Scholars in Conversation: Lucy Reed with Harisankar K Sathyapalan
The Scholars in Conversation series features interviews with academics and scholar-practitioners across diverse disciplines and geographies. Anchored by NLSIU faculty members, these conversations explore the work of leading voices in their fields in order to bring their insights to bear on public discourse.
International arbitration plays a key role in shaping policies around the world. Yet, it is not widely discussed outside of legal/arbitration domains. This Scholars in Conversation edition with scholar-practitioner Lucy Reed is an attempt to engage a wider audience on this important field. Reed also discusses relevant issues that concern practitioners and aspiring arbitrators.
Reed is the president of the Court of Arbitration, Singapore International Arbitration Centre (SIAC). An independent arbitrator with Arbitration Chambers (New York), she is also the immediate past president of the International Council for Commercial Arbitration (ICCA). She retired in 2016 from Freshfields Bruckhaus Deringer, where she led the global international arbitration group from the New York, Hong Kong, and Singapore offices. She was also a professor of practice and director of the Centre for International Law at the National University of Singapore through 2019. In addition to practising international commercial and investment treaty arbitration, she served as an arbitrator on the Eritrea-Ethiopia Claims Commission (a humanitarian law/Geneva Convention claims commission), as co-director of the Claims Resolution Tribunal for Dormant Accounts in Switzerland (a Holocaust claims tribunal), and, while with the US State Department, as the US Agent to the Iran-US Claims Tribunal. Reed, a member of the US Council on Foreign Relations, is also a former president of the American Society of International Law. She was educated at the University of Chicago Law School and Brown University.
Earlier this year, Reed delivered the second edition of the Annual Arbitration Lecture jointly organised by the National Law School of India University (NLSIU) and SIAC, titled ‘Five Things You Think You Know about Arbitration, But You Don’t’. On the heels of this lecture, she expanded on this and discussed other issues surrounding international arbitration over a Zoom call with NLSIU faculty member Harisankar K Sathyapalan—whose research interests lie in international economic law and maritime law with a focus on arbitration. Drawing on her vast experience, Reed discussed a range of issues, from international arbitration’s cost-effectiveness to the use of AI in arbitration. Among the many surprising yet enlightening things that Reed shared, she argued that the performance of Indian courts in the realm of arbitration has been improving, that the asymmetry in investor-state arbitration is not as marked as many claim, and that age should play a role in the selection of arbitrators.
During the NLSIU-SIAC Annual Arbitration Lecture 2025, you challenged a common belief that international arbitration is cost and time effective. Could you elaborate on the factors that you think are undermining arbitration’s efficiency today? As the head of one of the top-notch arbitral institutions, how do you think institutions may address these challenges?
In the lecture and elsewhere, I think more accurately, I challenge the idea that international arbitration is supposed to be faster and less expensive than court litigation. This is true of domestic arbitration, but it’s not meant to be true of international arbitration. This is because in international arbitration, it may be a million- or a billion-dollar case, but if that’s an amount that’s important for the parties and international arbitration will lead to an award that’s not appealable on the merits or enforceable under the New York Convention and generally the counsel have spent a very long time in preparing the case, then why is it reasonable to expect it to be fast and inexpensive? People are going to international arbitration with their disputes because it’s cross-border—they don’t trust the courts in each other’s jurisdiction—and so international commerce requires international arbitration. I don’t join that cacophony of people who say, ‘International arbitration’s a disaster because it’s inefficient and takes too long and costs too much.’ International arbitration, of course, should be time and cost effective in relation to the specific case, but most important is the opportunity for all parties to be heard and a fair result.
Now, having said that, I also feel that international arbitration has gotten too slow, largely because the submissions are overly long and repetitive. Tribunals aren’t fulfilling their role of disciplining the parties to restrict the questions to what’s important in the case, to set page limits, to be well prepared in the case, and to guide the amount of time and legal spend required. I feel that this is important for institutions to help with. The SIAC Court is actively considering a new practice note on page limits—not just for post-hearing memorials, which is already common, but also for the initial memorials and the reply memorials. We will suggest to tribunals as well that they limit the number and scope of document production requests. Everyone knows that doing a short submission is harder than a long one. But nonetheless, I think it’s very important to start pruning and focusing the written submissions in international arbitration—although, it will never be like domestic arbitration with 10-page awards and lightly reasoned decisions.
There is a tension that primarily exists in the literature between the French philosophy of international arbitration—of the delocalised and the idea of a purely autonomous international arbitration—versus the English common law approach—of domestic courts supervising arbitration, particularly at the place of arbitration. How do you view this tension? And some also argue that courts interfere too much, while others say not enough. In your opinion, are courts overstepping and weakening the very foundations of arbitration?
