Helen was recruited via the firm's PRC Scholarship programme, which targets outstanding native Mandarin speakers. On 1 May 2018, she became the latest PRC Scholar to be promoted to the partnership, and the first within the firm's Disputes practice. We asked about her experience of partnership so far, working in an all-female team, and her views on China's arbitration landscape.
First published in Inside Arbitration, Issue 6
How does the firm's PRC scholarship programme work? What benefits do you think it gave you?
The programme was established to expand the firm's offering to Chinese clients, by recruiting students from Chinese universities and sending them to study common law in the UK and Hong Kong. I first heard about it from Lucy Yao, a former PRC Scholar who is now the head of our Alternative Legal Services team in China. She was a year before me in university, and she won the firm's PRC scholarship to study for an LLM in London and then work in Hong Kong. When I heard that, I told myself that was an opportunity that I should pursue after I graduated. A year later, I applied for - and was offered - the PRC scholarship. Subsequently, the firm decided to change the scholarship to involve one year of study for a graduate diploma in law in the UK, one year of study for a professional certificate in law in Hong Kong, and a two-year training contract, culminating in qualification as a Hong Kong solicitor. While that would mean a much longer commitment, I did not hesitate for a second before saying yes to the scholarship.
In my view, the programme benefits the scholars, the firm, and our clients. PRC scholars are well placed to understand Chinese clients, both linguistically and culturally. We have also benefited from first-class common law education and training in a top international firm, so we can help our clients understand and make the most of the dispute resolution process. In international arbitration for Chinese clients, it is especially important for lawyers to truly understand the clients' cases and needs, and to help bridge any cultural gap between Chinese clients and the arbitration process, which can be rather foreign to most Chinese clients. In fact, it is often the cultural gap between Chinese and non-Chinese parties that leads to the dispute in the first place. It is our job to help our Chinese clients understand the process of international arbitration, in order to get them prepared for the process and do the right things to build up their credibility before international tribunals.
What attracted you to Disputes work?
I spent the first year of my training contract working on IPO projects in the corporate team, and just assumed that was where I would qualify. At that stage, I thought my litigation seat would be just a formality. But three weeks after starting there, I realised I loved everything about disputes work. What struck me was that the lawyers, together with clients, have strategic control of disputes cases, whereas the banks had been in the driving seat for all the IPO work I had done.
"I also enjoyed the chance to apply the law to the client's problems and come up with solutions"
I found the work both intellectually inspiring and challenging. Overall, I felt a greater sense of responsibility as a Disputes lawyer, and a bigger sense of achievement as a result. So I decided to build my career in the Disputes team. Fortunately, there was an opening in Shanghai; I moved on qualification in 2009, and – apart from a year in London – have been here ever since.
It was the year I spent in London that really solidified my attraction to international arbitration. In London, the cases were truly international; you could find yourself working on a dispute governed by Italian law, with a Paris seat and a Russian client, for example. That sense of the work being completely international made me really fall in love with arbitration.
Another inspiration was a conversation I had, early on, with Justin D'Agostino (now the firm's Global Head of Disputes), during which he revealed that he had never lost a case. He explained that if he thinks a case can be won, he will do his utmost to win it for the client. If not, he will do his best to encourage the parties to settle, rather than trying to run an unfavourable case. This really brought home to me that the job of a Disputes lawyer is to do what is best for the client, whatever that looks like. It is not about winning for winning's sake.
You are a partner in an international law firm. How does your Chinese background help in your work?
Towards the end of my London secondment, a large, China-based IT company came in for a meeting. The client had just lost the merits stage of an LCIA arbitration, and was looking to instruct new lawyers for the quantum phase. Paula Hodges QC (now our Global Head of Arbitration) took me to the meeting. While the meeting was conducted in English, I noticed the client's delight and comfort when they found out that I could speak Chinese and that I knew their company well. Subsequently, when I read the hearing transcript of the earlier merits hearing, I realised that the client had a good case, but it had not been run the right way. It was clear that the lawyers (another international firm) had mismanaged the whole arbitration, largely because they did not fully understand the Chinese client's case and the client did not fully trust its lawyers. Because of this, the client had presented a certain version of events to the lawyers, who had no choice but to run the case based on the information they had been given. There also seemed to have been little communication with the client's witnesses to prepare them for cross examination.
