The CPR European Advisory Board (EAB) continues it series “Meet CPR’s Distinguished Neutrals in Europe” and today it presents its next Q&A with Jennifer Kirby.
Jennifer is the founder of Kirby in Paris, France. She acts as counsel, party-appointed, sole arbitrator and chairman in arbitration proceedings under a variety of arbitration rules. Her experience spans a wide variety of industry sectors. In addition to CPR’s Panel of Neutrals, Jennifer is listed on the panels of many other international arbitration institutions around the world. Prior to creating her own boutique arbitration firm, Jennifer was a partner at a large law firm (2008-2010), the ICC Deputy Secretary General (2005-2007), ICC Counsel (2002-2004) and an associate with large U.S. law firms.
Jennifer kindly agreed to grant us an interview. Here are her insights:
1. How did you get your start as a neutral?
When I went to law school at the University of Virginia, there were no classes in international arbitration. And if there had been, I probably would not have taken them. I never took any international law classes or even had any interest in anything with the word “international” in it. A more provincial American law student would have been hard to find.
On my first day as an associate at Simpson Thacher, the assigning partner told me he was putting me on an international arbitration with Jack Kerr. I said, “What’s an international arbitration?” He said, “You’ll figure it out.”
As I began working on my first arbitration, it was not too different from working on my domestic litigation cases. As an associate, I was doing pretty much the same work – e.g., drafting briefs (but they were called submissions), preparing affidavits (but they were called witness statements), reviewing documents as part of discovery (but it was called disclosure). There was, however, one thing I could do in arbitration that I could not do in domestic litigation: live in Paris.
It was this realization that prompted me to seek out as much international arbitration work at the firm as I could. After about three years, I spoke with Rob Smit and told him that (1) I wanted to work exclusively in international arbitration and (2) I wanted to live in Paris – neither of which were possible at Simpson at that time. I asked Rob if he could help me find a job. He said, “Maybe you could get a job at the ICC.” I said, “What’s the ICC?” He said, “You’ll figure it out.”
All told, I spent six years at the ICC – first as Counsel and then as Deputy Secretary General. It was at the ICC that I really learned the ins and outs of international arbitration. The ICC is to arbitration what SEAL training is to combat. The learning curve is steep, and the work is demanding. But by the time you leave the institution, you know how to handle pretty much any situation an arbitration can throw up.
I received an appointment as co-arbitrator from the LCIA not long after leaving the ICC to rejoin private practice. At that point, I had already been working exclusively in international arbitration for about ten years and was a known quantity to people at all the major arbitral institutions. While some institutions require you to have had a case before they will give you one, others are open to giving new arbitrators their first opportunity. Thankfully, the LCIA was willing to take a chance on me.
2. Who is your dispute resolution hero/heroine?
Robert Briner. Dr. Briner was the chairman to ICC Court during most of the years I worked there. I had the pleasure of seeing him regularly and working with him quite closely for about five years. That he was a giant in the field cannot be gainsaid, but saying this understates his significance to me, which is more personal. He combined integrity, intelligence, practicality and diplomacy in a way that made him not just an inspiration, but a kind of guiding light. To this day, when faced with a particularly tricky situation, I ask myself, “What would Dr. Briner do?”
3. What is the one advice you want to give to the younger generation looking for a first appointment as neutral?
Once you have some meaningful experience as counsel under your belt, meet with arbitral institutions and let them know that you want to start sitting as arbitrator. CPR, as well as the ICC and the LCIA take a keen interest in raising the next generation of international arbitrators and giving new people a shot. As more senior people become increasingly oversubscribed, this is essential.
4. Were you ever the first in doing something?
Given that I am young (by arbitration standards), I doubt that I am the first to do anything. Everyone in my generation necessarily stands on the shoulders of those who came before us. Having said this, I believe that when I started my own boutique arbitration practice in 2010, I was among the first people to do so.
At that time, clients were especially cost-conscious in the aftermath of the 2008 financial crisis. How to Reduce Time and Cost became the prevailing theme at arbitration conferences around the world. I started my boutique to offer top-flight arbitration expertise for smaller disputes where it would not be cost effective to engage a large firm.
What surprised me, though, was how many arbitral appointments came in. At that time, I was focused on acting as counsel and it had not occurred to me that this would happen. But I’m glad it did. For me, sitting as arbitrator is an honor, a privilege and a passion.
5. What makes your conflict resolution style unique?
I make a point of knowing the file well from the beginning of the case through the award. This allows me to manage the case proactively and efficiently and to take correct decisions quickly from beginning to end. This may not be unique – indeed, I hope it is not – but (sadly) many lawyers have told me that it is rare.
6. What was the most difficult challenge you faced as a neutral?
I am often appointed in cases that promise challenges even many experienced arbitrators would have trouble managing. So much so that, at this point, it is probably fair to say that I specialize in difficult cases. The challenges I have faced are so numerous and varied that I cannot say which has been the most difficult. Nor would I want to try, as describing the situations would necessarily entail disclosing circumstances that would be identifiable at least to the people involved and perhaps others. Instead, I will simply make an observation.
In 2009, Global Arbitration Review held a roundtable discussion in Paris on The Dynamic of Time and Cost. At that event, Emmanuel Gaillard said that two attributes arbitrators should have are the “ability to anticipate” and “courage”. As an arbitrator, it is not enough to keep up with a case. You need to be thinking several steps ahead – anticipating the parties’ likely next moves and what will be coming down the pike. And when the moment arrives for you to take a decision, you have to have the guts to take the correct one – come Hell or high water. Unfortunately, too many arbitrators lack the courage to do so.
