Arbitration Team of the Month #22
Jus Connect by Jus Mundi is pleased to nominate Norton Rose Fulbright for its coveted Arbitration Team of the Month (ATOM) Award, in appreciation for the firm’s extensive work in international arbitration as well as its commitment to diversity and inclusion.
Norton Rose Fulbright has an impressive track record in arbitration. They have been involved in at least 72 international case(s) known by Jus Mundi (49 Commercial Arbitration, 20 Investor-State, 2 Sports Arbitration, 1 Other) in a variety of economic sectors, including mining and quarrying; manufacturing; electricity, gas, steam and air conditioning supply, administrative and support service activities; financial and insurance activities; construction; transportation and storage; wholesale and retail trade; repair of motor vehicles and motorcycles; information and communication; professional, scientific and technical activities; real estate activities; public administration and defence; compulsory social security and accommodation and food service activities.
The firm’s approach to diversity is covered by five key strands: gender balance; racial, ethnic and cultural diversity; LGBTIQ+ inclusion; disability confidence; and, flexibility at different life stages.
With these values, it is clear that being a leader in diversity and inclusion is not just a box-ticking exercise for Norton Rose Fulbright, but an integral part of the firm’s vision and strategy.
Global Head of Arbitration, Mark Baker, is no stranger to diversity and inclusion, having been active in striving for equality for decades.
In our interview for ATOM, Mark discusses not only how his experience growing up in segregated America shaped his role in arbitration today, but also what he thinks is in store for the arbitration of tomorrow.
Interview with Mark Baker, Global Head of Arbitration at Norton Rose Fulbright
Firstly, congratulations on the ATOM award. Maybe we can begin by you telling us a bit about yourself…
It’s hard to believe, but I have been an arbitration lawyer for 40 years. Throughout my career, I have managed to do disputes in over 60 different countries around the world. I’ve been privileged enough to represent clients in the largest commercial dispute cases in the world, the two largest cases in South America, and two of the largest cases in Asia.
As well as being an arbitration lawyer, I also sit as an arbitrator. I find that, in doing both, it makes me much better at both. Because of this, I have always encouraged my arbitration lawyers to sit as arbitrators. No lawyer will ever try a case as an advocate in the same way after they’ve sat on the other side of the table, because you realize how silly many of the things that lawyers fight over in arbitration truly are. When you know how a tribunal looks at things, you really have a completely different appreciation for arbitration.
And so, that has been a guiding principle for our practice, and still is worldwide. We’re one of the few of the larger law firms that actively encourages Partners, and in some cases, senior associates to sit in smaller cases, because I think that it makes them better lawyers. It’s unusual for a firm the size of ours but it’s something I am proud of.
Norton Rose Fulbright has had a significant arbitration caseload over the years. With a global network of offices around the world, what is the secret for the firm to continue branching out globally and maintain one of the prime choices for clients?
If it’s a routine matter, it doesn’t really come to my desk. The people that come to see us are the people that are really looking for somebody to help them solve something that’s never been done before. If the answer were obvious, they could go anywhere.
As an example, I have had cases where I’ve had to visit the senior commission leaders in the European Union. I’ve even had some cases at The White House, meeting the President, the Vice President, and the Secretary of State. This is because these cases had geopolitical ramifications and that doesn’t happen in many practices.
In some of those jurisdictions, we’ve been able to do things that frankly have never been done before, like bring a legal stability arrangement to the law in order to give investors the confidence to invest.
Many of the people that I represent are really “married” to the host country of their investment. If you’re going to develop a major oil field offshore, or a major suite of mining complexes, or just make an incredible investment in something like semiconductor fabrication facilities, when each one costs 10 billion to build, you’ve got a partner – whether you like it or not. So, you tend to look at those matters in a slightly different way than just a normal commercial dispute. If the divorce happens, and it does from time to time, there’s so much at stake. It has huge ramifications for all the parties. But at the same time, arbitration gives you the opportunity to do some of the most creative legal work in the world.
We’ve tried to make our reputation on being very discreet handlers of some of the world’s largest disputes and negotiations. We’re unusual for a big firm in that we don’t issue press releases in arbitration. After a victory, we don’t talk to the press unless the client wants us to. But that’s really the rarity because the disputes belong to the client. Not to us. We’re just there to help them.
There’s been a big change in the international arbitration sphere. These days, somebody wins a motion for continuance and it seems like they get a press release out, which I think is kind of silly.
And of course, when I’m wearing my arbitrator hat, I’m the sphinx – I never say anything.
