Ximena Herrera-Bernal is a founding partner of Gaillard Banifatemi Shelbaya Disputes. She is in charge of the firm’s Latin American practice and its London office.
As an introduction, let’s have a look at your roots…
Ximena Herrera-Bernal: I was born in Colombia. For the most part, I grew up there, my childhood was there, I studied law there (first degree).
In my family, my two grandfathers were lawyers, although I only met one of them. The one I met was an extraordinarily strong presence when I was a child. He hugely influenced me, even though I did not really have adult conversations with him. He was a strong figure, a diplomat, and a senator too. He studied criminal law in Italy…
I remember, as a child, all the stories about justice and what he did that really attracted me. I guess that is a part of why I like humanities.
At the same time, my father was an architect, and my mother and grandmother art historians. Plus, I loved painting. So, both things were there – art and law. And for me, the tension between both interests has been hard!
Why did you choose to embrace law?
I guess it was more of a rational decision. Following the path of being a painter could be risky…. I decided to study law pretty much when I was in high school.
What about your crush for arbitration?
Hum, that is a longer story! When I studied law in Colombia – around 1992- it was very, very rare to have a course in arbitration. But the professor I had in commercial law was also an arbitration practitioner and, because of his passion for it, he gave us a module of arbitration and I really liked it.
Whilst studying law, I also worked. However, not in arbitration, I worked at a law firm, and afterwards at the Constitutional Court in Colombia, which was created in 1991. When I got the opportunity to work at the Court, I did not think twice as it was a very interesting transition time for the country. One could really see how the new Constitution and the Court empowered people to demand respect for their fundamental rights, I loved it.
What did you do exactly?
There were two main types of work: on the one hand, the review of constitutionality of the law and the treaties – treaties included those on the promotion of investments, as well as environmental issues, for example. On the other hand, the selection and review of cases regarding fundamental rights. I remember working on very new cases like a change of sex (in a very catholic country), sexual education, protection for girls who were expelled from school because they were pregnant as teenagers… But also pensions for old people, indigenous rights, including a case of a community, which had a story of collective suicide, and which was attempting to stop oil exploitation in their ancestral lands. It was fantastic to participate in this process of advancing a newly minted Constitution. I stayed there three years, whilst I was finishing law school.
As you were very involved and happy, why did you leave?
First, I became a bit more skeptical of – or more realistic about – what the court could and could not do. When I was at the Court, a matter it had to deal with related to the impeachment process against the then-President of Colombia, who had received money from The Cali Cartel for his campaign. One of the big challenges was whether, in order to commence proceedings against the President, it would be a prerequisite to have a decision finding those who had provided the funds criminally liable. I was not very convinced by the Court’s Decision.
Second, I wanted to do pursue a Master’s program at Harvard Law School. When I was doing my LLM at Harvard, I focused on Constitutional Law and Public International Law.
Whilst abroad, I started exploring possibilities of having an experience abroad. I got a position at a law firm in New York doing capital markets. Capital markets was not my cup of tea, but it allowed me to pay my loans for the LLM which were not covered by the scholarship, even if I was not enthusiastic by the subject. I found it very dry. That said, I got to also work on project finance in the context of a series of privatizations in Latin America, so I got to see first-hand the shift towards privatization and to travel quite a bit.
It was during this work that my lucky day arrived: at one point, the litigation team had an arbitration with a big Mexican conglomerate regarding the exercise of a purchase option and they needed a Spanish speaker. I implored my boss to let me work on it. He let me do it, making it clear that this would mean having double the workload, the corporate and the contentious work. I said: “Yes, I will. I want to do this.” And I was right: It was everything I ever thought of law!
So, it was the first contact with arbitration, wasn’t it hard?
It was indeed my first practical contact with arbitration. It was super interesting and of course I was learning it from scratch but it was very rewarding.
I decided then that I wanted to gear my practice towards arbitration, but that was difficult at that juncture: in the late 1990s, those doing arbitration were mostly either British or French practitioners or people doing domestic arbitration in Latin America. So, I started asking for advice to see how I could get a foot into arbitration.
It was not until a bit later, with the boom of investment arbitration following Argentina’s economic crisis in 2001, that more opportunities for someone with my background became available. At the time, there were some opportunities but not the ones you see today. Nowadays everyone wants to do arbitration.
Who did you ask advice from?
I asked Yas Banifatemi. She told me: “If you want to build credibility, start at the ICC”. So, I went there and worked with the Latin American team. Then the possibility of an internship opened up at Shearman & Sterling, while I was told that I could also stay on at the ICC. I asked another mentor of mine, Judge Brower: “What should I do?” And I will always remember his answer: “Practice! Go for the internship”. So, I went on to intern in Emmanuel Gaillard’s team, and was offered a permanent position after that.
