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 discussed 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.
ICCA Sydney 2018 and the future
The theme of ICCA Sydney 2018 is Evolution and Adaptation: The Future of International Arbitration. What do you see as the key areas of change or development in international commercial arbitration or investment treaty arbitration?
I wish I had a crystal ball! But arbitration has never been a static field. What we recognise today as the leading structures, norms, practices and expectations of the field are not what a user of dispute resolution services 30 years ago would have recognised. As the needs and concerns of users have changed, the field has adapted, although not always as quickly or as fundamentally as some might wish.
Today, the field faces a variety of criticisms about the legitimacy of investment arbitration, but also concerns about the reach of commercial arbitration (for example into consumer relationships) – and for both types of disputes, concerns about the implications of time and cost, including equality of arms in cases involving significant resource imbalances. It’s for that reason that the Programme Committee chose the “Evolution and Adaptation” theme for the next ICCA Congress; we felt it was important to take a step back and think more comprehensively about adaptability. Are there new reforms or initiatives that should be considered, to address the evolving needs of users and the main areas of public criticism? What are the drivers for change, what are the obstacles, and what are the risks? The goal was to encourage a constructive debate about the future of the field, not to engage in hand-wringing or over-defensiveness about the past or present. We also wanted to address head-on the challenges and opportunities posed by technology, the importance of new voices, and the possibility of extending arbitration frameworks to new frontiers.
I’m not opposed at the level of principle, but the devil is always in the details, and I have yet to see a proposed model for an investment court that would solve the core issues of legitimacy of the current system without creating equally significant concerns of its own. Among other things, the notion of a relatively small permanent court runs precisely counter to the criticism that decisions today are being rendered by a relatively small and insular pool of people, with similar backgrounds and perspectives, who all know each other and do not necessarily reflect the diversity of the user community. Almost by definition, appointments by states to an investment court will reflect an even smaller pool of candidates, probably with less diverse backgrounds and viewpoints. So the drive for centralisation runs counter to the diversity imperative, as well as the increasing demand for fresh faces and generational expansion.
If the real momentum for a permanent court is a desire for increased predictability and consistency, arguably the better way to achieve that is through standardising norms in the governing instruments, rather than further concentrating the pool of decision-makers. As long as we have thousands of separate treaties with different standards, even a small pool of decision-makers will continue to render divergent opinions. By contrast, moving towards multilateral instruments (such as the proposed Trans Pacific Partnership (TPP), which would have brought some 40% of world GDP under a single, common set of standards), or at least supporting the use of more “model” bilateral treaties, would go a long way towards increasing consistency and predictability. Of course, it’s not sufficient just to adopt new treaty language; states need to do something about the older model treaties that exist side-by-side. Dramatically reducing the pool of decision-makers will not address the lack of harmonisation in treaty standards.
My main concern is with those who seek reflexively to reject ISDS simply because there are things that need fixing. The ISDS system was introduced because of the limits of national courts and diplomatic protection, and those limits have not gone away. Meanwhile, all of the criticisms we’ve seen – concern about interpretation of standards, arbitrator discretion, consistency, predictability and transparency — are solvable by states, who designed the current system and can change it. They are not intractable problems, and they need not force us into opposing corners defined as “scrap the system entirely” or “defend the castle.” As the ICCA Congress should highlight – and as I addressed in a book I co-edited in 2015 – arbitration is a living organism. If we can find the right balance of adaptation and continuity, there’s no reason that ISDS can’t emerge from the current uncertainty into a new stage of maturity and promise.
What advice would you give to someone who wants to promote themselves as an arbitrator?
First, to be successful you need to have some base of prior experience. I’m always bemused to meet people who have never worked in the field but view it as a viable retirement strategy. It’s too profound a responsibility to be just someone’s new retirement plan. That said, if you’ve worked regularly in the field in another capacity, or if you’ve had similar responsibilities (for example as a former judge), there are ways of making the transition to arbitrator.
I suggest getting to know the secretariats at the major institutions. Institutions generally are more willing than outside counsel to take chances on a first-time arbitrator, particularly if the candidate is willing to start with smaller cases to build practical case management skills, and if the candidate might help with broader efforts diversify arbitrator pools. But in reaching out to institutions, remember to make the case that you can help them, and are not just looking to see how they can help you.
It’s also important to get the word out to your own network of contacts, who might consider you for party-appointed nominations – and to try to expand your network by attending conferences, joining organisational committees, and writing and speak actively in the field. Counsel are unlikely to appoint someone who is not known to them already in some way, either by reputation or by a trusted reference.
Women in arbitration
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?
I’m tremendously heartened when I look at the generation behind me; there are so many talented younger women in this field. That cannot help but result in positive change, as the older generation begins to step aside and make room for fresher faces. That said, patience always will be required, particularly for arbitrator appointments where parties draw comfort from a certain level of “gravitas” and experience. The pool of experienced women a generation ahead of mine was much more limited, but my generation has now matured into prominent roles that previously were held mostly by men. The same will be true, in an accelerating way, for the much more gender-balanced generations of lawyers behind mine.
While progress will be made incrementally just by the ageing of the attorney population, the pace nonetheless has been slower than it should be. A lot of the responsibility for that rests with outside counsel, for whom it is always perceived to be safer to recommend “known” candidates to clients. Arbitral institutions have led the way in giving more opportunities to women, and therefore helping those “newcomers” in turn become known candidates. The “Pledge” is a wonderful initiative that is starting to help, as have various efforts to increase the information pool about qualified candidates beyond the names that traditionally jump to mind.
What three practical tips would you give to a junior female arbitration practitioner today?
First, don’t neglect building a network of your peers, while seeking to impress supervisors and others a generation ahead of you. Over time I’ve found that the majority of my referrals and appointments came from my own generation. There are more avenues than ever to network within generations, including through “young” arbitrator organisations and events. The important thing is not to assume that your main support will come vertically; build up your ties horizontally as well.
Second, recognise that professional success may require some creativity in designing a personal support network, particularly for those with children. I’m acutely aware that not all women have the blessings of a supportive spouse or partner or the income to support reliable childcare, but support can come in a variety of ways. One of my former partners used to bring both her daughter and her parents along on extended business trips.
Finally, women in this field need gumption, initiative and perseverance. This is not a career that will be handed to you by anyone. That means we each need to be our own best advocate, not to rely on others to identify opportunities and promote our visibility. No matter how talented you are, if you’re not known outside your small circle, you simply can’t advance. Women as a group tend to be more reluctant than men to put ourselves forward, simply trusting instead that if we do good work, good things will come to us in time. In this field as in many others, we need to make our own opportunities happen.