Caroline Duclercq has been named for the third year in the 11th edition of the ranking of French lawyers recognized by their peers in the "arbitration and mediation" category by the American legal journal Best Lawyers.
Following the 4th edition of the SCLA Global Forum, a report on third party funding in Arbitration was published in the Journal of Swiss Chinese Law review, in which several legal specialists address the issues of third-party funding.
Caroline Duclercq notably dealt with the French perspective and ICC practice on third party funding.
French perspective
From French perspective, there is no legal regulation on Third-Party Funding under French domestic law. Since there is no legal prohibition, it is considered authorized. In International Arbitration Parties use more and more Third-Party Funding for the following reasons: to finance the Arbitration proceedings, to reduce the risk of having to pay a high awarded to the Claimant or as counterclaims to the Respondent (TPF may not only relate to legal fees, but – particularly on the Defendant’s side also to the risk related to the merits of the case, i.e. having to pay the amount awarded) or to benefit of the Third-Party Funder’s expertise in the enforcement of the award. Although, there exists no legal regulation of Third-Party Funding in French law, in November 2015, the National Council of Bars passed a resolution recalling that the counsel should remain independent towards the Third- Party Funder. This has the following implications: the counsel should remain bound only by the client’s instructions which is of particular importance since the Third-Party Funder may try to interfere with the proceedings and have a lead on the strategy. And the professional secrecy of lawyers only applies to the relation client/lawyer and not to the relation Third-Party Funder/lawyer.
ICC practice
Regarding the ICC-Rules and Practice, it can be observed that there is no provision on Third-Party Funding in the ICC-Rules. However, the ICC Guidance Note for the disclosure of conflicts of interest by Arbitrators according to which the Arbitrators - when declaring their statement of independence and impartiality and assessing whether to make a disclosure - should consider relationships between Arbitrators, as well as relationships with any entity having a direct economic interest in the dispute. Thus, Arbitrators shall declare whether they have relationships with a Third-Party Fund. For the future, there is discussion within the ICC whether to provide for an obligation in the Rules for the Parties to disclose whether they use Third-Party Funding.
what to be regulated in the future?
The question what are the main issues that shall be regulated? The first issue is conflicts of interest. Since Arbitrators shall submit a complete statement of independence and impartiality, the ICC informs them about all the Parties involved. The question then arise whether the Arbitrators need to be informed of the use of Third-Party Funding and the identity of the Fund. In order for the ICC to provide this information, the Parties shall be obliged to disclose the existence of Third-Party Funding and the identity of the fund before the constitution of the Arbitral tribunal. Only then, the Arbitrators can submit a complete disclosure. Disclosure after the constitution of the Arbitral tribunal involves the risk of having to recall an Arbitrator.
The second issue is who is the real party to the arbitration proceedings. In a recent case, the Respondent requested the arbitral tribunal to join a “Third-Party Fund” as a co-claimant. The arbitral tribunal refused to join the “Third-Party Fund” since it was not a party to the arbitration clause which could also not be extended to it. Therefore, it has no rights and obligations towards the respondent because the assignment of the claim in dispute by the claimant depends on the future decision of the Arbitral tribunal and the Third-Party Fund did not have any control on the proceedings. Therefore, different arbitral tribunals may reach a different conclusion where the assignment of the claim in dispute is effective before the initiation of the proceedings and where the “Third-Party Fund” may exercise complete control on the proceedings.
Four female arbitration practitioners have launched a Parisian disputes boutique called Medici, promising to donate a portion of their client fees to help promote gender equality.
Medici was launched late last month by a four-partner team featuring Marie-Laure Bizeau, who joins from Derains & Gharavi, Valence Borgia from K&L Gates, Caroline Duclercq from Parisian boutique Altana and Delphine Pujos, who previously worked at Linklaters.
The firm will act in commercial and investment disputes across a range of sectors while the partners will continue to accept arbitrator appointments.
The four partners have also launched a charitable fund to which they will donate 10% of their fees unless instructed otherwise by clients. The fund will promote gender equality and fight against all forms of violence and discrimination against women, both in France and internationally.