Working with Paula and others, we went on to secure an excellent settlement just before the quantum hearing was due to begin. Because I spoke the language and understood its culture, the client quickly felt understood, and that enabled it to trust us. My role in "filling the gap" between the Chinese client and its international lawyers, and helping to position us as a trusted adviser, really inspired me. Since then, I have tried to do the same with all my clients, whether Chinese or multinational. It is all about winning their trust, so they feel comfortable telling us the whole story and we can work together to run the case in their best interests.
Until the recent arrival of partner Hew Kian Heong, our Shanghai arbitration team was entirely female. Does it make a difference working in an all-female environment?
I have been lucky to work with great female leaders in Shanghai, including partners May Tai, Brenda Horrigan and Liz Poulos, and senior consultant Sarah Munro. They are all exceptional lawyers, with superb attention to detail, and they have each taught me a lot. They are also very caring, and excellent communicators. We have also long had a very efficient, smart and caring team of female associates in Shanghai, who support each other and share a lot of joy with each other. Our work is challenging, and can be stressful, but if you have a good team to help you tackle those challenges, it makes the process more enjoyable and the work day easier.
"I really admire my colleagues, at all levels, for being so hard-working and having true passion for the job. It is this, together with their strong sense of responsibility, that really hold the team together"
All of these skills also help us in our client-facing work. Disputes work is rarely enjoyable for the client; there is generally a lot at stake, and disputes cause clients headache and anxiety. If their lawyers can really communicate with them, it helps them to feel they are in good hands and able to trust us completely with all the facts of the dispute. Our aim is for each client to understand that we are fully on its side, as its trusted adviser. Without disrespect to my male colleagues, I suspect women sometimes have the edge on this skill.
How would you describe the arbitration landscape in mainland China?
China has made huge strides in the last ten years; Chinese courts and practitioners are increasingly supportive of arbitration. Last year alone, the Supreme People's Court issued four separate "Judicial Interpretations" on arbitration-related issues, all of which support enforcement of arbitral awards and encourage consistent decision-making. For example, the SPC has adopted a pro-validation approach to judicial review of arbitration clauses. If the clause does not expressly state its governing law, it will be deemed governed by either the law of the seat, or the law of the relevant arbitral institution, whichever gives effect to the clause. The SPC also extended the "reporting system" (which requires Chinese courts to refer to the superior courts before refusing enforcement of an arbitral award) from just foreign-related arbitral awards (where usually at least one of the parties is foreign) to domestic arbitrations (without the participation of a foreign party) as well. We have also seen a number of international arbitration centres, including the ICC and the HKIAC, set up representative offices in the Shanghai Free Trade Zone.
What challenges remain?
The SPC's efforts are encouraging, and widely welcomed by the international arbitration community. However, China does not have the long history of international arbitration that countries like France and the UK have; it still has work to do before it fully catches up with the world's leading seats. There are still some constraints in China's Arbitration Law, eg that arbitral tribunals sitting in China cannot order interim relief but must rely on the local courts to do so. It is also impossible to enforce a foreign order for interim relief in mainland China. However, China is moving rapidly in the right direction, and I am confident it will continue to make progress.
What advice would you give other Chinese nationals considering a career in an international firm?
Chinese clients are an increasingly important source of business for firms like Herbert Smith Freehills and its peers. Chinese nationals have the advantage of understanding Chinese clients, both culturally and linguistically. However, while it is vital to understand your client and win his or her trust, that by itself is not enough. The key skill for Disputes lawyers is presenting your client's case to a court or tribunal, in a concise and convincing way. Good English communication skills are equally, if not more, important; you must be able to speak fluently, and draft clearly and persuasively. For those of us without English as a first language, this can present a real challenge, and we have to work extra hard to master these skills. This is something that we need to work on constantly and continuously, in order to improve.
Passion for the job is also vital. I come from the generation of China's single child policy. Our parents have expected us to fulfil every one of their dreams – we haven't had siblings to share the load. As well as having successful careers in a profession, we have been expected to marry, to take care of our parents, to spend time with family and relatives, and to produce grandchildren (preferably more than one!).
Chinese lawyers beginning their careers now do not need to tick every one of these boxes. This is particularly true of the women. I see people now with different passions, both for their careers and something else which balances it. There is no "one size fits all" for this generation in terms of their jobs; they have many more options than my generation. As a result, young Chinese should choose a legal career only if they have a real passion for the law; and are willing to commit to it. That is the only way to succeed.