My short answer is no, depending on the courts in the relevant jurisdiction. One of the things I always say, and expect my students who are interested in practising international arbitration to do as well, is to remember that it’s with the grace of the courts that we have international arbitration. The national courts are giving up a large part, though not all, of their jurisdiction to decide disputes based in that jurisdiction. Therefore, one must live with how the courts give up that jurisdiction. I think the balance between courts and arbitration tribunals is excellent in many jurisdictions, including Singapore and the United States. This is primarily so in New York where the judges are well trained and the arbitration legislation is clear, so there is not a review on the merits of what the arbitrators have decided. There are some unhelpful decisions in the US where you’ll find that the courts say, ‘Well, the arbitrator got it wrong, but we cannot interfere and that’s what you get if you agree to arbitration instead of court litigation.’ They are rare instances, but interesting to read. India is doing much better in terms of speed and the quality of the judges who look at the enforcement of arbitration awards and, I assume, also have to step in once in a while to decide challenges to arbitrators.
But many other courts are comparatively poor and you can’t expect your award to be enforced there. So, what’s the solution? It’s twofold. The place of arbitration you select is very important, and the counsel need to have thought carefully about the role and the attitude of the courts in the place of arbitration.
The other important aspect is training. Many judiciaries welcome training. The ICCA conducts judicial workshops, and at SIAC, we do judicial training when invited. We have found that it’s very important to have judges involved in judicial training. Judges, understandably, are protective and don’t want a bunch of young LLMs coming in to teach them how to deal with international arbitration. So, it takes some delicacy and diplomacy. I want to highlight the role ICCA plays in that and the developments in India, which are excellent. I can’t speak to the delays in Indian court litigation, but in arbitration, there is much improvement.
Investor-state arbitration is controversial because the system is viewed as asymmetric and particularly partial towards multinational corporations. Because of this, it is embroiled in an ongoing legitimacy crisis—although, there is an effort to address it at the UNCITRAL [United Nations Commission on International Trade Law] level, through the Working Group III, and other reform efforts, such as the EU’s proposal for a multilateral investment court. Do you think the legitimacy crisis is being taken seriously? And are these efforts good enough to address the structural problems of the system of investor-state arbitration?
This is a vast topic, and in no particular order, I will give you the following observations:
First, it’s important to look at the statistics. The perception that states lose to investors more than they win is not correct. Investors often lose on jurisdiction and there are times when investors win on the merits but are not awarded significant damages. It is important to have the facts.
Second, I do not agree that there is a legitimacy crisis in investor-state arbitration. It’s traditionally unstable to have private investors fighting disputes directly with states, because under public international law, states are used to managing disputes only with other states. And most states, in my view, have never really adjusted to the realities of direct arbitration with private investors. So, when they lose, they are quite unhappy and perhaps understandably so.
My third observation is to remember how we have arrived at 3,000-plus bilateral and multilateral investment treaties. States are inviting foreign investment with these treaties. States want investors to come, and investors want to know that they’re not subject to potentially biased national courts when investment disputes arise. In my view, states write the treaties and it is states that have to solve the perceived problems by changing their treaties, for example by carving out more protections for public interest rights related to health and climate change.
My last observation is, as promoted by the EU, we will see international investment courts. I understand the push for this and I also understand why investors want grandfather rights to traditional arbitration tribunals. Solutions are being pursued. I don’t view it as a crisis.
How do you think the recent developments in arbitrator ethics and professional misconduct have influenced the credibility of the system, especially in maintaining the impartiality and transparency of international arbitration?
I am in favour of the codes of conduct that have been passed, including the one that ICSID [the International Centre for Settlement of Investment Disputes] and UNCITRAL did together [the Code of Conduct for Arbitrators in International Investment Disputes]. I don’t think that the content of the codes of conduct should surprise anybody, in that they underscore the importance of absolute arbitrator impartiality and independence and the appearance of the same.
Backing up a bit, when I was at Freshfields, leading the International Arbitration Group, we were the first to set the rule that no partner could be an arbitrator in investor-state arbitrations for two reasons. One reason is issue conflict, because awards are public and the treaty interpretation issues are recurrent—how can a lawyer argue for a particular interpretation of a treaty clause on behalf of her client in one case and then sit as an arbitrator deciding the same interpretation issue in another case? A second reason is that arbitrators from the major firm practices might find themselves having to resign as arbitrator because the firm takes on a new client—say an IPO client—creating a conflict late in the arbitration. By now, most of the major firms follow this rule of ‘no investor-state arbitrator appointments’. Overall, my personal experience is that, for the most part, arbitrators take their independence and impartiality very seriously. They are aware, for better or worse, that they’re participating in deciding public policy issues when serving on tribunals and do their best to try to balance the interests of both sides. Of course, it is a legal process leading to binding decisions, so one has to look at the burden of proof, adequacy of proof, and decide the law based on the facts.
In the book Dealing in Virtue, Dezalay and Garth refer to an epistemic community of arbitrators as a mafia and a European white male–dominated field. And, in an article in the European Journal of International Law, Sergio Puig talks about a close-knit community of arbitrators who get repeat appointments. In terms of diversity in international arbitration, including gender, geography, age, and professional background, what meaningful shifts have you seen and what still needs to change to make the field truly inclusive?
