Private Practice Powerlist: Maria Beatrice Deli & Monique Sasson

Could you provide a brief introduction about yourself, your role and your law firm?

The Delisasson law firm was born out of a friendship. Maria Beatrice and I met 30 years ago at a law firm with Professor Giardina, and we worked together for many years. Maria Beatrice Deli then remained here in Italy, teaches at the University and continued to work with the professor in various law firms. On the other hand, I went to work in England first and in America afterwards. With my return to Italy, we thought of putting together our experiences, which were undoubtedly different but complementary and then, in any case, at the base, we have a thirty-year friendship, which still helps to let us coordinate the various activities.

What do we do? We deal with advisory in general, therefore advisory to companies and colleagues in matters of international arbitration. We also deal with international law, general investment law, and letters rogatory. We are arbitrators, and therefore, we are often appointed as arbitrators, both in domestic proceedings and in international proceedings with the various international arbitration institutions under the law. In any case, we are also co-counsels in some cases together with other law firms where we make use of our thirty years of experience in this sector, especially in the international landscape. Maria, do you want to add?

I would say that this idea of meeting up and then reconstituting a work team together was born precisely because we have an important common shared experience behind us. We went for the ‘Boutique law firm’ formula, maybe with fewer cases, but in this way, we can carry out a very precise, thorough activity. Therefore, the combination of our expertise has allowed us to enrich our collaboration with clients while allowing flexibility and versatility for the needs of other professionals, businesses, and our customers in general.

What are the main challenges facing international arbitration currently, and how do you think they can be addressed?

There are various challenges when it comes to international arbitration. In my opinion, one of the most important is the idea that there is a single type of procedure. Arbitration is a way of resolving a dispute. This dispute must then be built based on the conflict in question; therefore, if the dispute is a dispute which requires an extended document production phase, it will certainly be necessary to allow document production between the parties or an arbitration hearing consisting of several days that will certainly be necessary, but this does not mean that in all arbitration proceedings, it is necessary to adopt the same type of procedure. So, you need to have a flexible process that adapts to the circumstances of the case, a bit like a so-called ‘tailor-made’ procedure rather than a measure that suits everyone. However, there is also a cost problem, which is a problem that is increasingly felt by companies, which is an exponential increase in costs and which does not correspond to the amount that is the subject of the dispute.

So, the biggest challenges are certainly in trying to manage a procedure that otherwise risks becoming a very long procedure in terms of costs and technical times for which the idea of entrusting everything to a single arbitration panel is no longer justified by what the amount is. The idea is that arbitration is a procedure that responds to the needs of companies that are, in fact, often located in different countries and means that all types of disputes can then be resolved in this way regardless of the amount of controversy. Therefore, arbitration must not expressly become a means of resolving disputes that are too expensive, too time-consuming, and, consequently, inefficient. Instead, it must be a means of resolving disputes of all types. There are disputes of companies not located in different countries and which, therefore aspire a little to those needs, that is, to find a neutral place where these disputes can be resolved in a flexible, efficient, and rapid way.

How could accessibility of arbitration be promoted to a wide range of actors, while ensuring fair proceedings?

Let’s say that in the Italian system, there is a vast majority of small and medium-sized enterprises which, however, have a certain distrust towards arbitration; therefore, first of all, it would be useful to disseminate more information on arbitration, that is, to make it clear that arbitration is above all in a phase of solid internationalisation. Our companies are directed abroad to other countries, and this system fits their needs perfectly. Among the many prejudices that can be gathered when speaking with company representatives, there is naturally the issue of costs, which, as Monique previously said, has been one of the central issues, one of the important challenges for many years now. Companies must, therefore, understand, on the one hand, that de facto arbitration allows them to obtain a decision with the same binding value as the sentence of the ordinary judge. This is a fact that I do not always agree with and which companies do not always agree with.

Furthermore, it benefits from an important conventional system for recognising and enforcing arbitral decisions abroad. An element that makes it decidedly much more effective than the sentences of the ordinary judge. How to overcome this mistrust? Only through information knowledge. On the one hand, the needs and fears of companies, and trying to get in touch with company representatives, and above all with lawyers because then evidently the inclusion of an arbitration clause in the terms of a contract is carried out by corporate lawyers. So, it really is an arbitration promotion activity in a capillary way, if we want to, which is carried out by institutions and associations. The Italian arbitration association with which I have been collaborating for a long time comes to mind, and they have precisely this function of making arbitration and the functions of arbitration known at an internal and international level.

How is the role of sustainability in international arbitration evolving, and what are the challenges and opportunities that arise in this matter?

The role is certainly evolving, and the era in which we are living was perhaps fundamental in identifying potential that had not previously been highlighted in the appropriate way, and therefore, certainly the possibility of reducing the travel of the parties involved and developing systems for which the hearings and meetings between the parties and the arbitrators are online meetings and in-person meetings where necessary. The possibility has been created of having online hearings, which work very well and which indeed are sometimes more difficult depending on the place where perhaps one of the parties is located, where perhaps sometimes the problem of the time zone arises and therefore of the differences in time zones between the parties which mean that in all hearings there are some moments in which the parties see each other in person, but otherwise see each other online. This reduction in travel and travel-related costs has been significant. It means that in some ways, it is possible to achieve the same objective that was previously achieved with hearings, which instead, especially case management conferences, are very often now almost always held online, being an important phase, but in which the parties do not necessarily have to communicate only in a documentary way, but can also see each other without incurring the related costs.

