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Paula Hodges, QC im Porträt

„Women don't need to emulate men!“

Paula Hodges, QC, Partner and Head of the Global Arbitration Practice at Herbert Smith Freehills in London, talks about her fascination for dispute settlement and arbitration, the importance of communication, especially before hearings and how the award of the Queen's Counsel title affected her.

Paula, you are the head of the Global Arbitration Practice at the London based international law firm Herbert Smith Freehills. You have been working there for over 30 years as a lawyer. Why and when did you decide to become a lawyer?

When I was about 15 years old I got into debating and public speaking at school. Various people suggested to me that I should become a lawyer, so I started to look into the idea and gain some work experience with both barristers and solicitors. I decided that both careers appealed to me and went to study law at university.

 

I was not sure whether I should pursue a career as a barrister or a solicitor, but knew that, whichever route I went down, I wanted advocacy to feature strongly. I went to a couple of events hosted by law firms and barristers chambers and asked lots of questions. At the time it felt as though barristers' chambers weren't the right fit for me. Rightly or wrongly, they felt quite old-fashioned and I couldn't see many women there as role models. Having made that decision, my tutor at university then suggested that I should do a vacation placement, focusing on the best firm of solicitors for disputes to maximise my chances of doing advocacy. I did a placement at Herbert Smith Freehills and at the end of it they offered me a job. Clearly that was the right call as I have worked for 33 years at Herbert Smith Freehills and I am still very happy.

While you have represented clients from many jurisdictions, you are currently doing a lot of work in Africa and Asia. You are also the President of the London Court of International Arbitration (LCIA). What does your everyday job look like? How do you combine those two surely very time consuming positions?

One thing I can say: no day is ever the same. It varies a lot. For me, the clients always come first, and I spend the majority of my time working with other arbitration practitioners and as counsel representing those clients. My client-facing role consists largely of advocacy and strategy. Before the pandemic that meant a lot of travelling, especially to Asia and Africa, and also means I have lots of hearing preparation. As a partner at my firm it is also my role to expand the arbitration practice and acquire new business. Honestly, that is not something I really thought about during my law studies. I was just learning the law, and not thinking about the business side of the practice of law.

 

Since becoming President of the LCIA my workload has changed slightly. I used to accept nominations as arbitrator, but since I took on my new role, I have cut back on this. I also have a significant weekly involvement at the LCIA. The LCIA Rules provide for the LCIA Court (made up of the President and Vice Presidents) to be involved in certain procedural decisions and in the appointment of arbitral tribunals. There are at least three to four issues every day that need to be settled. In addition, I am the figure head of the organization I am often asked to speak at conferences and events.

You have been described by Chambers & Partners as the "most complete arbitration practitioner in London". What fascinates you about arbitration and dispute settlement in general?

I thought that this was an interesting question! At its most basic: I love finding solutions. Finding the right solution in the dispute for a particular client is what fascinates me the most, because the solution always varies from case to case. Sometimes that will mean that the best thing for the client is not to follow through with the arbitration to the end, but to aim to achieve a settlement on advantageous terms. But, if I'm honest, I also just like fighting cases and winning. (laughs) In fact, my husband would probably say I like "destroying" the other side. I'm not sure that's quite right, but disputes lawyers are fairly competitive people and do certainly like to win! 

 

What I like about arbitration specifically is the level of party involvement in the whole process and autonomy in shaping the right process for them. There is no "one size fits all" in arbitration. That makes it a particularly tactical and strategic form of dispute settlement.

 

And what do I like about dispute settlement more generally? It would have to be the mix of law, evidence and the involvement of other people, especially the witnesses. You have to really get to know them, so that they feel very involved. You have to throw yourself in at the deep end and take a really holistic approach to the whole dispute.

 

Last year you were appointed President of the LCIA. What is it like to preside over one of the world's leading international institutions for commercial dispute resolution?

It's a great honour. I was very surprised when I was asked. Before taking on the role, I was a Vice President at the LCIA. At a meeting of the Court we were all handed a shortlist of potential nominees and I was so surprised to see my name on there.

 

What has been so wonderful about it is the level of insight I get from being President, even compared to my previous role as Vice President. I see how the institution works, how the arbitrators act and get a bird's eye view of current trends and developments in procedure across the LCIA's caseload. It has given me a hugely valuable opportunity to expand my own know-how and my connections in the arbitration world so that I truly do feel "at the forefront" of arbitration. But it also gives me a chance to shape how arbitration develops. For example, we have just released the 2020 LCIA rules where we made certain arbitrator powers express, such as the ability to make an early determination on claims or counterclaims. I've also had to grapple with how to react to the pandemic and how to help the institution and practitioners adapt to a new way of working. Some of these changes may have a significant influence on how arbitrations are run even after the pandemic is behind us.

 

My role also presents an opportunity for me to focus on issues that are important to me. At the LCIA I am trying to help increase diversity in arbitration. It is so exciting when you see that you are bringing about change. At the LCIA now, we have pretty much reached gender parity on institutional appointments of arbitrators. There is still a way to go until we see a similar 50/50 split in party appointments, so it's critical that we get more women looking to be appointed as arbitrators so that there is a bigger pool of candidates available.

Have you faced demanding challenges in your work as an arbitrator and as an arbitration practitioner? If yes, how have you dealt with them?