7. What is the most important mistake you see counsel make?
Counsel in my cases are generally superb. One of the great pleasures of sitting as an international arbitrator is seeing excellent advocacy. In my experience, mistakes are rare – and important mistakes are even rarer.
Having said this, I have occasionally had counsel who try to capitalize on the due process paranoia that at times seems more rampant than the coronavirus. I am, however, immune to that particular disease.
8. If you could change one thing about commercial arbitration, what would it be?
I would have far more cases decided by sole arbitrators instead of three-member arbitral tribunals.
In 2009, I challenged the prevailing party preference for having three-member tribunals in my article With Arbitrators, Less Can Be More: Why the Conventional Wisdom on the Benefits of Having Three Arbitrators May Be Overrated. There, I contended that, from a systemic perspective, having three arbitrators as opposed to one does not generally improve the quality of the arbitral process or the award and may actually do the opposite. Any increased confidence parties have in the arbitral process from having three arbitrators is accordingly misplaced.
I wrote that article before I had ever served as arbitrator based on my experience at the ICC, where I participated in the administration of approximately 3000 international arbitrations and read and critiqued over 1000 draft arbitral awards. Since then, my more granular experience sitting as arbitrator has only confirmed my views. Given parties’ attachment to having party-nominated co-arbitrators, however, I do not have high hopes that the preference for three-member tribunals will abate any time soon.
9. Some specific topics:
a) What is your approach to cybersecurity and data protection in international dispute resolution?
CPR and FTI Consulting have developed a superb series of training modules on cybersecurity and data protection. They explain the nature of the threats that currently exist, the duty arbitrators have to mitigate the risk they pose, and the practical steps arbitrators can take to do so depending on the particular circumstances of their practice. I have found this series to be invaluable.
And I can’t see the word cybersecurity without immediately thinking of Stephanie Cohen. Steph is my go-to guru for all matters related to cybersecurity and data protection. She is as practical as she is knowledgeable. I cannot overstate how much I have benefitted from her expertise and guidance.
b) Taking of evidence in arbitration: are you IBA Rules or Prague Rules? And why?
IBA Rules. The IBA Rules reflect the prevailing consensus with respect to the taking of evidence in international arbitration. In Procedural Order 1, I typically note that I may refer to the IBA Rules for guidance in the conduct of the proceedings and no party has ever objected to this or suggested that I should refer to the Prague Rules instead.
In all events, however, I am not sure that the two sets of Rules would be as different in practice as one might think. This is because the differences seem to me to be more matters of emphasis than fundamentals.
Both the IBA Rules and the Prague Rules give arbitrators ample discretion to craft solutions that make sense in light of the circumstances of the particular case. Does a reference to one set of Rules as opposed to the other lead arbitrators to exercise their discretion in a materially different way? Maybe. But if I had to guess, I’d say, “Probably not.” Unless and until the Prague Rules gain greater currency, however, it’s hard to know.
10. What do you see as the next “big thing” in global dispute prevention and resolution?
I will be interested to see how expedited rules may come to affect arbitral rules more generally. Many institutions now have expedited rules that provide for streamlined proceedings. These rules are often designed with smaller cases in mind, but it may be that they ultimately point the way to making arbitral proceedings more efficient across the board.
11. For which types of conflicts would you recommend ADR?
I am usually hesitant to suggest ADR to parties appearing before me. In the cases where I sit, the parties and counsel are almost universally sophisticated and experienced. I figure that they are aware of mediation and other forms of ADR and have considered those options. If they have not gone down that route, there is usually a good reason.
Having said this, I have on rare occasion had cases where I have suggested mediation at the outset. These cases typically concerned situations where the parties had an ongoing relationship that it would be to their mutual advantage to preserve and the dispute seemed to arise from a breakdown in relationships between key individuals. In short, they were textbook examples of the types of situations that can often be successfully mediated.
In these circumstances, I suggested that the parties might want to consider mediation and explained why – not because I thought the parties had failed to consider it, but to clear my own conscience. I just didn’t feel comfortable moving ahead with the arbitration without disclosing to them that I thought mediation might well allow them to reach a more constructive outcome more quickly and more cheaply.
12. In your view, what makes CPR unique?
CPR is a think tank that general counsel created 40 years ago to find ways to prevent disputes and promote the efficient resolution of any disputes that do arise. Through CPR, in-house counsel, practitioners, neutrals and academics collaborate to find innovative solutions to some of the field’s most vexing problems. It is CPR’s members who develop its rules to ensure that they are always in sync with users’ needs.
13. Do you have an anecdote you would like to share?
My decision to leave New York and go to the ICC was more fraught than one might initially assume. While I wanted to move to Paris and specialize in arbitration, it also required me to step outside my comfort zone. Apart from a college year abroad at Cambridge, I had never lived outside the US. My French was rusty (to put it mildly). Since law school, I had only ever worked in large law firms. Leaving Big Law in New York for the ICC would mean leaving all my friends. It would also mean taking a hefty pay cut.
As it came time for me to take my decision, I started getting cold feet and felt unsure about what I should do. I called Hans Smit to talk things over. He listened patiently as I explained my fears and reservations and then said, “Jennifer, will you please just go and lead an interesting life.” Thanks to Hans, that is what I’ve been doing ever since.