The following is an excerpt from the published interview with Lucy Reed. To see the full interview, please click on the link to download the article above or below.
Q: For those unfamiliar with international arbitration, can you briefly describe your current work as an arbitrator and an advisor to clients involved in international arbitrations?
My colleagues and I work primarily as counsel to clients in international arbitrations, both companies and government entities. In international commercial arbitration, the disputes typically involve alleged breaches of contract (sales, construction, joint ventures, M&A), which the parties—from different States—have agreed be resolved through binding arbitration rather than one of the party’s national courts. These cases, for example under the International Chamber of Commerce (ICC) or London Court of Arbitration (LCIA) Rules, are by definition confidential.
We are also specialists in investment treaty arbitrations, in which a foreign investor is allowed by the relevant treaty to bring a dispute relating to that investment directly against the host State (rather than having to rely on its home State to represent it) for resolution through binding arbitration. Many are heard by panels constituted under the World Bank’s International Centre for Investment Disputes (ICSID), and the existence of the cases is public. For example, we represent ConocoPhillips in a multi-billion dollar ICSID case against Venezuela for (among other things) alleged expropriation of COP’s oil investments. We also defend the Government of Turkey in a multi-billion dollar claim brought under the Energy Charter Treaty by an alleged Cypriot investor.
As Freshfields is recognized as the pre-eminent international arbitration firm, we tend to get hired for major disputes, involving hundreds of millions and often billions of dollars. Unlike domestic arbitration, these international proceedings are rarely quick or inexpensive. We write extensive factual and legal “memorials” (briefs), interview witnesses, and do oral advocacy at hearings. Cases can go on for years, but the different stages of the cases provide a lot of variety.
I do not sit as an arbitrator in investment treaty disputes, to avoid facing “issue conflict” in connection with recurring legal issues under the investment treaties. In international commercial arbitration, I still prefer serving as counsel—I like advocating more than I like deciding—and so I sit as arbitrator in only two or three cases at a time. I just finished almost a decade of sitting on the Eritrea-Ethiopia Claims Commission, which was the first arbitration panel constituted to decide issues of international humanitarian law.
Q: Can you describe your favorite legal issue/project that you have worked on (and why)?
My two favorite legal projects, because they were unique, were (1) serving as general counsel of the Korean Energy Development Organization (KEDO), the international organization set up after the North Korean nuclear crisis in 1994, and (2) sitting on the Eritrea-Ethiopia Claims Commission (EECC).
As for KEDO, it is hard to beat the experience of leading negotiations with North Korea and in North Korea. I remain proud of the work we did, with hundreds of experts, in effectively negotiating from scratch the regulatory infrastructure necessary to commence a nuclear power plant construction project in North Korea. I wrote about this process in my Hague Lectures in 2001.
As for the EECC, it was a privilege to be part of the first tribunal resolving international humanitarian law disputes; as rough and imperfect as the EECC claims process had to be, the two governments did agree on a legal process rather than keep fighting. All EECC decisions are publicly available on the website of the Permanent Court of Arbitration.
Q: You have worked on international arbitrations that involved countries in which women are not expected to work as lawyers. Has that caused any issues? If so, how have you handled them? Do you have any advice for other female lawyers who encounter similar problems?I have been fortunate enough not to face any serious issues, but I have not had to work in some of the toughest countries like Saudi Arabia. At the Iran-U.S. Claims Tribunal we co-existed with our own traditions, and the Iranian Government representatives treated me no differently than they had the U.S. Government’s Agents who were men. (I have a favorite story about how there were more comments on my height than my gender.) True, they did not shake my hand, but I recognize that as part of their religion. And the one time I visited Iran, in 2002 as the guest of the Ministry of Foreign Affairs for an arbitration conference, I dutifully fulfilled the legal requirement of wearing a coat and a headscarf—it did not affect the high level of our discussions and debates as lawyers. In North Korea, if they were surprised that a woman would be head of delegation, they never showed it.
Advice for others? Prepare culturally, pick your battles, and practice responses to the worst that might happen.
Q: What are the most important roles that you believe ASIL plays? What are the greatest challenges facing it or any other international law organization in the coming years?
The most important role ASIL plays is that of convener: convener primarily of academics and practitioners, but also of government lawyers and leaders, to discuss and debate—in person and in print—the most pressing international law issues of the day. The mission of ASIL is public education, to host and elevate the discourse, to emphasize that international law is not some elite specialty but rather real law that is on the front page and all around us.
 Lucy Reed, Mixed Private and Public Law Solutions to International Crisis, in 306 Recueil Des Cours 177 (Académie de Droit International de la Haye ed., 2003).
Latest posts by hlsjrnldev (see all)
- The Justice Conundrum: Africa’s Turbulent Relationship with the ICC - February 18, 2019
- ECtHR Orders Permanent Ban: Can international courts impose disciplinary measures on legal representatives? - February 13, 2019
- Measuring Transformation: At the 50th anniversary of the American Convention on Human Rights, a move to maximize its structural impact - February 6, 2019