Arianna Rosato, associate at Gaillard Banifatemi Shelbaya Disputes
You completed your first law degree in Italy, how did you become an international arbitration lawyer practicing in Paris?
It was a series of events. When I started studying law at the University of Turin, my hometown, I did not even know what international arbitration was. And I probably would have graduated without knowing much about it, if it were not for the international exchange programs I participated in during my studies. Nowadays, international arbitration is becoming increasingly popular in Italian law schools, but back in my days most schools did not even have a dedicated course in their curricula, and the University of Turin was no different. What my University had, however, was a rich offer of international exchange programs and partnerships with foreign universities. Since my first year, while I was completing the foundational courses of Italian law, I have felt very curious to learn how legal reasoning had developed in other countries, how different legal systems answered similar questions, and how those systems interact in the international arena. Comparative and international law were subjects that truly fascinated me. I therefore decided to apply for two of the international programs offered by my University: a semester at the Centre for Transnational Legal Studies in London, which is a partnership created by some 14 law schools around the world, including Georgetown and King’s College, and a semester at Sciences Po’s Master in Economic Law. It was during those exchanges that I gained exposure to international arbitration.
And so, what was the following step?
While I was studying at Sciences Po, I decided to apply for an internship with the international arbitration practice of Shearman & Sterling. Back then, I was in my third year of law school, out of five. I barely had any work experience, apart from writing a few articles as a freelance writer for a local newspaper and having volunteered at the human rights office of a South African NGO over the summer. So I did not quite fit the typical profile of an intern candidate at a top-tier arbitration practice. But I was eager to learn and Yas decided to give me a chance.
So, when you arrived at Shearman & Sterling in 2013: the crush happened!
I admit it was a phenomenal experience. The work, the team, the atmosphere. I ended up working at Shearman for six months and when I finally went back to Italy, to complete my degree, I knew I wanted to come back.
You also spent a year in New York City, right?
Yes, after graduating from the University of Turin, I decided to pursue an LL.M. at Columbia Law School and sit the New York bar exam. I wanted to gain a deeper understanding of US common law, which I felt would be an important complementary tool in my arbitration toolbox. I was also very curious to learn how arbitration is taught in the US, where the approach in many aspects differs from the French approach – and from the Gaillard school, which was effectively the school I was trained in. Columbia was the perfect place to do that, having a rich curriculum of arbitration-related courses which are taught by leading academics of US arbitration law.
Why did you want to take the bar in New York, especially?
For one, international arbitration is a “hybrid” procedure that brings together elements of civil and common law. Being familiar with both systems is therefore very helpful. More fundamentally, we, as arbitration lawyers, are often confronted with legal systems that are very different from the systems we were trained in, and yet we need to be able to understand those legal systems intimately enough to argue our case in a convincing way and also make it understandable for an international tribunal that may be unfamiliar with those legal systems. In this context, maintaining a flexible approach to legal issues is key and having been trained in both civil and common law is, in my view, the most effective way to ensure that flexibility.
Then you decide to come back to Paris?
Yes, after completing my LL.M. and sitting the NY bar exam, I went back to Shearman (and followed the founding team at Gaillard Banifatemi Shelbaya Disputes).
Is there a law tradition in your family?
Not at all.
Do you know where this attraction comes from? To make you become a lawyer…
I can think of a few constants of my youth that probably played a role in leading me toward this profession. First, while there was no lawyer in my family, everyone shared an interest in humanities: classics, literature, philosophy, history, music, visual arts… It was a family of nerds basically. I myself had studied ancient Greek, Latin, philosophy, and other “decadent” subjects when I was in high school. I grew up in a household where everybody enjoyed discussing these topics, and my brother and I were encouraged to express our opinions and debate since we were young. This was a good exercise for my intellectual reasoning and it taught me the importance of expressing my views in a clear and compelling manner. With hindsight, that is probably what triggered my love for debating and always finding the winning argument. That is how I realized, not without some frustration, that clear and powerful delivery is as important as a great argument. Another constant of my youth was the background of a family enterprise and its international business network. That certainly lit my curiosity toward other cultures and international exchanges. It also gave me, I believe, a more pragmatic vision on things and a greater awareness of how a business mindset works, which is now proving helpful in my work as a lawyer.