Bizeau tells GAR that the four founding partners have been “discussing the idea for years,” having all had the opportunity to work with each other at various points in their careers. She says they had wanted to create a firm that would “resonate with who we are and what we stand for.”
“I look forward to this adventure,” she adds.
This is the second firm that Bizeau has helped launch, having been a founding member of Derains Gharavi & Lazareff – now Derains & Gharavi – when it opened in 2009. She was promoted to partner there in 2018.
Hamid Gharavi says that Bizeau is a “terrific lawyer” who “contributed immensely” to the firm. “We thank her and wish her well.”
Like the other founders of Medici, Bizeau has a lot of experience in Africa-related disputes. She previously helped Lebanese investors win an ICSID award against the Democratic Republic of the Congo. The award withstood a subsequent annulment bid.
Other work includes acting in a €240 million UNCITRAL claim against Gabon; defending Qatar in a €100 million ICC claim over a waste facility; and representing a mining investor in the Paris Court of Appeal in its attempt to revive a billion-dollar claim against Uzbekistan.
Bizeau has been a visiting lecturer on international and domestic arbitration at the University of Montpellier since 2014.
Borgia began her career in 2007 at Eversheds in Paris. Two years later she moved to K&L Gates, where she was promoted to counsel in 2017.
She is qualified in Paris and New York and focuses on commercial disputes. Her experience includes acting in a €90 million ICC arbitration between a company and an African state relating to game farming. She acted in two other ICC cases concerning industrial equipment and an aircraft purchase contract.
In 2018, Borgia was part of a group of lawyers that submitted a report to the Paris Bar Council recommending the implementation of a proactive policy to combat harassment and sexual violence. She is a co-founder of the Women's Foundation.
Borgia says she is “thrilled that our project is becoming a reality.”
Duclercq started out in 2002 at Cabinet Lazareff, founded by the late French arbitrator Serge Lazareff. Like Bizeau, she helped launch Derains Gharavi & Lazareff in 2009 before following Lazareff to his next firm, Lazareff Le Bars.
In 2012, Duclercq joined Parisian disputes boutique Altana. A spokesperson said the firm wishes her success in her new venture.
Duclercq has particular experience in arbitrations relating to engineering and construction contracts – particularly under FIDIC Rules – and acted in an ICC dispute between Lebanese and UAE companies over a pipeline project.
Along with Bizeau, she is listed as a future leader by Who’s Who Legal.
Pujos’s practice focuses more on litigation, but she has still acted in several commercial ICC disputes. These include two cases concerning African states relating to a mining contract termination and an agreement related to the supply of electricity.
Pujos began her career at Linklaters in 2004 and – aside from a three-year spell at Debevoise & Plimpton in Paris and New York – remained there until 2018, when she became a sole practitioner.
Linklaters arbitration co-head Roland Ziadé says he is pleased to see former colleague Pujos join forces with the other Medici co-founders, who he is also acquainted with.
“It’s great to see such a new boutique firm burgeoning in Paris, showing both the dynamism of the French arbitration scene and the increasing prominence of talented women in the arbitration community.”
“I wish all four of them and their new firm Medici the very best!”
https://globalarbitrationreview.com/article/1227802/new-boutique-puts-focus-on-gender-equality
Four female arbitration and litigation specialists have formed a new disputes boutique firm in Paris.
Medici Law, which according to one of the partners opened for business on Monday, was founded by Marie-Laure Bizeau, Valence Borgia, Caroline Duclercq and Delphine Pujos, who will share duties as partners.
All bring extensive experience with major law firms and in international arbitration, and a commitment to pro bono work and supporting social causes.
Borgia comes from K&L Gates, where she practiced for 11 years in litigation and arbitration, rising to counsel. She also had stints at Eversheds Sutherland and was a trainee at Shearman & Sterling.
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Pujos, who had her own firm, practised previously at Linklaters and at Debevoise & Plimpton, while Bizeau comes from arbitration specialist Derains & Gharavi International, where she practiced for 11 years, rising to partner.
Duclercq comes from Altana, where she was a partner for eight years, after also practising at Derains Gharavi.