What trends do you foresee in 2023 in the legal profession?
2023 is a bit of an unknown because so much of it depends on the state of the world’s economy.
So, we have this massive inflation. When I was in London recently, they came out with a report from the Bank of England and a consultancy that said that inflation could hit 22%. We haven’t seen a situation like that in England since the end of the First World War.
If you look at energy, which is one of my specialities, you have massive differences depending on where you live. People in France have the luxury of cheap nuclear power because of governmental decisions that were made 50 years ago, and they stay committed to that. Alternatively, my relatives in Germany are wondering whether they should just buy tickets to the United States and come live with us because they don’t know if they’re going to have energy. And if they do have energy, can they really afford to pay for it?
Nobody can really predict what’s going to happen, other than it could become very ugly.
Disputes are always an economic indicator. Post-pandemic, the economy was good, particularly in the United States, with a rise in mergers and acquisitions, stock markets in initial public offerings etc. Now we’re on the backside of that equation. We have a slowing economy, maybe even a recession.
So, my prediction is that corporate activity is going to be slow, but disputes and particularly cross-border disputes are likely to explode at the end of 2023 and 2024. Because even if the economic recessions are short-lived, there’s going to be hundreds of thousands of contracts, of all sizes, that are going to be broken because of the pricing differentials and the equilibrium of the contracts changing.
Another prediction is that, if we’re going to really move and transition the economy to an electric world, which will be much slower than most people think, the number of disputes overall could be the biggest boom in cross-border and sovereign disputes in my lifetime.
Is technology changing the way you and your firm work in arbitration?
I think, at least in my firm, arbitration folks were the quickest and easiest adapters because we’ve been nomads our entire practice. We’re used to working remotely. I’ve done disputes in 60 countries, and we certainly didn’t have offices in all of those. In my line of work, I’m often a long way from home. So, for our group, we made the transition very smoothly. I think we are closer as a worldwide team because of the pandemic than we ever were before.
The first thing I did in lockdown was set up calls including everyone in the team – from the newest associates to the most senior partners. We did them twice a month because it’s not easy to accommodate people around the world comfortably in a single time zone. For one of the very first calls, I asked everybody to prepare two things in advance:
- To tell us what their favorite cocktail or wine was, and
- If they had a pet, to have the pet on Zoom and introduce them to the rest of the group.
Everybody thought that was hilarious! And it was so much fun to see the number of golden retrievers in the firm around the world.
The point of that silly exercise is that we all now have a much better insight into who we all are as people, not just as lawyers. Over the pandemic and since then, with this informality, we all got to know about each other’s kids and life, no matter which office we are located in. We know about where they spend their vacations, where people spend their lockdown, what kind of books they read, etc. We really know each other as individuals. As many of our offices have started to go back in part, we’ve kept the calls up by popular demand. I think we’re much better off as a team than we were before with the help of technology.
In terms of technology changing the way we handle cases, for small cases and procedural matters, I think we are much better off. If I don’t have to get on another plane for a small case, it’s awesome! However, for some of the larger cases, managing the time zones meant that every case took at least twice as long, because the workday for everybody together was four or five hours.
I think all of us would say, for the big final merits hearing, it’s more efficient to be physically together and to knock it out in two weeks than to spend a month on a case remotely. They often wind up being more expensive and by the end, people are just exhausted.
How important is visibility for your arbitration team? In what ways does your firm promote visibility?
Visibility is certainly an important part of the profession. We do all the usual things to encourage exposure. For example, we keep a chart of all the big arbitration centres and track their activities. We try to put our young lawyers into the young groups and work their way up by networking and making contacts!
But one thing we do that I’m proud of is the international arbitration report that Norton Rose Fulbright publishes, and which I had started back at Fulbright. We’ve just had our 30th anniversary of the Report!
We’re a huge firm with many practices and many lawyers and yet, that publication is the second most read publication of our firm worldwide. The publication is a compilation of 10 to 12 different thought pieces, usually written by both a Partner and an Associate. It’s a unique way for that person, from whatever level they are to get visibility. They get to connect their profile with a particular area of expertise.
Clients like it because it’s not a report about a case decision or who won. We try to really have substantive, practical things that in-house counsel can use to make their life easier.
I think that’s a hard balance to achieve. A lot of firms have attempted to copy this publication over the years, but the thing that always encourages me is, when I go to big arbitration conferences, I see people carrying around our publication. And there’s nothing better than that, Other than somebody writing to you directly, which happens to me with every issue. I often get GCs and associate GCs writing to me to say: “Gosh, you must have been reading our minds, this is exactly the legal issue that we were facing.”