Do you remember the first case you had, the one that became “yours”?
The first case in which I was counsel of record was an ICSID arbitration in which we represented Croatia against a Croatian meat processing group and its Austrian owner, Georg Gavrilovic. The company, which is currently one of the most successful meat processing groups in central Europe, had been nationalized by Communist Yugoslavia and then purchased from bankruptcy by Mr. Gavrilovic in 1991. The investor was claiming that his company had been unlawfully expropriated of about 450 commercial properties. Croatia had raised a number of jurisdictional objections, including that the investment had been tainted by corruption due to significant irregularities in the company’s bankruptcy proceedings and certain actions undertaken by Mr. Gavrilovic that circumvented European Union and United Nations embargoes to stop the acquisition of arms for use in the Yugoslavian wars. The merits of the case revolved around the transition of property rights from a socialist system to a market economy. To put it in lay terms, Communist Yugoslavia had abolished the concept of private ownership and replaced it with social ownership. People and companies, however, still needed to be able to use, maintain and dispose of land, factories, buildings, houses, etc. The Communist State had therefore created a series of quasi-ownership rights granting individuals and companies the right of use, management and disposal of properties and assets, while those remained owned by the Yugoslav society as a whole. When Croatia transitioned to a market economy and private ownership was reintroduced in its legal system, all those quasi-ownership rights had to be replaced by private ownership. That was a very complex operation. Imagine having to rewrite every single entry of a country’s land registry and cadaster, and to do so in the aftermath of an armed conflict. I also found fascinating, from a technical point of view, to learn how the State went about this problem and the legislative and regulatory tools it developed to face this very peculiar legal issue. Long story short, Croatia issued a number of laws aiming at ensuring that every piece of property in the land registry could be attributed to an owner, by way of identifying the successors of those individuals or entities that previously held a right of use, management and disposal, or by way of creating a rebuttable presumption of State ownership which could be at any time displaced by private parties showing good title to the property. It was in the wrinkles of the application of these laws that Mr. Gavrilovic had claimed that Croatia had unlawfully registered in its own name properties that belonged to the company he purchased from bankruptcy.
Was it a case where you won?
Yes. The vast majority of the investor’s claims was rejected, and as far as damages go, he was awarded slightly over 3 million euros where he had claimed about 200 million euros. He was also ordered to pay part of the costs of the arbitration and his own legal fees, which resulted in a net loss on his side. We regretted that the Tribunal was timid on the corruption question, notwithstanding numerous red flags in the investor’s conduct and the manner in which he had acquired his investment. Overall, however, the outcome was extremely positive.
Do you think a good case is necessarily a case you won? I have met lawyers who told me that a good case for them was a case where they learnt a lot even if they lost.
I would not put it in terms of winning or losing. I think that what is paramount is your client’s expectations and whether you manage to secure a result that meets those expectations. Our job starts well before pleading. We first analyze our client’s case and help them develop a clearer view of the case’s strengths and weaknesses, the options available to them and the chances of success. Ensuring that your client has an informed view of their own case is an essential step that then enables you to work together with them in defining a strategy and setting goals. Sometimes your client’s main goal may be having their claim recognized as a matter of principle rather than in terms of monetary compensation, other times your client’s main goal might be limiting damages as much as possible. Different goals require different strategies, and whether you manage to put those strategies in place effectively and achieve the result sought by your client is, in my view, what makes a case a good case. Then, of course, I very much enjoy a clean victory, but what litigator doesn’t?
You’ve worked on investment and commercial cases, would you say one is your specialty?
