To mark International Women’s Day which took place in March 2017, Practical Law Arbitration has been carrying out a series of interviews with women in arbitration.
In this, the fifth in the series, we interview Jean Kalicki, an independent arbitrator in New York and Washington DC, specialising in investor-state, international and complex commercial disputes. She was previously a partner and counsel in Arnold & Porter LLP for 17 years. Among her many professional activities, she is a Vice-President of the London Court of International Arbitration (LCIA) Court, a member of the International Council for Commercial Arbitration (ICCA) Governing Board, a member of the International Chamber of Commerce (ICC) Commission on Arbitration and the Board of Directors of SICANA, Inc. (ICC North America), and a former member of the American Arbitration Association (AAA) Board of Directors.
In part 1 of the interview, Jean discusses how she came to specialise in arbitration and her journey from private practice to life as an independent arbitrator, and comments on arbitration practice and procedure and her role on the ICCA Governing Board. In part 2, she talks about ICCA Sydney 2018 and the future, and gives some tips for women in arbitration and would-be arbitrators.
Can you tell us a bit about yourself? What made you want to be a lawyer?
I was raised in New York City by parents who taught me to value curiosity, engagement and debate, as well as education, the spoken and written word, and the fundamental value of integrity. Originally, I had no interest in becoming a lawyer; my interest was foreign policy, with a passion for seeing the world, and my studies were focused on international relations and comparative government. I debated pursuing a foreign service career, but ultimately felt that law would allow more flexibility and control over my personal life and career, while still hopefully opening doors to international work of some kind. During law school, I naturally gravitated to public international law, and to dispute resolution rather than transactional work.
What drew you to specialise in arbitration?
In the late 1980s when I graduated from law school, there were few paths to work in public international law, except at the US State Department where I spent a rewarding summer. But a few firms seemed to offer opportunities for international dispute resolution. I started out as a general litigator at Cleary, Gottlieb, Steen & Hamilton, determined to pick up as much of international work as I could, and gradually I built up a specialty in international commercial arbitration. But I never lost my interest in public international law, and with my move to Arnold & Porter in 1999 — which coincided fortuitously with the general expansion of investor-state arbitration — I was able to get in on the ground floor of an emerging new field that combined public international law principles with the advocacy techniques I had honed in my prior work. By the time I left A&P in 2016, I had been lead or co-lead counsel in almost 20 treaty disputes, but in the meantime had also developed a parallel career as an arbitrator in commercial cases.
What prompted your move from private practice to be an independent arbitrator?
So long as my arbitrator appointments were in commercial cases, I could balance them reasonably well with counsel work in treaty disputes. But once I was offered appointments in treaty disputes – where similar legal issues tend to crop up again and again – I quickly realised that serving as advocate while also deciding cases could have consequences, not just for my own reputation for independence and impartiality, but also for the firm’s duties to its clients. I was concerned that the decisions I might render, and my ongoing work with other arbitrators, might constrain the choices my colleagues would have about arguments to run or arbitrators to appoint in the best interests of their clients. I realised the time had come to leave my advocacy chapter behind and focus exclusively on being an arbitrator. I launched my solo practice in April 2016.
Is there anything you wish you had done differently? If so, what?
I wish I had spent more effort on foreign languages in my younger years, when the brain adapts more easily. I also wish I had managed to live abroad. I’ve travelled to more than 50 countries and had a lot of adventures along the way, but I never had the chance to really experience another culture from within, as a resident. That expands the horizons and perspectives in a way that frequent tourism or business travel can never do.
Arbitration practice and procedure
Is there any particular case you worked on (as counsel or arbitrator) that stands out?
I prefer not to speak publicly about specific cases as arbitrator, so will simply say that I never stop learning. Each case presents a new challenge: a different country, industry, body of law, legal issue, evidentiary basis, and tribunal dynamic. It is fascinating and humbling at the same time.
As counsel, I’ve also had the great fortune to work on a wide variety of matters, on behalf of both sovereign states and private companies, in both treaty and commercial disputes. Perhaps for this question I’ll stick to my final case as an advocate. Between 2012 and 2016, I was lead to South Korea in its first ever investment treaty case, in which it faced claims of some US$4.4 billion from the Lone Star Funds in a dispute about alleged regulatory delays by banking authorities and allegedly wrongful treatment by tax authorities. The case is still pending but I stepped down as counsel after leaving A&P; it was the biggest case of my career, and I had the good fortune to work with terrific colleagues, against worthy opposing counsel, and before some of the world’s most accomplished arbitrators. The final oral argument of my counsel career was presenting closing arguments at the Peace Palace in the Hague. As an advocate, it doesn’t get more exciting than that.
There is often a perception that, by agreeing to arbitrate in a US seat, parties will be subject to US-style litigation practices (with wide-ranging discovery, depositions, and the like). As someone with vast experience of arbitration in the US, do you think that perception is justified?
I do not. The real predictor of procedure is not the seat but the background of the arbitrators, and “internationalist” arbitrators born or educated in the US are no more likely to adopt tools of domestic US litigation than their internationalist counterparts, born or educated elsewhere, are likely to import the tools of their own domestic legal systems. The challenge is where the parties appoint arbitrators who have spent their careers working almost entirely in their own legal system. If you appoint arbitrators with little exposure to international procedure, there’s obviously a risk they will fall back on their traditional comfort zone. There’s equally a risk they will find themselves ungrounded by reference points when submerged into an entirely new kind of procedure. For that latter reason, I’ve found certain civil law-trained arbitrators to be more willing to entertain broad document requests in international cases than common-law arbitrators might be, because their own domestic background (which generally does not involve such processes) leaves them without useful guideposts for delineating between broad and narrow requests. By contrast, arbitrators who regularly have seen attempted abuses of a “discovery” system may be more attuned to ensuring proper limits on requests presented in an international case.
Tell us about your role on the ICCA Governing Board. What does it involve?
The ICCA is a worldwide non-governmental organisation (NGO) devoted to promoting the use and improving the process of arbitration, and its activities include convening congresses and conferences, sponsoring publications, and promoting the harmonisation of rules, laws, procedures and standards. It has a 40-person Governing Board organised into a variety of committees. I am co-Chair of the Programme Committee for the next Congress, which will be in Sydney in April 2018. We’ve designed 16 panels over three days, organised around a central theme: Evolution and Adaptation: The Future of International Arbitration.