Dana MacGrath on the New Generation of International Arbitrators
We spoke with Dana MacGrath, of counsel to Sidley Austin’s International Arbitration and Commercial Litigation and Disputes practices, about changes in the dispute-resolution landscape and developing a more diverse crop of arbitrators.
Q: What has changed in the world of arbitration since you began your practice?
Since I entered [international arbitration] in the late ‘90s, technology has had a major impact on the way arbitration is handled. It has allowed the procedures to become much more efficient. It allows video conference testimony and people to attend hearings that they otherwise could not attend if they needed to be present in person. It has improved the management of evidence in the arbitral proceedings and allows the tribunal to have easy access to the evidence it needs to write its award.
Arbitration is also increasingly accepted as a dispute resolution mechanism in areas where historically court litigation was preferred. For example, we have seen exciting changes at the intersection of intellectual property disputes and arbitration. IP disputes often involve highly confidential, proprietary information. That material sometimes must be reviewed in an electronic safe room with multiple levels of security, and cannot be printed. Technological advancements now make it possible to access highly confidential material electronically during a confidential arbitration hearing to present to the tribunal during witness examination or at closing arguments. It’s not like your hands are tied and the evidence you need is unavailable because only a small number of people with access to the safe room can see it. You can empower the tribunal to see evidence during the hearing confidentially through the use of technology.
Q: It must be gratifying to have been elected as President of ArbitralWomen. Share with us a bit about the organization.
Yes, it is a tremendous honor to lead ArbitralWomen, a leading non-profit organization that promotes women and diversity in international dispute resolution. It has a broad global membership with about 1,000 members across 40 countries. We organize events around the world. We have mentoring programs for both seasoned and young members of the arbitration community. The organization just celebrated its 25th anniversary with a diversity conference and gala dinner in New York on November 8, 2018. We held an anniversary dinner in Paris on November 22, 2018—25 years to the day from the organization’s inception in 1993. We just launched the ArbitralWomen Diversity Toolkit--a training program aimed at understanding and overcoming biases. It is an exciting time for the organization and I feel fortunate to be a part of its leadership.
Q: Would you say there is particular bias in arbitration—or is it similar to the diversity challenges we see across the larger legal landscape?
Historically in the world of international arbitration, there have been some repeat players in the role of arbitrator. There’s been a longtime perception—not unfounded in some respects—that the arbitration world has been dominated by the “pale, male, stale” arbitrators. There’s now a concerted effort to address this in a variety of ways. One is the relatively recent compilation of statistics on gender and other aspects of those who sit as arbitrators. The initial data, from around 2015, showed that the percentage of women on arbitral tribunals was far lower than 15 percent. The statistics on the makeup of arbitral tribunals was compiled initially by the International Chamber of Commerce and now most arbitral institutions gather such information and make it publicly available.
In recent years, we have seen incremental changes for the better in terms of the diversity of arbitrators. So the discussion now focuses on how these changes are being achieved and what more can be done. In large measure, credit is given to the arbitral institutions themselves, which are making a concerted effort to have women considered and appointed as arbitrators. Where institutions have the ability to appoint an arbitrator—as opposed to when a party appoints the arbitrator directly—we see institutions increasingly appointing women.
We now need to educate the arbitration users—law firm clients—about the need for and benefits of diverse arbitrators on arbitral tribunals. There are many younger diverse arbitrators who are less known to clients. We want to help these diverse arbitrators increase their profile and visibility so that clients have confidence as to their experience and are willing to appoint them to tribunals.
This is actually consistent with what we hear from clients who want increased diversity among the counsel team handing their arbitrations. In RFPs, they often indicate that they want a proposal that demonstrates a diverse counsel team because diversity is an important value of the organization. Those same clients need to learn about the diverse arbitrators, as well and why they are as qualified as the smaller pool of less diverse arbitrators who traditionally were appointed repeatedly. Increasingly clients are asking for this information: “You’re telling us there’s all these diverse arbitrators who are just as good. Who are these arbitrators? Tell me more.” So that’s what we’re doing now.
Q: In thinking about your time with Sidley’s arbitration practice, what stands out for you in terms of the firm’s culture?
One thing that I found at Sidley—and I’ve been here about five years—is that no matter what the issue is, there’s someone at Sidley who knows that niche area of law or subject matter. They will make the time to get on the phone with you and walk you through it or help on the matter. That’s one thing I’ve been really struck by. No matter how unfamiliar, and maybe bizarre your question is—you know, the client asks, XYZ—and you reach out to people at Sidley, “Does anyone know about X?” You’ll inevitably get back an email saying, “I know all about X.” It makes you appreciate that you’ve really got a tremendous depth of experience at the firm to count on.
(Excerpted from an interview with Dana MacGrath available on the website of Sidley Austin LLP on https://www.sidley.com/en/ourstory/ourstorieslanding/dana-macgrath)
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Policy on Funding Moot Competition Teams
Each year ArbitralWomen provides support to a number of Teams who participate in dispute resolution competitions, such as the Vis or Vis East International Arbitration Moot by covering their registration fee.
Following are the conditions for the funding:
Any qualified team requesting financial assistance must complete an application form providing details of the teams, resources, and the reason for the requested assistance. The application form is available on the website, and may be amended from time to time as the Board deems appropriate.
The Board, through its Moot Bursary Committee, shall consider all applications received and decide which team(s) shall be supported through payment of its(their) registration fee to compete. In general, teams selected will be from different countries. Applications filed after the deadline will be disregarded.
Criteria of selection:
The team must reflect ArbitralWomen's mission of promoting the participation of women in dispute resolution, i.e. at least half of the members of a team must be women.
The team must demonstrate the need for financial assistance.
Priority will be given to teams:
who have not previously participated, and whose school has not previously participated;
who have no support from their universities or no coach;
who come from developing countries or jurisdictions which, in the sole discretion of the Board, are in the greatest need of support for the advancement of women in dispute resolution;
of smaller number of students composing the team (for example 4 students as opposed to 8).
An all-female team may be awarded the ArbitralWomen President’s Bursary if the other requirements are met.
Nothing in this Policy prevents a team, which has already received funding in one year, from applying in future years. The Board shall treat each application on its merits and in relation to other applications received for that particular year.
The Board shall effect payment to the final payee rather than directly to the team. In the event the team for any reason cannot participate, the Board at its sole option may request a refund from the organizing authority, may request the organizing authority to apply the funds to assist another team in that year, or may request that the funds be used to pay for another team in the following year.
Funding will, in the first instance, be sought from external sponsors, who shall be identified and introduced to the sponsored team(s). Further funding by ArbitralWomen itself in any given year will be contingent upon the existence and maintenance of sufficient funds in the account of ArbitralWomen. Each year, the Board will decide the number of awards to be given in that year. Nothing in this Policy obliges the Board to provide funding in any given year.
Although the ArbitralWomen Moot Bursaries are limited to payment of the registration fee, as mentioned above, there is nothing to prevent the chosen sponsors from providing additional assistance to the teams assigned as their "fundee", but any such arrangement will be made directly between the sponsor and the applicable team.
