Rachael Kent is a partner and vice chair of the international arbitration practice group at WilmerHale, based in Washington, DC. Ms Kent has 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, telecoms, 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 has been your most interesting case to date and why?
When one of my children asks who is my favourite child, I give the diplomatic but entirely true answer that I love them each differently because they are unique and different individuals. I feel the same way about my cases. The most interesting thing about my practice is the wide variety of cases, each of which brings something new and unique to my experience.
What role does arbitration have to play in the worldwide enforcement of intellectual property (IP) rights?
In the past 10 years, I have seen an increasing number of arbitrations under licence agreements or other contracts that involve IP rights. Many of those cases involve disputes about commercial terms, such as the payment of royalties or the scope or term of the agreement. An increasing number of those cases also involve questions about the validity or infringement of IP rights. The attributes of international arbitration can make it an attractive forum for resolving IP disputes, including the confidentiality of the proceedings, the ability to appoint decision makers with subject-matter expertise, and the ability to consolidate proceedings involving worldwide IP rights in a single forum. Parties are also increasingly willing to consider arbitration as a forum for resolving disputes over licences to standard essential patents on FRAND terms. As IP rights become increasingly important to companies in a broad range of sectors, I expect to see the trend of arbitrating IP disputes continue to accelerate.
What are the most significant differences between commercial and investment arbitrations as counsel?
I think the similarities are greater than the differences. In both types of cases, the best advocates create a clear and compelling narrative that uses the factual record effectively, and presents legal arguments that are consistent with the governing law but are also intuitive and take into account the equities and commercial reality. In both cases, counsel need to give the arbitrators the tools – the evidence and legal arguments – needed to reach their desired outcome; but, equally importantly, they also need to give the arbitrators a reason to want to reach that outcome.
I think two key differences from the perspective of counsel are, first, investment arbitrations almost invariably involve jurisdictional objections, which can lead to longer timelines and additional expense; and second, there is a developed body of precedent on many of the legal issues that arise in investment arbitrations, while commercial arbitrations involve a broad range of legal and contractual issues that are often novel or unique to the specific contractual language at issue.
How does WilmerHale distinguish itself from competitors in the market?
Our practice is known for the high quality of our written and oral advocacy; for the depth and breadth of our practice; and for our ability to handle the most complex and highest-value disputes in any jurisdiction.
In what ways is international arbitration in the USA changing?
US parties continue to be important users of international arbitration. In the past, there has sometimes been a perception that US parties, counsel, and arbitrators adopt a more “Americanised” approach to international arbitration. In my view, this is often overstated. American participants in international arbitration, like those from other countries, bring their own legal training and experience to bear, but they generally do not adopt US litigation practices in international arbitrations. In my experience, American participants are adept at customising the procedures to the needs of the case. I think this is borne out by the large number of prominent American arbitrators who are selected in international cases, including by non-American parties.
What advice would you give to younger practitioners hoping to one day be in your position?
I am often asked this question by law students and young practitioners. My advice to them is to focus their energy on learning to be excellent oral and written advocates. Many younger lawyers try to learn everything they can about international arbitration rules and investment treaty law. This is important, of course, but in my view, it is more important in the early stages of one’s career to learn advocacy skills – how to evaluate facts, how to work with witnesses and experts, how to write clear and persuasive legal arguments, and how to develop case themes. Younger lawyers can build these skills as counsel in international arbitrations, but they can equally build them in other contexts, such as commercial litigation in their own national court system. Excellent advocacy skills are transferrable from litigation to arbitration, but there is no substitute for learning and building those skills early in one’s career.
You have had a very distinguished career to date. What more would you like to achieve that you have not already?
I still feel like every case gives me new challenges and a new opportunity to learn. My cases involve different industries, different governing laws, and different technical, factual, and legal issues. I have worked in this field for 20 years, but in so many ways, I still feel like I am just getting started. I am a long way from thinking that I have achieved everything I want to!