As an international arbitration practitioner or counsel there are a few ongoing challenges, the first and foremost being how to keep up with developments in arbitration law and procedure all over the world. When I act as advocate on a case, I have to be fully prepared and know everything there is to know about it. There will usually be a very distinguished tribunal that ask a lot of challenging questions and that makes preparation even more important. In order to be able to prepare adequately I need my quiet time – which means that I usually take about two to three weeks before a trial where I try to keep other workload to a minimum. And clearly, that requires really good communication with the LCIA and my colleagues at HSF to make that quiet time possible.

 

The challenges as an arbitrator are different. As a new arbitrator, it would make most sense to be appointed as a member of a three person tribunal to be able to learn from other more experienced arbitrators. But instead we tend to see new arbitrators getting appointed as a sole arbitrator which means they have to learn everything alone. That is a challenge by itself. When you are the chair of a tribunal it can be very challenging when your co-arbitrators are not very responsive and it is up to you to encourage them. Another challenging situation is when the Respondent in a case does not participate and you have to make sure that you give them notice and still probe the Claimant's case.

In addition to your vast experience as an arbitrator, you have represented clients before the High Court in London as well as the Court of Appeal and the Supreme Court (former House of Lords). Which of the approaches of dispute resolution do you prefer – arbitration or litigation?

 

Well, for me personally, it has to be arbitration. I just love the flexibility and the international nature of it, particularly meeting different people and traveling the world.

 

Obviously, I do recognize that for the law to continue to grow and develop we need cases to be heard in the national court system. After all, arbitration applies the law, it doesn't make it.

In 2014 you were awarded the title of Queen's Counsel (QC). A great honor! Has this recognition had an effect on your work?

It has and actually more than I thought it would! It wasn't a title that I ever thought I would receive, but a number of judges I had appeared before as counsel suggested I apply and offered to sponsor my application. That helped a lot and pushed me to apply.

 

The main impact has been to increase the amount of advocacy I do. I am the advocate on my own matters, but I also co-counsel with a lot of firms from different countries. And the end result of that has been to increase the international aspect of my work even more.

What do you think are the reasons for the fact that significantly fewer women than men are awarded QC (side note, see: https://www.farorelaw.co.uk/insights/women-as-queens-counsel-why-are-numbers-so-low)?

While the statistics aren't great, they are improving, albeit slowly. More women are applying and going through the process. 2014 had the highest number of women – 19 women out of the 100 people awarded QC. So far I believe that there are only about 300 women in total who have been awarded the title.

 

What do I think are the reasons for there being fewer women at QC level? You can now become a QC as a barrister or as a solicitor, but the latter route is relatively recent, and still quite rare. If we look at barristers, obviously, it matters that enough women start a career in the profession. Those who are awarded QC tend to be quite senior, so you have to look back a few years to see what may have stopped women entering the profession in the first place. I was put off a career as a barrister because it didn't feel like I fitted in. It felt very male dominated, and about who you knew and not about how good you were. Whether that view was right is hard to say, but other women may well have felt the same.

 

These days we are seeing more women entering the profession which is great news. But there are still significant hurdles to overcome around retaining women (just as in many other professions) which are perhaps exacerbated by the self-employed nature of the profession. I also wonder whether there remain some barriers to female advocates getting to act as lead counsel and prove themselves "worthy" of being made QC. Unfortunately, I do think there is still a tendency for some clients to doubt whether women are tough enough to take the lead advocacy role. I suppose it's up to women like me to prove them wrong!

How would you generally describe the role women play in international arbitral proceedings?

In my role as an arbitration practitioner I tend to see women presenting their client's case, drafting pleadings, working with witnesses and experts. But, most of the time I don't see those women as the lead counsel on their matters; they tend to be part of the team behind the lead counsel. In my role at the LCIA, however, things feel more balanced. I am one of a number of women who lead arbitral institutions across the globe. I have also seen a real shift as more and more women are appointed as arbitrator. So things are changing, and there are some real bright spots out there, just not everywhere.

What could be done to increase the visibility of women in that field?

There are two really easy things that you can do that can have a profound impact: when appointing counsel or arbitrator always have a woman on your short list and make sure that panels at conferences and events have female speakers.

Do you think women need to have particular qualities in order to be successful in male dominated areas, such as international arbitration?

I'm not sure that arbitration is still as male dominated as it once was. Women don't need to emulate men. While I hesitate to assign gendered attributes, women are usually bright, conscientious and empathetic; that means they prepare well and understand people very well. These are qualities that are perfect for arbitration.

Which qualities should a young (female) lawyer have in order to become a successful arbitrator?

Experience and knowledge are hugely important in making you a successful arbitrator. So I'd advise young female lawyers to gain as much experience as counsel as possible. Experience of advocacy is really valuable, and for that, speaking practice is critical. I would recommend trying to act as Tribunal Secretary as a good way to see what being an arbitrator involves. It is also worth trying to build a profile by publishing – write articles and make sure you get credit for them.

 

Making contacts is also important. The arbitration world is actually very welcoming to young people, so there are lots of ways to do that. I'd strongly suggest joining one of the young groups at the arbitration institutions as a starter.

Which female lawyer should be nominated as a role model for breaking.through? Why?

I found this surprisingly easy. I would like to nominate Judith Gill, QC. She was ahead of me in the arbitration world and is a great role model to me and many others. She was the Head of the Arbitration Group at Allen & Overy, was the first female arbitration practitioner to be awarded QC, was my predecessor and the first female president at the LCIA and now works as a full time arbitrator in Singapore. She is also very modest and extremely supportive of other women.

 

Thank you very much for your time and the interview!

 

London/Frankfurt, 16 September 2020. The interview was conducted by Karen Kelat. Sincere thanks goes to Susann Aboueldahab for her support in creating the questionnaire.

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