A publication like this benefits both our people and our readers: it gives visibility and exposure for our people and practical advice for our readers.
Diversity in arbitration is a hot topic in the community. Norton Rose Fulbright has been at the forefront of the discussions and actions. How do you actively effect change and achieve greater equality in arbitral tribunals?
When I was growing up in the South, it was still a segregated society. When my high school became integrated, they decided that the thing that would make it the most effective was if the students were in charge of discipline and infractions. The school was very farsighted! They created a student court, and funnily enough, I was the Chief Judge. Our job was to solve the problems that inevitably arose out of putting people together that had no prior experience of each other. We worked all together, so the school inevitably had a very peaceful integration.
I learned a huge amount that I didn’t know before I went through that exercise. And I’ve carried that with me my entire life. So, when people talk to me about equality, inclusion and diversity, they’re talking to me about stuff that I’ve been involved with my entire career.
I guess the thing I’m most proud of about Norton Rose Fulbright is that together we formed REC, the Racial Equity Council. It’s staffed with lawyers from all backgrounds and all races. With the REC, we looked at everything that the firm did and does, from recruiting to work assignments, promotions up the ranks, and we made changes. Not lip service, but real changes. And so, I was really happy when our firm was selected as one of the best in the United States on all these issues. Of course, we’re taking that commitment to all our offices around the world.
But addressing diversity issues is not just something we discovered recently or do because we thought clients wanted it.
In fact, President Kennedy turned to us when the decision was made to integrate the American South. Instead of using the justice department lawyers, he turned to our senior partners at the time to integrate the law school at the University of Mississippi in 1963, before the Civil Rights Act. The firm received death threats, we had clients that walked away from us, but we didn’t back down at all.
So unlike most places that have just seemingly discovered this pretty recently, we’ve been walking this walk for a long time. And so it was that inspiration that led me to look at this really seriously in the 90s, long before anybody else was writing or talking about it.
You are probably familiar with my former colleague Lucy Greenwood. She’s been very active both in green arbitration and on this topic. She’s a wonderful person and together we wrote the very first article about “pipeline leakage”, which was the term we used for female lawyers coming into private practice but that tended not to be around anymore when partnerships were given. That article was written in the mid 1990s. I wanted to get the best information I could for our article, so I went to all the arbitral institutions and beat on them because they did not even keep the statistics about gender, appointments, etc.
From this, we became one of the very first firms to adopt flexible working conditions, especially for women. A big part of that came out of the arbitration practice group. We understood that there were talented lawyers – Lucy is a great example-, that had other personal duties. And so, in the 90s, we implemented flexible working schedules to retain women and enable them to do both.
The world is in a different place on many of these issues depending on where you are. But that gives us an even bigger opportunity as influencers in those other places where perhaps there isn’t quite as deep a commitment to these issues. I will never forget that, in our arbitration group in Saudi Arabia in the 1990s, we were the only law firm that had women lawyers.
I’ve always believed that in these situations, you have to not only trust the people that you’re working with, but like them too. Those are the ones that will go through the battlefield with you, but they won’t do that if they don’t think that you’ve got their back and that you have their best interests at heart.
In your opinion, how can in-house counsel collaborate more with their external counsel in selecting their arbitrators?
There is an old joke about the three most important things in an arbitration: the arbitrator, the arbitrator & the arbitrator!
This is therefore the one essential step of the arbitral process in which in-house counsel must be involved. How?:
- At a minimum, they need to have a spirited discussion with their outside counsel about the type of person and the skillset they should look for, so that counsel can comb their network and put together a list of possible candidates.
- Then, they need to be involved in whether or not the people on that list have appeared or are appearing before them or, to their knowledge, their counterparty, e., in checking there does not exist any conflict of interest with any of the candidates.
- Once they have a short list of potential arbitrators, they absolutely need to participate in the single most crucial step in the selection process, the arbitral interview. This is your opportunity to have a general chat with candidates in order to evaluate if this potential arbitrator can be trusted. You cannot discuss the case. This is more to discover the general mindset of the arbitrator, if they would be able to manage the process and the case efficiently, to manage the different personalities of arbitrators, and other stakeholders.
Your external counsel should make sure that you know what the rules of this interview are: what you can talk about and what you can’t.
To read more of Mark Baker’s practical advice in arbitration for in-house counsel, take a look at our Arbitration Toolkit for In-House Counsel.
Congratulations to the team again! Jus Connect by Jus Mundi wishes them good luck for the future!