Carolyn Lamm is “a true legend in the business” and gains recognition as “an absolutely lethal cross-examiner who has years of experience – and it shows”. She “understands the important stuff that she needs to focus on with lightning speed”.
Carolyn Lamm is a partner at White & Case. She serves clients as lead counsel in international arbitrations in ICSID, ICC and other fora, as well as related litigation in US courts for foreign states, foreign state-owned companies and foreign corporate entities. She is an arbitrator on the ICSID List, first nominated by the US and then Uzbekistan. She has served as arbitrator in proceedings before ICSID, SIAC, ICDR, AAA, etc. Carolyn teaches international investment arbitration and is the distinguished faculty chair at the University of Miami School of Law’s White & Case LLM programme in international arbitration.
What inspired you to pursue a legal career?
I pursued a career in international arbitration because I love advocacy; international law; and people from different legal systems, cultures, religions, and economic and political systems. All have been fascinating and provide a stimulating and intellectually enriching practice.
What qualities make for an effective advocate in contentious proceedings?
Throughout my career, as an advocate I have found the most important qualities in a contentious proceeding are an inquisitive mind to develop evidence and facts; careful thought to develop clear, logical, legal analysis; and tenacity to convey and protect your clients’ interests. Focusing, to avoid distractions by extraneous or collateral issues, is important as well.
What is currently the greatest challenge facing international arbitration lawyers, and how do you ensure you are well equipped to face it?
As a substantive matter, the greatest challenge is assuring that the tribunal members and president are independent and objective. So many arbitrators – and reviewing courts – approach the task with preconceived views and implicit biases, taking into account political and other concerns and not an open mind in terms of the law. It’s exceedingly challenging for our system of dispute resolution and undermines the confidence placed by the public, the advocates and the parties in our arbitral systems. Careful choices of arbitrators and making a full evidentiary record all help to deal with this challenge, but it remains an issue.
Also, despite recent advances, women advocates and arbitrators remain under-represented in international arbitration. The current situation does require sustained promotion of women to assure equal representation. I am leading a multinational task force on gender diversity in international arbitration with participation of all of the major arbitral institutions and international organisations including ICCA, the IBA, the ABA, etc. This group will produce a report with recommendations to promote gender diversity among counsel, tribunals, and end users. We will provide it at the ICCA Colloquium in February 2021. Within law firms, we need to give women opportunities but also promote to our clients the use of women on tribunals. An important effort that White & Case and many firms have undertaken is to be a signatory of the Equal Representation in Arbitration pledge, which seeks to increase, on an equal opportunity basis, the number of women appointed as arbitrators in order to achieve a fair representation as soon as practically possible, with the ultimate goal of full parity.
Your practice spans a range of sectors, from energy to telecoms. To what extent is sector-specific knowledge on the part of the arbitrator important when handling commercial disputes?
As an arbitrator, the ability to listen and understand the parties as they make their case is essential, but practice sector-specific expertise is an asset to understand complex cases in commercial disputes. As an arbitration practitioner, it provides a unique insight that assists in developing evidence and the challenges, opportunities, and trends that a particular industry is facing prior to a dispute. Sector-specific knowledge coupled with sound interdisciplinary experience in commercial, policy, and technical perspectives can enable arbitrators to prepare effectively and reach well-informed decisions in every dispute. Despite the importance of immersing yourself in the client’s sector, the critical skill for an arbitrator is the ability to listen carefully to both sides of an argument; evaluate with care; balance the evidence and the law; and formulate a reasoned decision based on application of the applicable law.
How does your role as a lecturer enhance your work in private practice?
My academic experience is constantly strengthening my work in private practice. Being in the classroom has exposed me to new and evolving approaches to international arbitration. In turn, having the opportunity to exchange views with my students has provided me with fresh insights into how lawyers from different legal systems and at a different point in their careers approach the theory and practice of dispute resolution. These academic experiences, both inside and outside the classroom, continue to afford me with new perspectives and applications that can be used to meet the evolving needs and challenges of my various clients.
What is the most memorable case you have been a part of?
Throughout my career, I have been privileged to have memorable cases and clients. The most memorable are those in which I have contributed to the development of jurisprudence: Amco Asia v Indonesia, representing Indonesia in one of the first investment disputes; Abaclat v Argentina, representing 180,000 and then 60,000 claimants successfully (due to a US$1.3 billion settlement); and representing Uzbekistan in Metal-Tech, Spentex, and Oxus, the original award for which was recently affirmed by the Paris Court of Appeals. Wonderful cases, important precedent. And Fraport v Philippines, a long and contentious struggle that was ultimately successful for the Philippines. Currently, being a member of the exceptional team representing the Russian Federation in its defence of the US$50 billion Yukos arbitration awards – the largest arbitration award to date – is an extraordinary professional experience. But the dispute is far from over, with a seriously wrong appellate decision overturning the District Court in The Hague to conclude an investment born of serious corruption, bribery and illegality that has no consequence for the investors. It is shockingly wrong and contrary to established international law and public policy – a case that while memorable, cannot stand.
In your opinion, where does the future of investor-state arbitration lie?
Capital-importing countries continue to need to assure investors they will receive treatment according to international legal standards and have recourse to international resolution of disputes. Most of the international treaties are important to facilitate investment benefiting both the countries and the investors. If some adjustments to the procedures are needed to assure balanced and appropriate decision-making then specific issues should be identified and adjusted. Although some jurisdictions have implemented “sunset” measures for BITs, investor-state arbitration is needed and will continue to be the preferred method of dispute resolution. The implications of the Achmea judgment will continue to be played out in the EU and will be closely watched if there are any effects beyond.
What is the best piece of career advice you have received?
The most practical advice I have received is to perform with excellence; leave no stone unturned when looking for and analysing the facts and the law; and be strong and clear analytically in your view of the law. Do your very best to serve your clients, 24/7.