The conversation around gender diversity is robust, largely due to the ERA [Equal Representation in Arbitration] Pledge from several years ago. I credit a partner from a major firm with naming the process ‘the five-minute rule’. To illustrate, before the ERA Pledge, when an international arbitration counsel was asked, ‘Who do you think would be a good arbitrator for case X?’ the immediate reaction would be to list mostly the kind of people you describe, because they are known quantities. But if one takes five more minutes, it’s quite easy to identify, almost always, several highly qualified women candidates. It just takes pausing, thinking, and promoting women, which is now being done much more often.
Today, the diversity issues on the front burner concern the shortage of tribunals with regional, ethnic, and geographic diversity. The challenge is to find ways equivalent to the ERA Pledge for groups other than women. The key is building actual experience, so it is important to accelerate substantive training through, for example, moots, appointments in relatively small cases, and shadowing international arbitrators. This is true for the Global South in particular, including India and China. Arbitrator Michael Hwang of Singapore once said to me, ‘When will we stop asking who are the good Asian arbitrators and just say, “Who are the good international arbitrators?”’ The world is big and I think progress has been slow.
It is important to remember that, as I always tell my students, international arbitration may be increasingly popular but it is a niche practice. It has grown, but not as much as many think. Participation in LLM programmes, training programmes, and moots does not mean there will be jobs. But, as I also tell my students, training in dispute resolution has many benefits even for the many who will not be able to develop international arbitration practices.
Age is something I feel strongly about. One of the things I’m seeing now that troubles me is young international arbitration lawyers clamouring to get their first arbitrator appointment as if that’s some kind of gold star. Serving as an arbitrator is a very serious role. Even in a small case, the arbitrators decide the fate of two parties. I think it’s very important for arbitrators to have gained some serious mileage in practice and in life. I didn’t sit as an arbitrator until my 50s except in some very small cases.
How do you see technology, particularly AI, influencing international arbitration in the near future? Are there particular opportunities or risks that you think the community should be paying closer attention to?
I’m staying in the outskirts of this discussion, which is very vibrant, because I’m of an age where I don’t think I’m going to learn to use AI as much as other people. Nonetheless, I consider it an important discussion. I can see certain obvious benefits of AI in international arbitration. In my order of importance, AI is definitely helpful in providing less expensive translation, interpretation, and court reporting in arbitration hearings, as well as in written submissions, when there are multiple languages in an arbitration. It’s quite amazing what AI can do on that front. AI is also important in accelerating legal research, provided there’s due care by counsel in reviewing the material that comes up in AI research. I am told AI is helpful in helping arbitrators do first drafts of the introductory sections of an award, including the procedural history and the parties’ positions, with AI serving like a tribunal secretary. I’ve heard the barrister Toby Landau talk about the benefits of legal-focused AI systems.
What are the challenges? One is disclosure. Should there always be disclosure by counsel and arbitrators that they have used AI in preparing memorials and awards, respectively? We will probably see our way to the need for an affirmation by counsel and arbitrators that, when using AI, they have checked every source and written the material themselves. A second challenge is confidentiality. Law firms are necessarily developing their own in-house AI systems to avoid the risk of confidential material finding its way on to the internet
What advice would you give to the students and young practitioners trying to enter the world of international arbitration and meaningfully contribute to the field today?
Point one: To repeat, international arbitration is a relatively small and niche practice with not enough room for all the students and young lawyers who are interested in practising it full time. The sub-point is that, despite this practical limitation, the training in international arbitration in law schools, LLM programmes, and law firms is important in and of itself because dispute resolution is something we do every day.
Point two: Young lawyers should get the best training available in law school and in their early practice and take advantage of the moot competitions. I have one caveat as to mooting. My strong opinion, which others share, is that written advocacy is the most important skill in international arbitration. Therefore, I particularly support the moots that focus on written memorials as well as on oral advocacy.
Point three: International arbitration is a procedural specialty, not a substantive specialty. Therefore, any training in civil procedure, evidence, and general litigation practice in national courts is critical.
Point four: As for substance, what I tell young lawyers is to look for the new sectors that are going to lead to new types of disputes. Read up on climate change, cryptocurrency, space law, and the use of AI, for example, as these are all areas that are going to need substantive legal specialisation. At SIAC, we’re looking hard for arbitrators experienced in bitcoin, cryptocurrency, and blockchain disputes. What led me to my international arbitration practice was the Iran-US Claims Tribunal that followed the Islamic Revolution, as well as the expansion of bilateral investment treaties. These things are not going to happen again. The younger generation needs to be ready to take advantage of what’s coming over the horizon.
Point Five: Be patient. Like any legal field, it takes many years to develop expertise in international arbitration.
The final piece of advice I have for young lawyers is this: Always have the back of your colleagues and look for opportunities for them, whether it is to write, to speak at a conference, or take on a new client.
About the Authors
Lucy Reed is the president of the Court of Arbitration, SIAC and an independent arbitrator with Arbitration Chambers, New York.
Harisankar K Sathyapalan is an associate professor of law, NLSIU.