Transcription companies have become very efficient, there are also packages, and perhaps those problems that arise from technology, such as connection problems in online hearings, have now been addressed, and it is possible to organise everything in this way. There are now also shared platform drives, in which the parties upload documents in such a way that everyone benefits from the technological standard. Indeed, in recent years, technological development has been such an impetus for which the situation is certainly more suited to the needs of arbitration, considering that it often arises with parties who are usually located in very different places with different problems but in which it is possible to find a meeting point for the management of the proceedings which is represented by these common platforms and online hearings which in any case respond to the needs of seeing each other briefly perhaps also to discuss some issues that need to be addressed immediately, without the idea that everyone is available for meetings in person and that therefore travel and emissions into the atmosphere can still be limited.

How to see the future of international arbitration in terms of sustainability? Are there any emerging trends or ongoing projects that could help promote this further?

The theme of sustainability is also felt by the arbitration institutions. On the one hand, they obviously favour all those methods of managing the hearings Monique spoke about a moment ago. They clearly favour it, sometimes suggest it and also try to bring the parties to manage the hearings online. A relatively recent trend in the direction of sustainability is to use databases or platforms that can, for example, collect all the arbitration documents and also collect the requests for arbitration, all the documents with which the parties begin the arbitration procedure. This is, for example, the case of the ICC Case Connect: a platform on which the party wishing to initiate an arbitration can upload its application with all related documents. We can imagine that from a practical point of view, this will be the path of the future.

As far as the Italian situation is concerned, however, we see an even different approach to sustainability, if you will, represented, for example, by a progressive centralisation of the method of administering arbitrations by the institutions, trying to concentrate responsibility for the administration of cases that generally by tradition they were managed by more peripheral institutions. This, for example, is the case of the Arbitration Chamber of Milan, which has entered into a series of agreements with arbitration chambers of other provinces and all of this, in some way, responds to the needs of sustainability because it allows the use of standards that are very attentive to the needs of both domestic and international arbitration and therefore in some ways we can say that Italy too is transforming and adapting following what is a bit the experience of other countries such as to remain in the European sphere such as Switzerland and Spain where this phenomenon of centralisation has already occurred.

How, in your opinion, can we foster a culture of inclusion in the international arbitration sector, encouraging collaboration and the comparison of ideas between different perspectives?

The real problem that arises here is the so-called Catch-22: if the representatives of women and minorities are not nominated the first time, it will be increasingly difficult to be appointed subsequently. The real problem is the first nomination. The parties rely on a person who has experience in arbitration as a counsel because they have always worked in this area but have never been or were arbitrators. The arbitration institutions have responded promptly and ensured that there are these appointments in the appointments of new arbitrators and people who have not been previously appointed, obviously in cases where it is deemed appropriate to ensure that the arbitrator is there. And this was also a movement to promote minorities and precisely the appointments of women. The problem, however, is that the arbitral institutions do not always appoint the arbitrators; therefore, in any case, the appointments are a minimum percentage.

How can the problem be addressed? An awareness of the parties and of the lawyers who represent them, who in some way must be part of these appointments, and ensure that these appointments are increasingly frequent because certainly all-round representation in terms of arbitrators does nothing but benefit the system in itself, therefore also the representation of perhaps different points of view, and different sensitivities. Surely, a lot of work is being done about it, and the work of raising awareness is a work that I see a lot abroad, perhaps in Italy a little less because there is sometimes a reluctance on the part of some colleagues who are sometimes maybe not so ready to grasp this market demand, but from an international point of view we now see it almost universally it is not possible to present a list of arbitrators in which there is not an equal representation of women/men and also a representation of minorities representative for whom the truth is that this is certainly where it is heading and there is certainly a reluctance which is also a normal reluctance to maintain the status quo towards which, however, we see a firm reaction worldwide, especially those that are the larger companies which instead turn in the opposite direction and therefore promote what are gender diversity and diversity in general.

Maria, you have been a promoter of gender representation in arbitration procedures, thanks to your position in the steering committee of the arbitration pledge for equal representation, could you tell us more about this initiative?

Well, the pledge is the manifesto that a law firm promoted to increase the appointments of female arbitrators. It is now quite dated, several years old, and I have already been on the Italian steering committee for more than six years. It was a very interesting experience because the pledge is intended precisely as a manifesto. It obtained a lot of support at an international level and was signed by professionals, institutions, associations and businesses. The idea is precisely to strengthen the appointment of female arbitrators, which is an objective theoretically shared by everyone.

The problem, as Monique said, is reality. Very often, we see strong resistance also from professional colleagues and from the parties in arbitration who sometimes fall back a bit in choosing arbitrators who have tested on other occasions, in which they feel reassured by the appointment of someone they already have experienced in some way. Instead, the pledge would like to establish itself as a rule so that there is an equal presence of women in the shortlist of possible arbitrators candidates. As a steering committee, we tried to implement an all-round promotion, therefore also through meetings called ‘meet your female referee’, which therefore gave the opportunity to get to know, through interviews and direct contact, some of the women arbitrators best known for ensuring that they can be an example and ensure that they can give confidence to the parties. It is not a simple operation. Italy is not a country that in itself experiences this gender diversity with peace of mind, so there is still a lot of work to do. Still, the number of subscriptions we have received in recent years also gives us hope in consideration of the activity that is also carried out by other associations that deal with gender diversity. My personal experience has been quite positive but not totally positive in terms of appointments. There has often been some resistance from those who could have appointed women referees, so the work is still ahead of us. We’ve come a long way, but there is still a lot to do.