Lucy Greenwood, an independent International Arbitrator based in Houston, Texas, provides her insight into the the issues of transparency, data and diversity in the international arbitration field.
What is your current role?
After spending the past 20 years in practice with two major international law firms, I have recently transitioned to become a full time arbitrator.
I joined Linklaters as a trainee in 1996, qualified as a litigator in London in 1998 and rather fell into the practice of international arbitration shortly thereafter. The firm needed an associate to relocate with a partner to the Paris office to establish an international arbitration presence there and asked me to go.
I said yes, checked out a copy of Redfern and Hunter from the library and called my husband to tell him we were moving to Paris. I returned to London after three years focusing on ICC arbitration in Paris and continued to act as counsel in a variety of international commercial arbitration matters before my husband called me to tell me that his company wanted to relocate us to Houston, Texas. As he had followed me to Paris, I was not really able to say no…
I was fortunate to be invited to join the international arbitration team at Norton Rose Fulbright in Houston in 2008. As a result I was able to continue my practice as counsel in international commercial matters and to begin specialising in energy related work. I also represented clients in investment treaty arbitrations and started receiving appointments as an arbitrator.
More recently I found that sitting as an arbitrator was where I wanted to focus my attention. I was having to turn down appointments because of the conflicts of interest generated by being part of a major international law firm, so earlier this year I took the plunge and became a full time arbitrator. It’s early days, but so far I am thoroughly enjoying the challenge.
How is the market addressing parties’ needs?
There has been a fair amount of criticism of the arbitral process in recent years, with some hand-wringing over how long arbitrations are taking and how much they are costing. But lawyers are notorious pessimists and dissatisfaction with elements of the arbitral process is not new.
Back in 1989 Lord Mustill observed that arbitration suffered from an “elephantine laboriousness” and I suspect that we will be grumbling about time and costs in arbitration for many years to come. In my view, arbitral institutions have responded well to the criticism and I have been very impressed with the case managers I have dealt with at the major international institutions and their efforts to keep arbitrations on track and on budget.
Is there a need for more data?
Yes, particularly in relation to the issue we face regarding the lack of diversity on arbitration tribunals. If we are to address this issue, we must increase transparency in international arbitration and improve data collection and publication. In particular, the manner in which arbitrators are appointed is highly opaque.
When I began researching the composition of international arbitration tribunals in 2009 there was little to no collation of data in this area. However, there has been a major change in attitudes to this issue in the last year or so and now institutions routinely collect and publish statistics on the composition of their arbitration tribunals.
Do you think dispute resolution processes are likely to change in the future?
Although this statement may be a turkey voting for Christmas (or Thanksgiving) situation, personally I think more arbitrations could and should settle. Generally, arbitrations do not settle as frequently as court proceedings. Settlement rates for arbitrations are around 50%, whereas it is more usual to see a settlement rate of over 90% in relation to court proceedings.
How much of this disparity is due to the unpredictability of arbitrations (the difficulty of predicting with any certainty how a tribunal comprised of arbitrators with different legal backgrounds will rule on a question of substantive law), and how much is due to tribunals reminding the parties to consider settling the dispute, is impossible to tell.Whilst I do not advocate arbitrators acting as settlement facilitators, I do wonder whether we should do more to help parties explore settlement after arbitration proceedings have been initiated.
One possibility I have previously suggested would be for arbitral institutions to amend their rules to include a short stay of the arbitration, within which the parties could, if they wished, consider whether the dispute was capable of resolution through negotiation.
The main virtue of presenting the parties with an obligatory settlement window incorporated within the arbitration procedure would be the fact that no one would bear the burden of suggesting settlement. There would be no mandated discussion of the settlement window by the tribunal or the parties, it would simply form part of the procedural timetable and parties could use it or ignore it as they wished.
How are diversity issues being addressed in the dispute resolution community?
As a global community, we lag behind the curve in relation to diversity. I was part of the Steering Committee for the Equal Representation in Arbitration Pledge which launched in 2015.
This was the first global initiative to address the significant under-representation of women in international arbitration. Signatories to the Pledge commit to increase, on an equal opportunity basis, the number of women appointed as arbitrators, with a view towards reaching the goal of full parity.
We have been thrilled with the response to the Pledge across the dispute resolution community and currently have over 1650 signatories to the Pledge. Since the publication of my first major paper on this topic in 2010, it is gratifying to see such commitment to redressing the balance on international arbitration tribunals.
Companies are not simply paying lip service to the Pledge but are taking their commitment towards addressing the imbalance on international arbitration tribunals seriously, which is heartening.
Interviewed by Natasha Mellersh.