Arbitration senior editor, Claire Lipman, speaks with Dr Jacomijn van Haersolte-van Hof, Director General of the London Court of International Arbitration (LCIA). They discuss diversity in arbitration, LCIA procedure, costs, third party funding and what the future holds in store.
What made you want to be a lawyer?
The decision to do law was not a very profound choice, it was a fairly general study and I could have ended up studying history of art just as easily.
My first practical experience of arbitration, or rather litigation generally, was in the US. There I was introduced to a full-blown discovery and deposition practice. This was a far cry from the civil law system experience in the Netherlands, where I was first admitted to the Bar. Increasingly, in arbitration, I have seen the two systems merge, or at least blend to a system with aspects of both but none of the excesses.
What is a typical day for you?
I have two kinds of days: days on the road and days in London – on average a 50/50 division. When I am travelling, the daily schedule is dictated by speaking commitments and meetings. On London days, I get up early, do initial emails and read the Financial Times. Then I cycle to the office on a Boris bike. I like to get in early around 8:30 am, before the office opens at 9:30 am. That allows me to do some reading and preparation for meetings later in this day. The rest of the day is filled with internal and external meetings, usually with each of the departments, and seeing visitors (such as arbitrators). In the evening I typically attend external meetings or law firm presentations.
You have achieved a high profile position in the world of arbitration, but to what extent do you think that there is still a “glass ceiling” for women in the profession today? How can a centre such as the LCIA increase diversity amongst arbitrators and ensure that the pool of LCIA arbitrators is widened? What effect, if any, has signing the Equal Representation Pledge had on LCIA arbitrator appointments?
Institutions such as the LCIA have an important role to play in relation to diversity. We are very conscious of this role; for instance, we aim to have equal representation on conference panels and the like. Whenever lists of potential candidates are prepared, we ensure that there are female candidates unless there are objective reasons why this is not possible. The burden of proof, if you will, is on us to show if it was not possible to include female candidates.
The Pledge has helped and increased awareness. At the same time, and sadly, we have not (yet) seen an increase in the number of female arbitrators nominated by parties. The bulk of female appointments, currently some 20%, comes from direct LCIA appointments.
Anyone who wants to promote themselves as arbitrator, male or female, should know their stuff. Being knowledgeable and prepared is key. It is also important to go out and be seen.
What were the most effective and least effective changes brought about by the 2014 Rules?
The effect of the revision of the LCIA Rules has been considerable and cannot be simply allocated to individual provisions. Importantly, it has led to a complete overhaul of all internal procedures and templates.
The procedure is increasingly structured and electronically monitored. The option to file electronically has been embraced by users, including the requirement to pay registration fees by credit card. Another interesting development is the increasing transparency of the constitution of the legal team. There has been an increased uptake of the requirement to notify the tribunal of new members of the legal team, pursuant to Article 18 of the LCIA Rules, and to seek their permission for adding new representatives.
Although the restrictions, rightly imposed by party autonomy, have precluded far-reaching development in relation to joinder and consolidation, this might be an area for further expansion in the future.
Are there further improvements you think could be made to the LCIA arbitration process? For example, there are no time restrictions on the production of an LCIA award, other than “as soon as reasonably possible”, whereas many other institutions impose a six or nine month time limit. In light of initiatives to improve time and costs in arbitration, do you think this rule should be changed?
The LCIA has initiated its cost and duration analysis, which will be updated this year. The self-policing mechanism of the LCIA Rules, which requires tribunals to be transparent about the timing of award and deliberation, is something of which we are proud. It is not likely to be replaced by a standard time limit for production of the award. The unattractiveness of a six or nine month time limit is illustrated by the average duration of an LCIA case of 16 months from the date of filing up to the award.
What we are currently working on is not so much changes to the Rules, but possibly further guidance (for example on the use of the tribunal secretaries, through notes or other tools).
The LCIA is one of the few institutions to still calculate the administration fee on a time basis rather than ad valorem. Can you explain the rationale for this?
The rationale for charging on an hourly basis is clearly demonstrated by the numbers: an hourly fee system is more cost-effective. This is most obvious when comparing the LCIA costs to the International Chamber of Commerce’s (ICC’s) cost system; the turning point, where the hourly rate system becomes more cost-effective, stands at a remarkable US $1 million.
Third party funding
Given recent cases and discussion on disclosure of third party funding agreements and security for costs, do you think written guidelines are needed?
Third party funding is topical. The current International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration suggest that there is increasing awareness of the role of third-party funders and the possible need to regulate. Arbitral institutions may be best placed to implement certain rules. Notably, in order for an arbitrator to be able to disclose relations with a third party funder, the fact that there is funding and potentially the modalities thereof need to be made known to that arbitrator. Conceivably, the request for arbitration is the time and place to provide such information. However, before institutions or others start to provide further guidelines in this respect, it is important to further gauge users’ (legitimate) needs and wishes.
Are there any plans to open more LCIA centres abroad? If so, where?
Opening more LCIA centres abroad is not something currently contemplated. The LCIA’s success in regions such as Russia and the US demonstrates that a physical centre is not a prerequisite for success.
What effect, if any, do you think Brexit will have on arbitration in London? Is there anything the LCIA could / should be doing?
The LCIA is obviously monitoring what will happen as a result of Brexit. For now, there are more questions than answers. Nevertheless, it could well be that the consequences (if any) for arbitration will be positive. Recognition and enforcement of arbitral agreements and awards is solidly codified in the New York Convention, and not dependent on European regulations. London was a centre of commerce and arbitration long before the EU. In comparison with court litigation, which is much more dependent on European structures, the attractiveness of arbitration may actually increase.
What do you see as the key areas of change or development in arbitration?
In future, I see more room and need for transparency. I do not necessarily mean transparency of individual procedures, certainly not in commercial arbitration, but rather the need for institutions to provide users with data. Statistics on arbitrator gender is a good example. Cost and duration data is another. While I applaud general initiatives, for instance in relation to the arbitrator selection process, I am of the view that institutions will retain a significant role in this respect. Arbitrator know-how is delicate. It requires careful analysis of all the circumstances of the case, which in confidential proceedings is virtually impossible to achieve. While the right to nominate an arbitrator remains important for many users, users equally and increasingly see the benefits of delegating this task to the professionals, that is, the institutions. In practice, institutions are often best equipped to mix and match the arbitrators for the case at hand.
What three practical tips would you give to a junior female arbitration practitioner today?
Three practical tips I would give a junior, female arbitration practitioner today:
- Try to ensure that you have some unique feature. That can be knowledge of a particular language, sector or legal expertise, or demonstrable other skills.
- While it is important to find a mentor or role model, I tend to think it is at least as important to connect with one’s peers. One day these will be the people making appointments; in the meantime, comparing notes and experiences helps you to grow.
- Women should take the responsibility that they can handle. Although there are obviously, and luckily, exceptions, too many women undersell themselves where men might have a tendency to do the opposite.