“We grew up together, professionally, and have wanted for a long time to create our dream firm: one where we could choose our partners, choose how we serve our clients, and bring a flexibility and an agility to arbitration practice,” Borgia said.
Their plans became more concrete toward the end of 2019, well before the COVID-19 crisis emerged, Borgia said.
She believes that Medici’s approach would be particularly well-timed now as companies confront their need for conflict resolution against the backdrop of the global pandemic.
“We can make the process lighter and less cumbersome for companies,” she said, noting that she and Duclercq created a professional group, Wake Up Arbitration, seven years ago to study how the practice could evolve.
The partners propose to donate 10% of their fees, subject to prior client consent, to an endowment fund for organizations that work for equal opportunity and against discrimination and violence.
“In the coming months and years, we will be very busy with the firm and client work, so we will have less time for pro bono,” Borgia said. “The fund is one way we can continue to contribute.”
In France, lawyers have been slowly returning to work as the nation lifts lockdown restrictions. https://www.law.com/international-edition/2020/06/10/disputes-specialists-launch-all-women-paris-boutique/?slreturn=20200511040008
Four women disputes lawyers, all with strong international law experience, have combined forces to set up Paris-based litigation and arbitration boutique Medici Law Firm.
The four partners — Marie-Laure Bizeau, Valence Borgia, Caroline Duclercq and Delphine Pujos — said in a statement they would work within an innovative and flexible structure.
They have also promised to donate 10% of client fees, by prior agreement, to an endowment fund which will promote equality, address gender-based violence and campaign against discrimination.
'We have the will to embody the values of excellence, efficiency, enthusiasm and ethical commitment,' they said, adding that they aimed to turn litigation risk into an advantage.
Bizeau began her career with Lazareff Law Firm — now Lazareff Le Bars — and worked at Derains & Gharavi for more than 11 years, including as a partner from 2018 to 2020.
With more than 17 years of experience in international arbitration, both as counsel and as an arbitrator, she has worked across cases heard in all the major arbitration institutions, including the ICC’s International Court of Arbitration, which is based in Paris, as well as in investment arbitration proceedings.
Duclercq spent eight years at Altana, working as both counsel and as an arbitrator. Her practice includes complex construction and engineering proceedings and she has experience with both common law and civil law disputes.
She is active in the French Arbitration Association, serving on its council, and in the ICC, where she is part of the French delegation.
Borgia is formerly of K&L Gates, where she was a counsel. She is a member of the Paris Bar Council and has also been active in civil litigation associations and in arbitral circles. She has a strong track record conducting pro bono work in the diversity and inclusion arena.
Her practice covers disputes in the energy, transport, aeronautics, media, agri-food, recycling and infrastructure industries and includes Africa-related disputes; Paris is a hub for Francophone dispute resolution for French and African counterparties.
Pujos has more than 15 years’ experience in commercial litigation and international arbitration. She joins the boutique after running her own law practice for two years. Before that she worked at the Paris office of Linklaters as a counsel for nearly ten years, having initially qualified as an M&A lawyer at Debevoise & Plimpton.
Pujos has recently supported the development of mediation initiatives to resolve potential Covid-19 disputes, led by trade association Paris Place de Droit and supported by the Paris Bar, senior corporate counsel network the Cercle Montesquieu and the association of French in-house lawyers AFJE, all under the aegis of the Paris Commercial Court.
COVID-19: Delphine Pujos is one of the third-party conciliators of the business support platform launched within the framework of Paris Place de Droit by the Paris Bar, the Cercle Montesquieu and the AFJE under the aegis of the Paris Commercial Court. It is a confidential and rapid mechanism to help companies resolve potentially contentious commercial situations amicably.
Publication - May 2020 - Journal Spécial des Sociétés - Interview with Valencia Borgia, a woman lawyer committed to professional equality.
Conference - April 2020 - Caroline Duclercq spoke at the conference organized by the Swiss Chinese Law Association on "Third Party Funding in Arbitration" with a particular focus on the consequences of COVID-19 and the financing of future litigation/arbitration.
