2016 is shaping up to be a year of change at the Asian arbitration institutions. SIAC recently appointed Delphine Ho as its new Registrar, and ICC Asia will undergo a change of leadership when Cheng Yee Khong steps down in August. HKIAC is also ringing the changes: Secretary General Chiann Bao will depart in September to return to private practice. She will be succeeded by Sarah Grimmer, a New Zealand-qualified lawyer who is currently Senior Legal Counsel at the Permanent Court of Arbitration in The Hague. Before she formally starts her new role, we invited Sarah to tell us something about herself, her career so far, and her ambitions for HKIAC.
Tell us about your career to date; how have you come to be where you are?
I trained and qualified in New Zealand, where I spent three years representing refugee clients in asylum claims. I then moved to Paris and joined the arbitration team of Shearman & Sterling LLP, before joining the ICC Court of Arbitration as Deputy Counsel for three years. From there, I went to the PCA, where I have spent the last ten years as Legal Counsel, then Senior Legal Counsel - apart from a sabbatical year at Cambridge to complete my masters in international law.
The PCA has a unique profile and caseload. How will a more commercially-focused institution compare?
My time at the PCA has coincided with a particularly exciting time in its history. In the last ten years, the Court’s caseload has expanded exponentially - from approximately 11 cases in 2006 when I joined to 113 pending cases today. The PCA administers disputes between states, state-entities, inter-governmental organisations, private parties and combinations of these entities. A significant part of the PCA’s work is dedicated to state-to-state arbitrations and investment treaty disputes, many of which are very high profile - for example, the pending Philippines/China South China Sea dispute, the Yukos cases, Philip Morris v Australia, Chevron v Ecuador, and a recent suite of investment treaty cases brought against Russia arising out of its activities in the Crimea, to name a few. The 2009 Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army was also a headline case administered by the PCA in the lead-up to South Sudan’s secession from the North.
“Regardless of the difference in the kinds of arbitrations, what is common to both (and all) institutions is the need to provide highly-skilled support services”
At the PCA, my primary functions have been to act as tribunal secretary and to advise the PCA Secretary-General on appointing authority matters. I have worked on more than thirty investor-state arbitrations and as registrar in three inter-state arbitrations, including the Arctic Sunrise Arbitration, in which the Netherlands is suing Russia under the UN Law of the Sea Convention over its 2013 arrest of a Greenpeace protest vessel. In addition to treaty-based claims, I have also been involved in fifteen contract-based disputes involving a public entity of some kind. Through this work, I have encountered a plethora of procedural issues, many of which are common to all kinds of arbitrations. I have had the good fortune to work closely with many extremely distinguished arbitrators and as part of a stellar secretariat. It has been an absolute pleasure and privilege.
My role at the HKIAC obviously differs in many ways. After ten years, I look forward to the new challenge of leading an organisation. HKIAC’s caseload is more commercially focused than the PCA. The work of its secretariat is more akin to the institutional administration that I was doing at the ICC in Paris and the appointing authority work of the PCA under the UNCITRAL Arbitration Rules. Regardless of the difference in the kinds of arbitrations, what is common to both (and all) institutions is the need to provide highly-skilled support services. No matter the kind of case, parties want their disputes to be resolved efficiently by independent and impartial tribunals. And tribunals need to be able to rely on institutions for prompt and steadfast administrative support.
What attracted you to the HKIAC?
Four main things appealed to me. First, I know HKIAC to be a sophisticated, dynamic and busy institution serving parties the world over. According to a recent survey, it is the most used institution outside Europe. Second, it benefits from world-class leadership, under Chair Teresa Cheng SC, and a superb Council and Executive Committee. Third, Hong Kong’s wider arbitral community is vibrant, engaged and very supportive of the Centre. And finally, Hong Kong is an incredible city located in a fascinating and beautiful part of the world.
A number of leading arbitration institutions are now led by women, or have women in senior roles. Does this mean that arbitration’s diversity issues are a thing of the past?
It is great to see so many women in leading roles at institutions. I believe that this will help drive change towards a fair representation of women in other key roles in arbitration. We are still a long way away from reaching that objective. But I am committed to taking the steps available to me in my new role at HKIAC to pursue fair representation. This is a continuation of the approach I have adopted throughout my career along with many of my colleagues. I was a member of the ICC secretariat team that recommended the appointment of a three-member tribunal all of whom, for the first time, happened to be women. And at the PCA, for example, my colleagues and I have always been mindful of ensuring that list procedures for arbitrator appointments include qualified women. The same applies to public speaking opportunities. In this respect, I am excited about the Pledge on Equal Representation in Arbitration, which was recently launched in London (www.arbitrationpledge.com). I believe that gender diversity is not a “women’s issue” but an issue for everyone; it is essential that we tap into the pool of female talent that is currently under-exploited. If we succeed, it will only benefit all users of the process.
“Another project which is particularly close to my heart given my work at the PCA over the last ten years, is developing the tribunal secretary service HKIAC currently offers along with its accreditation program”
What are you excited about working on when you take up your new role?
There are a number of projects I am excited about working on when taking up my new role. One is looking at expanding the mediation space that HKIAC already occupies. Another project which is particularly close to my heart given my work at the PCA over the last ten years, is developing the tribunal secretary service HKIAC currently offers along with its accreditation program. The appointment of high quality tribunal secretaries relieves tribunals of significant administrative load and results in cost and time saving for parties. My experience at the PCA bears this out. It is true for ad hoc arbitrations as well as institutional arbitrations. In addition, acting as tribunal secretary prepares younger professionals for their first arbitral appointments. In this way, the program provides a means of training the upcoming generation as well as a further opportunity to ensure the involvement of women at important stages in their arbitral careers.
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© Herbert Smith Freehills 2020