James H Carter

Independent Arbitrator

New York www.carterarbitration.com

carterj@carterarbitration.com Tel: +1 917 363 5337

Biography

James H Carter has served as chair of the Board of the American Arbitration Association, president of the American Society of International Law and member of the London Court of International Arbitration and is a member of the Court of Arbitration for Sport. He is a retired partner of Sullivan & Cromwell and retired senior counsel of WilmerHale and is ranked by Chambers USA (2022) in Band 1 of international arbitrators nationwide.

In their then revolutionary book of 30 years ago, Dealing in Virtue, Professors Dezalay and Garth wrote of two paths by which individuals become international arbitrators, paralleling the two ways in which a man might become a medieval bishop: be born the son of a nobleman, with family background and social prominence (ie, in modern terms, attain name recognition, such as by becoming a domestic judge, or even a politician, and parachute into the role of arbitrator later in life without special preparation), or labour for years as a scribe or rising cleric (ie, an arbitration law specialist) and (perhaps) eventually become recognised and “promoted.” I was cast in the role of “scribe” as a young associate in a global law firm, where I began as an American litigation practitioner but was drawn at an early stage to arbitration by the opportunity to work on disputes in an international context, beyond the US court system. I was attracted by the flexible and often creative procedures, as well as the stimulating cultural variety. That evolved, with seniority, into opportunities to continue in the same field as an arbitrator, still enjoying the enormous variety of interesting work.

What are the advantages and disadvantages of having a global practice?

There are no material disadvantages to having a global practice, although your friends may embarrass you with their envy. The advantages are manifest.

Sources report that the prominence of third-party funding in arbitration cases is now increasing the scrutiny surrounding award enforceability. How do you think this could impact award enforceability?

Third-party funding in its modern form will lead to more challenges to disclosures by arbitrators, with questions regarding any, even any remote, connection between arbitrators and funders involved in cases before them. For those arbitrators who are members of law firms, that will involve in some cases inquiry about the involvement of others in their firms with funders participating in a case before the arbitrator and a potentially significant expansion of disclosure issues. That may mean fewer arbitrators will be comfortable retaining law firm affiliations.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

Techniques must be shaped to fit particular cases, of course, and procedural innovations are not cookie-cutter solutions that are likely to change many arbitrations significantly. There will be sweeping changes as remote and hybrid and fully remote hearings become commonplace.

Do you see a link between the increasing awareness of clients regarding claims they can bring, and the current reluctance of states regarding investment arbitration?

Increasing numbers of large claims obviously is a major reason for state resistance to international arbitration today. Studies show that states don’t lose a disproportionate share of cases, but the total number and size of the cases they face are deterrents to states participating in and incentives for them to seek to reform the process.

It seems that practitioners are increasingly competing on fees for arbitration matters. Is there a danger of a race to the bottom in terms of fees? How could this be avoided?

Competition is not a bad thing. Lawyers offer their services at varying prices, and prospective clients seem to have no difficulty in sorting out what they expect and what they will pay for.

What challenges do hybrid hearings present from an impartiality standpoint?

In my experience hybrid hearings do not generally challenge impartiality, but care must be taken to avoid paying less attention to and perhaps giving less significance to remote testimony that may be more interrupted and harder to follow and in which the immediacy of human contact is absent.

What advice would you give to someone starting out as an arbitrator?

One doesn’t easily “start out” as an arbitrator. If you want or are forced to pursue Dezelay and Garth’s second route, start early in your legal career by building a body of knowledge and experience as counsel. Find a job at a firm or organisation (there are many) that already make arbitration a part of their practice, and then let it be known (persistently, if necessary) that you want to learn about and do this work. Experience in domestic court disputes is useful, but don’t stop pushing to do arbitration, too. Let the friends you meet in practice know that you would enjoy party appointments, which is where your first cases are likely to come from. Persist, and you, too, could become a medieval bishop.

Peers and clients say: “Mr Carter is a key figure in the market” “James is a very well-regarded arbitration specialist” “He is an extremely bright and highly respected arbitrator”