A real career change…
Yes, I often say that I had to start all over again after being an associate in New York, getting paid as an associate, etc. … But sometimes, you really must take a step back to move forward! To do something you really want.
Do you remember your first arbitration case there?
Absolutely, it was a sports case about a sponsorship agreement with a Grand Prix motorcycle rider. I remember it was quite colorful (all the photographs of the motoGP competitions and paddock girls). There was an issue with the terms of the sponsorship agreement. I was on the side of the sponsor company. It was a lot of fun. It was my very first hearing. We had Gabrielle Kaufmann-Kohler as President. At that time, she was one of the very few women arbitrators. She was fantastic! Her clarity of thinking, how prepared she was at the hearing, how she managed all the proceedings…
They looked very complementary. What were the differences between them?
I knew Yas from before, at Harvard. She did her LLM while finishing her PHD dissertation… Her ability to see the details is unbelievable, she has a very structured way of thinking, a capacity of work that I have never seen in anybody else, it’s beyond belief. Her discipline: discipline in the way she thinks and in the way she works too. She goes every single step that needs to be taken, dissects all the thoughts and the process. I have seen people trying to be detailed, but sometimes there are steps that are not necessary. There is no redundancy in what Yas does, there is a reason in every single step.
As to Emmanuel, he had one thing I have seen in very few people, and that was his ability to think in abstract terms and immediately explain a subject – even extremely complex ones – in very simple terms; he also had the ability to translate, capture, what other people were thinking even before they would articulate it. I keep this image of him looking at one of my colleagues. She was speaking and everybody was trying to understand her train of thought… and he just said: “Let me translate, Rachel, for you all”. He could hear the person, really get what the person was thinking and explain it to others. He could really see when people had something valuable to say. For him, it was never an accident if a person was working for him. He was always trying to teach us, to make us go the extra mile. When pleading before a tribunal, his way of thinking was so clear; when he was talking, one could almost see his arguments graphically. It was unbelievable!
Between these two types of characters where are you? (I know it is difficult to answer)
Oh! This is hard. I would say, I am more in the big picture. I can think about things from different places. I think that I have the capacity to connect the dots. I will jump from one idea to another and for me the connection is clear. I definitely do not have the degree of detail that Yas has, but I know that I have a sense of nuance.
Is it something valuable in arbitration?
One can have big brush ideas and that is fine, but it is essential to be able to see when there are few things missing in an argument and to be more subtle. It does not necessarily mean that one is going to explain it, put in a memorial, or plead it, but it is important to know that missing a nuance could leave you exposed and could help or break your argument.
Your internship finished in 2005, you stayed at Shearman & Sterling and left with the team to establish Gaillard Banifatemi Shelbaya Disputes…
Yes! We are heading towards our third-year mark: it is fabulous! I still remember all the discussions leading to it (laughs)
You did not hesitate?
We can say that you’re bold in your career… and were rewarded for your boldness!
(Laughs) I guess so. I feel that in my life, for very different reasons, I have had to reinvent myself several times. Sometimes, it is very hard on the moment, but then when I look back, I tell myself “Ok, I did it”. There may have been anguish, but I managed through. I have lived in different places, moved several times, and have had big personal chances too…
I’ve read several publications you wrote, is it something important for you?
I like academic work and I enjoy it a lot. That is mostly the way I started to work with Emmanuel Gaillard. I regret not having enough time to devote to that. As you progress in your career, time is something you often lack.
What would you write if you had the time?
Oh, there are many things… I would love to look at the constitutional interaction between arbitration and constitutional law in Latin America.
Returning to your first love!
Yes! That’s funny.
Are you still very connected to what happens in Colombia?
Of course… I constantly have my publications and subscriptions to keep an eye on current affairs. I think that in a way – the writer Gabriel Garcia Marquez used to say that – Colombians are more Colombians when they are outside of their country. (I love Latin American Literature)
And we have been representing Colombia in a very complex investment arbitration and I feel very invested. It is obvious that if you have the country context, you have the sensibility, you understand things that others might not, you tend to get a greater connection.
You’re talking about literature. I know arbitration takes a lot of time. What do you do to keep your…
Yes, to find some space in your head.
I cannot sleep without reading something other than law. I do need that switch. It does not matter if it is 2 or 3 in the morning, otherwise I would ruminate all night.
Last question, how come you are based in London?
I have been based in London for the last 10 years. I’m in charge of the London office. We have a New York office as well, and have recently opened offices in Abu Dhabi and Cairo. The international nature of our firm is a very important part of its DNA. Emmanuel always insisted on this, not wishing to establish a boutique, but a truly international firm. This is why Paris, London and New York were part of the firm’s structure from the outset, and we are continuing our expansion.
Interview by Lisa Vignoli, journalist