Over the years, I have been able to work extensively on both commercial and investment arbitrations. I wouldn’t say my specialty is one over the other, and I am actually not sure “specializing” in investment or commercial is something I see positively or intend to pursue. As I mentioned, I believe that flexibility of reasoning, creativity and innovation are very precious skills in this field of practice. Those skills are fueled by exposure to a wide variety of cases, industries, applicable law and factual patters, and can be limited if one reduces his/her practice to a single “type” of case. I also think that we sometimes erroneously equate “specializing” and developing an expertise. One can become an expert in, say, energy arbitration, without limiting his/her practice to energy arbitration. What counts is your deep understanding of the subject and your experience, not the ratio of the energy arbitration cases you work on to everything else.
Would you say you are more interested in representing States?
On this, I fully embrace our team’s policy, which is to equally represent States and investors. The fact of arguing on both sides enables you to better anticipate and weigh the arguments made on the other side. It also gives you a more “objective” vision of the case, which is helpful to understand how the tribunal will react to a given argument. Finally, arguing both sides helps you to keep your strategic thinking creative and innovative.
You talk about creativity, and you are not the first one at GBS. One of your colleagues told me that “At GBS you will never be blamed for an original position”. Is this a feeling you also share?
Yes, absolutely. And I would add that team members are encouraged to express their views and participate actively in the team’s brainstorming from the very beginning. There is no formalistic approach to seniority when it comes to sharing ideas and proposing a creative solution, the only thing that matters is how good your idea is. I had actually learnt that on my very first team meeting with Emmanuel, which I will never forget. I had just joined the firm and I was the most junior person in a large team. We were meeting to discuss the pleading strategy for an upcoming hearing. After seeking the team’s views on a delicate point we had to address, Emmanuel turned to me and asked what I thought. A moment of hesitation on my end was enough for him to add “it’s not because you are a junior that you are exonerated from speaking”. Ensuring that junior team members are proactively engaged in strategy discussions is, in my view, key to develop their potential. That is how we function and that is how, I think, we manage to deliver tailor-made solutions for every case.
I’m sorry because I’m very bored with “women questions” – and you don’t have to provide an answer about your firm – but do you think it’s more difficult for a woman to succeed in arbitration?
I don’t have a problem answering this question in respect to GBS, as we are, in my view, a very good example in arbitration law firms when it comes to gender equality. I think it is often pointed out that we have an equal number of female and male partners and that our head of practice is a woman. That is obviously a great achievement in itself. However, what I find truly remarkable is that none of our female partner made partner “because” they are women. Being a man or a woman, in our firm, is a bit like having straight or curly hair: irrelevant. What matters is the quality of your work, your ideas, your professional skills. I have never felt that my being a woman was ever a reason to treat me differently or that I had to work more than my male colleagues to get recognition. That said, if I look at my work environment more broadly, outside the firm, I would be lying if I said I never experienced some form of gender bias, who hasn’t? Thanks to my work, however, I have also met incredible women who are head partners of international firms, general counsel of major businesses across the globe, and professionals who are at the very top of their field. Overall, I think our society is going in the right direction, but it is a cultural change that is needed, and those changes happen gradually and require many generations to crystallize. Let’s put it this way, I think the goal is to reach a point at which this type of question is not even asked anymore, because it will be simply normal, a non-event, to see a woman representing a big construction company, or chairing a tribunal on a high-stakes case. There is still much to be done to achieve that stage, but I think the change of mentality in the youngest generations is striking and that makes me hopeful for the future.
Let’s imagine, next June, you have a very young female intern. What would you tell her?
I would not have a different advice for a woman or a man. For sure, I would tell them to be curious, thorough and to keep challenging their own knowledge and understanding of things. Because when we sit back and start relying on the knowledge and skills we have acquired, that’s when we start giving answers for granted, forcing new problems to square with old solutions. And that is when we stop growing as professionals and contributing to the development of our practice.
Would you say your job is very time-consuming or is it a myth?
I wouldn’t say it is time-consuming. It is a demanding profession and, in particular, the type of cases we handle, due to their size, complexity and sensitivity, are such that no stone can be left unturned. That requires both thoroughness and efficiency, which are notoriously difficult to balance, but that is a rewarding challenge.
Interview by Lisa Vignoli