Dana C MacGrath

MacGrath Arbitration

New York www.macgratharbitration.com

dana@macgratharbitration.com Tel: +1 917 952 2007

Biography

Dana MacGrath, FCIArb, is an independent arbitrator based in New York on the rosters of various arbitral institutions. She has arbitrated numerous disputes over the course of her arbitration career of more than two decades. Previously she practised at Sidley, Allen & Overy and O’Melveny, and Sullivan & Cromwell. She has a broad range of industry experience, including oil and gas, LNG price reviews, construction, telecommunications, IP, life sciences, sale of goods and international investments.

I was keen to work in international dispute resolution, having majored in French and living in Paris for a year in university. Fortunately, early in my legal career I was assigned to a large, complex international arbitration matter, from which I learned an extensive amount about arbitration procedure, the application of common law and civil law principles, arbitration written and oral advocacy, and how evidentiary arbitration hearings were conducted. I thoroughly enjoyed it and decided to focus my practice on arbitration and award enforcement. Now I apply my decades of arbitration practitioner experience to my work as an arbitrator.

In your opinion, what qualities make for a successful arbitrator?

It is helpful to have substantial arbitration practitioner experience, so you have faced many of the challenging procedural aspects of arbitration by the time you are serving as arbitrator and understand the perspective of counsel who appear before you. It is valuable to have handled arbitrations involving a variety of industries, seated in different countries around the world, and involving the application of different substantive laws (both common law and civil law). A thorough understanding of the New York Convention and award enforcement issues contributes to the success of an arbitrator of commercial disputes. Teaching arbitration and related courses is valuable; staying knowledgeable about arbitration legal and practice developments demonstrates engagement in the field. Finally, it is important to be able to work collegially with co-arbitrators on a tribunal and to manage counsel and tribunal members when serving as chair.

How has the arbitration market changed since you first started practising?

The increased use of technology has changed arbitration advocacy and has made arbitration more time and cost efficient. Technology also makes accessible legal resources on arbitration that required niche expertise to research when I started practicing arbitration.

The increase in international business transactions has led to arbitration becoming an increasingly preferred dispute resolution method. Now many long-term international supply contracts have arbitration clauses. Some long-term contracts include price review or price reopener provisions that, in the absence of party agreement to a price adjustment, may result in a price review arbitration. Many complex international patent disputes are resolved through arbitration, as are energy sector disputes, construction industry disputes and financial disputes. Treaty arbitration has increased substantially. Diversity of arbitrators and arbitration practitioners is increasingly important.

What role do you see thirdparty funding playing in arbitration moving forward?

Third-party funding of arbitration is likely to increase. Many arbitral institutions have incorporated rules or practice notes specific to disclosure of the identity of funders for conflicts check purposes. The increase in arbitration funding may lead to an increase in arbitration. Additionally, there is now legal authority for a prevailing party to recover its costs of arbitration funding.

What are the advantages of having diverse geographical and sector experience? What benefits does it deliver to clients?

The advantages of having substantial arbitration experience in diverse geographic areas and industry sectors are that it gives an arbitrator versatility to understand and decide a wide array of disputes in many regions across the globe, to manage the arbitration effectively and draft an enforceable award. To what extent has the international arbitration community met the challenge of improving diversity in recent years?

Recent statistics reflect that the arbitral institutions have improved the gender diversity of arbitrators appointed, but women are still significantly underrepresented on tribunals. Many organisations, such as ArbitralWomen, the Equal Representation in Arbitration Pledge, Racial Equality for Arbitration Lawyers, WWA-LatAm and others, aim to increase the visibility of well-qualified, younger and diverse arbitrators. The arbitration community need to be more inclusive.

Why did you decide to set up your own independent arbitrator practice?

After two decades in the arbitration practice group at leading global law firms, I decided to set up my independent arbitrator practice to dedicate more time to serving as arbitrator and be free of the potential conflicts that arise at a law firm. I chose to take this step far earlier than law firm retirement age.

What advice would you give to up-and-coming practitioners hoping to one day be in your position?

Work hard and develop your core arbitration skillset as early as possible in your career. Develop a network of mentors and peers. Actively participate in arbitration-related organisations. Publish articles. Accept speaking engagements. Have patience, stay focused, and thank those who mentor and support you as you develop your career.

Peers and clients say: “Dana is highly recommended for commercial arbitration” “She is an absolutely fantastic leader” “She is smart, collaborative and a relentless advocate for diversity”