To mark International Women’s Day on 8th March 2017, Practical Law Arbitration is carrying out a series of interviews with prominent women in arbitration.
In this blog post, we continue our interview with Wendy Miles QC, a partner in Debevoise and Plimpton’s London office. Wendy is a Vice President of the International Chamber of Commerce (ICC) Court of Arbitration, and is a representative on various professional bodies, including the ICC Commission on Arbitration and ADR, where she co-chaired the Task Force on Costs Allocation in Arbitration. She is also Vice Chair of the IBA Arbitration Committee and co-chair of the gender diversity initiative Equal Representation in Arbitration Pledge.
In Part One, Wendy talked to us about her background, how she manages her time, and aspects of arbitration practice and procedure. In Part Two, Wendy discusses the changing landscape for women in arbitration, what the future holds in the world of arbitration, and gives her career tips for junior lawyers starting out.
Women in arbitration
What changes, if any, have you witnessed in attitudes towards women in arbitration during your career?
Diversity at the senior levels of the profession is certainly improving. Nevertheless, I found myself at an arbitration dinner recently with a prestigious crowd of senior arbitrators including more than 30 men and three women. The 10% ratio reflects the appointment of women to arbitral tribunals and remains unreasonably low.
I have not had particularly negative experiences in terms of attitudes towards women ever in my career, and that remains unchanged. Law firms tend to be a lot smarter about dealing with maternity leave and flexible hours for parenting, both of which are encouraging institutional changes.
Can you tell us about your role as co-chair of the gender diversity initiative? Have you noticed any changes as a result of users implementing the Pledge?
Sylvia Noury of Freshfields and her partners conceived of the Equal Representation in Arbitration (ERA) Pledge, in order to promote fair representation of women on arbitral tribunals. Sylvia and her partners launched this as a community initiative and built up a broad consultation process with impressive global penetration. The short and simple pledge statement is a result of that consultative and collaborative exercise involving law firms, corporate counsel, government representatives and institutions from the UK, US, Germany, Netherlands, Spain, Japan, Hong Kong, France, Latin America and many other places, with stakeholders in more countries signing up all the time.
The role of the steering committee (and its two co-chairs) is to promote the pledge and its objectives.
The pledge will celebrate its one year anniversary in May 2017. To date, we have anecdotally witnessed a definite increase in the inclusion of women in lists provided to clients or co-arbitrators by law firms. We hope to have some encouraging statistics in time for the anniversary event. There remains a need to expand the pool of suitably qualified women at the senior level, but there is also a need to make known the rich bank of already qualified but lesser known women already there.
What effect, if any, do you think Brexit will have on arbitration in London?
Insofar as trade and commerce in London is negatively impacted by Brexit, there may be some knock on effect simply arising out of less business resulting in fewer contracts.
As to the direct effect of Brexit on London as a choice of arbitral seat, the most likely effect is to enhance London. As a result of Brexit, the English Arbitration Act 1996 (AA 1996), the New York Convention 1958 and International Centre for Settlement of Investment Disputes (ICSID) Convention will continue to govern enforcement of arbitral agreements and awards, less encumbered by European Parliament politics. This will potentially insulate London from further process or policy decisions that risk undermining international arbitration in the EU, including in relation to rules regarding counsel, the arbitration exception to enforcement of judgments under the recast Brussels Regulation, resistance to investor-state dispute settlement (ISDS) and the insistence on an investment court, and decisions concerning intra-EU bilateral investment treaties (BITs).
Despite how I might feel about the Brexit decision in general, I do think that, for arbitration seated in London, it will only improve its attractiveness, including to European parties. In terms of all the other qualities of a seat, London has a sound arbitration statute, strong institutional support in the form of the London Court of International Arbitration (LCIA), extremely pro-arbitration courts, and a very strong legal system and system of commercial and contractual law. It has a rich community of international arbitration specialists and support services (experts, document management, translators, stenographers) and facilities. It is convenient to most parts of the world and satisfyingly neutral. None of this is affected by Brexit.
What do you see as the key areas of change or development in arbitration?
Climate change is something that worries me deeply and I genuinely believe that the mechanism of international arbitration is uniquely suited to deal with the myriad of climate change-related disputes that lie ahead. Already, many commercial disputes arising out of transitional projects and incentives for renewals are making their way to arbitration, and several treaty claims have arisen in investment in photovoltaic panels throughout Europe. These types of disputes will only increase. Meanwhile, the really difficult disputes arising out of increased pressure on demand for water and food security, diminishing natural resources, and population displacement caused by climate change are currently without a satisfactory forum of dispute resolution. It is hoped that arbitration will be able to fill that lacuna.
Do you consider investment treaty arbitration as we know it is under threat?
The number of investment treaty cases continues to rise annually. States continue to enter into new BITs and free trade agreements (FTAs) with ISDS provisions. There are exceptions, including the EU-Canada Comprehensive Economic Trade Agreement (CETA) and Transatlantic Trade and Investment Partnership (TTIP), but these remain relatively Euro-centric. Elsewhere in the world (even, now, in Australia), ISDS is largely accepted, as seen with the Trans-Pacific Partnership (TPP).
Aspects of the system need to improve in order to retain its legitimacy. Steps have already been taken to improve transparency and accountability. Amici briefs are used to address third party submissions, if not third party claims. There will need to be further adjustment but, broadly speaking, the system seems to be working and here to stay.
What do you perceive are the benefits of moving firm as opposed to remaining at the firm where you train?
The key to moving up within a large law firm structure (or even a smaller firm structure) is to find a mentor or “sponsor” within the firm. Those relationships are established early in your career and build gently over time. International arbitration involves so much international travel, and intense filing deadlines and hearings, that it is easier than in some other areas of practice to build strong ties and deep trust. If for whatever reason you have not been able to establish those ties (with the right people) in time, then it might be better to start elsewhere.
People move for other reasons too. Sometimes an opportunity presents itself somewhere else that is just more attractive and enables you better to achieve your own goals. It is a dynamic industry and movement is far more common now than previously.
What three practical tips would you give to a junior female arbitration practitioner today?
- During the early years in international arbitration, it is important for women and men to identify strong mentors, and, if possible, sponsors within the workplace or otherwise externally.
- Seek out early opportunities to develop an arbitration profile. This involves becoming involved in young arbitration groups, publishing, speaking and joining tasks forces or industry initiatives. It is extra work but our community is served by its members and our participation in preserving and promoting our broader system of arbitration.
- Make sure you have in place, especially from fifth year on, the scaffolding support necessary to stay in the profession long-term. This might be in the form of the mentor/sponsor, membership of ArbitralWomen, use of a career coach, or simply strong friendships within the community at all levels – ideally all of the above. With the right support, you will appreciate that there is no one right way to take this career and life journey; you design what suits you. If you have kids, be kind to yourself: they are exhausting and it takes time and space to get back up and running again. If you don’t have kids, still be kind to yourself: there is more to life than work (and there also is more to life than kids).
What advice would you give to someone who wants to promote themselves as an arbitrator?
It is important that the people who are choosing arbitrators know about you. Meet in person with the institutional case administration teams who make recommendations. Meet with your ICC national committee and understand how its selection process works. Make sure that the institutions have an up-to-date version of your CV. Upload your CV on ArbitralWomen. And use your network – your community – which you have built up over your career. If you need to build experience, offer to act as arbitral secretary for an experienced arbitrator; it will give you much more confidence for your first appointment. And good luck!