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Luncheon Address: Whose Arbitration Is It, Anyway? - WAMR 2009 Vol. 3, No. 3

Author(s): 
Carla Powers Herron
Page Count: 
10 pages
Media Description: 
PDF from "World Arbitration and Mediation Review (WAMR)"
Published: 
December, 2011
Jurisdictions: 
International
Practice Areas: 
Arbitrators and Arbitral Tribunals,
Public Policy Favoring Arbitration,
Dispute Resolution & Litigation
Author Detail: 

Carla Powers Herron, Before joining Shell in 2000,
Ms. Herron was a trial lawyer for twenty-two years and an
equity partner in Shook, Hardy & Bacon, L.L.P. She
specialized in complex commercial and product-liability
cases, representing such clients as Philip Morris, Inc.
(tobacco litigation), Koch Industries (royalty and
shareholder litigation), Bristol-Myers Squibb (pharmaceutical
and medical device litigation) and the City of Houston
Municipal Employees’ Pension System (securities litigation). In addition to
maintaining a full-time practice, Ms. Herron was adjunct professor of law at the
University of Houston Law Center for fourteen years, teaching trial advocacy,
mass tort litigation and pre-trial procedure. She is currently worldwide head
of litigation for the Shell Group, responsible for overseeing the Group’s most
significant litigation around the world and maintaining systems for
litigation/dispute resolution identification, logging, reporting, and risk
assessment.

 

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Originally from World Arbitration And Mediation Review (WAMR)

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LUNCHEON ADDRESS:

WHOSE ARBITRATION IS IT, ANYWAY?
Presented to the Institute for Transnational Arbitration – Dallas
June 18, 2009
By Carla Powers Herron

When I was asked to speak, I asked a number of colleagues for
their views on what I should discuss. I also read articles and
editorials in ADR publications.
From the corporate counsel perspective, I heard over and
over that the time and costs of arbitration, coupled with the use of
U.S.-style trial techniques, particularly relating to discovery, have
made it an unattractive option for commercial dispute resolution.
They would just as soon take their chances in court.
Outside counsel practitioners believe that, despite its
problems, arbitration is almost always preferable to litigation in
state and national courts. They are also tired of hearing corporate
counsel complain about the excesses of arbitration professionals
and what is wrong with the system. They believe that part of the
problem is the failure of in-house professionals to clearly
articulate their expectations and rein in outside counsel, if they
feel it is warranted. In short, corporate lawyers – stop griping and
get involved.
The academic view is that arbitration is not living up to its
potential because of a lack of creativity and client-centric focus,
attributable to actions and inaction by inside counsel, external
counsel, arbitrators and arbitral forums. They say, “Don’t throw
out the baby with the bathwater.”
Lawyers who also serve as arbitrators believe the system
works for the most part, but that there are problems:
complacency among arbitrators and arbitral forums that should
be addressed, delays created by clients and arbitrators, and no
system for rewarding arbitrators who are good procedurally and
sanctioning those that are not. In other words, it’s not perfect but
it’s better than the alternatives.
Having worn three of the four hats at various times in my
career, I see merit in all the viewpoints. At the same time, I find it