Rachael Kent is a partner and vice chair of the international arbitration practice group at WilmerHale, based in Washington, DC. Ms Kent has nearly 20 years of experience representing clients in a wide variety of commercial and investment disputes in arbitration proceedings seated in common law and civil law jurisdictions worldwide. She has represented parties in disputes in the energy, mining, aerospace, defence, pharmaceutical, construction, insurance, consumer electronics, telecommunications, technology and retail sectors, among others. She has taught international arbitration at the Georgetown University Law Center and the Duke University School of Law.
WHAT INSPIRED YOU TO PURSUE A LEGAL CAREER?
In the last year of my undergraduate studies, I worked part-time for a consulting firm in Washington, DC. In addition to plenty of filing and administrative work, I had the opportunity to work on negotiating and drafting several contracts. One of the consultants, who was a lawyer, suggested I think about law school, which until then I had never thought about. When I got to law school, I realised it was a perfect fit. I enjoyed the intellectual challenge and loved the process of legal advocacy, using the facts and the law to build a compelling case.
WHAT DO YOU ENJOY MOST ABOUT WORKING IN ARBITRATION?
My favourite thing about this field is working closely with clients across a broad range of industries to solve interesting and complex commercial disputes. Every case presents new facts and new challenges. I especially like getting to know my client’s business and the commercial context underlying the specific dispute at hand. I enjoy spending time with individuals at every level of my client’s organisation, asking questions, digging into the details, and piecing together the history of the parties’ relationship and dispute. It is an added bonus to be able to do this in an international context, working with clients, lawyers and arbitrators from jurisdictions all over the world with very different business and legal cultures.
HOW HAS THE MARKET CHANGED SINCE YOU FIRST STARTED PRACTISING?
In the time I have been practising, the market has become increasingly global, and international arbitration is more broadly recognised and accepted as the preferred means of resolving cross-border disputes. When I was a law student, there were few if any courses on international arbitration at most law schools, and young law graduates were under less pressure to specialise. Now, more firms have dedicated international arbitration practices, more young lawyers are looking for positions in those practices, and even within the field, there is increasing specialisation. The growth in investment arbitration has also led to more academic and public interest in the field. All of this has resulted in an explosion in conferences, journals and online publications dedicated to international arbitration, growth in the number and sophistication of arbitration institutions, significant innovations in arbitration rules, and the publication of influential guidelines and recommended rules.
WHAT DO CLIENTS LOOK FOR IN AN EFFECTIVE ARBITRATOR?
Someone who is willing to invest time and energy in understanding the facts and carefully analysing the issues, and who has both the confidence to make a difficult decision and the humility to listen and learn before jumping to a conclusion.
HAS TEACHING ARBITRATION AT UNIVERSITIES HELPED YOUR PRIVATE PRACTICE? IF YES, HOW?
I enjoy teaching and see it as a valuable complement to private practice. It gives me an opportunity to think about the broader legal framework, and to approach interesting questions without the lens of specific case objectives. It also brings me into contact with young lawyers from all over the world with diverse perspectives. I enjoy learning from my students and look forward to seeing many of them grow into the next generation of respected arbitration lawyers.
HOW DO YOU PREPARE FOR AN ARBITRATION?
From the very outset of the case, I try to understand my client’s objectives and to develop a clear framing of the issues, so the tribunal can follow how the evidence and legal arguments are relevant to the issues it needs to decide. In many arbitrations, the written submissions are extensive and the hearings cover a lot of evidence in a compressed time period, so helping the tribunal put the facts and legal arguments into a logical framework is essential. I ask myself what the toughest issues the arbitrators have to decide are, and focus on helping them find a path through those issues, which gets to the outcome that is best for my client.
HOW DO YOU SEE YOUR PRACTICE DEVELOPING OVER THE NEXT FIVE YEARS?
This question reminds me of the well-worn quote “predictions are hard, especially about the future”! I have been fortunate over the past 20 years to represent clients across a broad range of disputes, industries, and geographies. When I started in this field I never would have guessed that my practice would include everything from mobile phone joint-venture disputes to development of oil and gas fields, and from Bermuda form insurance arbitrations to pharmaceutical patent licence agreements. I hope that the next five years will bring the opportunity to handle a similar range of challenging commercial and investment disputes.
WHAT HAS BEEN YOUR GREATEST ACHIEVEMENT TO DATE?
My greatest professional achievement as an international arbitration lawyer was actually in a case that settled prior to the final arbitration award. I was able to help negotiate a complex commercial agreement, working closely with the business teams that achieved an outcome in a long-running and highly contentious dispute that was better than either party could have achieved through an arbitral award. It was by far the most challenging professional experience I have had to date, but also one of the most rewarding.
While I am proud of my work as an advocate in the cases I have been privileged to handle, I think my greatest achievement has been balancing a busy professional life with being a mom to three young children. It is a balance that I still work at every day.