Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. With that, let's get started.

Gautam: Hello everyone and welcome back to our Arbitral Insights podcast series, and thank you for joining us. I am delighted to have with us as our guest today,  Ben Malek. Uh Hello, Ben.

Ben: Hi Gautam, thank you for having me.

Gautam: It's great to have you with us. Now, I'm gonna introduce Ben, but I'm gonna preface this by saying I love to see new arbitrator talent emerge and I'm unashamed about that. I love to see it. And Ben epitomizes this new number of arbitrators that I just love to see. Ben has got a very interesting background. Uh he's based in New York, but he – I'm gonna share some interesting stuff about him with you all. He's obviously a practitioner of arbitration. He's also an arbitrator and he has great experience of being in private practice and also working for institutions who deal with arbitration. And we'll come to that in the course of our discussion. He also speaks an incredible number of languages, which would, which certainly is something worth noting. So, so obviously, not only apart from English, but he also speaks fluent German, Romanian, Spanish and French, and he can also turn his hand very ably to Italian, Hebrew, Mandarin and Korean. And I'm just in awe of that, Ben.

But so obviously, you can see we're talking uh to, to someone who's truly international. We'll talk a little bit about what you do Ben in the course of this podcast but for our listeners, Ben is with T.H.E Chambers in New York. And as I said, prior to his current role, he has worked in private practice at some major law firms and also with arbitral institutions. So, on that note, a huge welcome again to you, Ben and I'm much looking forward to our discussion. So let me ask you the first thing a little bit about your background because you, you do have a very interesting background just based purely on your geographic origins, your languages and how the world has just seen so much of you. But could you just tell us a little bit about your background and how you found the law and arbitration or conversely how law and arbitration found you.

Ben: Thank you so much Gautam for inviting me such an honor to be on your podcast. I always look forward to the new episodes you have so it's uh it's truly a pleasure. Thank you. So I grew up in Germany. I was born and raised in Germany to Romanian parents and my maternal grandparents wanted to talk German to us because that's what first generation immigrants do. However, they spoke a very broken German because they're German just wasn't that good. So my mother had the idea of them talking to me in Romanian, which was their maternal language. And this way, I would have two languages once I hit kindergarten, which is exactly what happened. I talked Romanian at home until I started kindergarten, which is where I learned German.

So that was the beginning of my duality, I guess. Later on my parents decided that an international school would be best for my brother and I, I have a twin brother by the way. So we went to an international school where languages was really emphasized. I was taught everything in English. English was my maternal language, German was my first foreign language. And that's when I started to really learn my other languages. French became my second foreign language, Spanish became my third foreign language. So by the time I graduated high school I was fluent in five languages. So that was uh extremely helpful at that time, and, uh, that's when I knew that I needed to do something with languages. Unfortunately, and just to give a little more background, I decided to pursue dentistry. I'm not sure if you knew that Gautam. 

Gautam: No, I didn't know this. You're a man of many, many hidden talents. Ben, I had no idea. I I know now.

Ben: So I went to dental school and because, because I grew up in, in Germany to Romanian parents, I always wanted to, to understand my origins and see where I'm from. So I went and studied uh dentistry in Romania. So while in Romania, I graduated dentistry, I came back to Germany and actually started practicing dentistry. At which point I realized that that might really not be the best career. And I'll explain why.

I loved the attention to detail. I loved the artistry of it. But the one thing that I really couldn't deal with was talking to the walls. And what do we, what do I mean by that? When patients sit in the chair before you and you talk and their mouth is open, they cannot respond. And I never realized how much that would impact me psychologically. I felt like I was in isolation, I was talking to them and I talked to them in so many languages, but nothing was coming back. So at that point, I realized with my first year of practice that even though I like what I do, I don't think I could do that for the rest of my life. So I decided to go back and study law. And during my last year of law school, I got a job at BDO in Romania. And because of my languages, I was on-boarded on an arbitration which was held in English with a German party and a French party. And because they had somebody that spoke German and French, they decided to save some costs and have me translate. So that was my introduction to arbitration. And I thought it was wonderful. It was absolutely delightful, especially in a country where the judicial system is sometimes questionable in the sense that you may win for your clients, but you win such a small insignificant amount that you can't really consider it to be a win. I realized that arbitration is a true fairness out there and it is accessible.

So it was that moment during that arbitration that I realized and decided to pursue a master's in arbitration, which I ultimately did. I went to the University of Miami where I pursued my LLM. I had the privilege to study under Jan Paulsson, Marike Paulsson, Carolyn Lamm, Jonathan Hamilton. And I really did have the privilege to study under Martin Hunter who has passed away just a few years ago. So it was, it was an amazing masters and that really gave me the basis to start my career in arbitration.

Gautam: Well, now that's an incredible journey and a truly uh a diverse background, a truly a diverse professional background you've had and you know, thank you for sharing those great thoughts. Now figures while you're in international arbitration, because you truly are international Ben, in the truest sense of the word.

Now you've mentioned some amazing teachers that you had in the law who are truly not just first class, they're world class in terms of names. But um I'm most interested to hear from our guests as to who they would say have been their biggest mentors and inspirations in their career. So if you were to look at your legal career, and it's not often that I do a podcast with someone who's a qualified dentist as well as a qualified lawyer. But there's always a first for these things. But in your career as a lawyer, I wonder if you could share with us some of those names who have been your great mentors and inspirations.

Ben: Absolutely. I think all of us owe our entry especially in arbitration to someone as the saying goes, we we need somebody to open the door, we gotta walk through it ourselves, but somebody is always there to open the door. For me I really had, John Fellas was an amazing mentor. I got to know John during my masters and we've kept in touch ever since. What struck me about John was his humbleness and his absolutely striking kindness. I mean, I was a mere student who just got my feet wet and he always made the time, always respected my time, always trying to see how and where he can help me or brainstorm what to do or where to do. It was a true mentorship. And I value that, especially after so many years, I, I wouldn't be here without him.

One more mentor that I can think of is Crenguța Leaua. She's um with LDDP in Romania. Over the years, we've got to know each other. She's just such an amazing practitioner who has truly shown me what there is to do and has helped me or help me guide my way into arbitration. So uh without those two, I wouldn't be where I am. But I would also say I really, I consider that every, every person I worked for in the past, every boss I had potentially got me into where I am.

So that being said when I worked at the American Arbitration Association or the ICDR to be more, more precise, Tom Ventrone was an amazing mentor. I mean, I learned so much from that and it was interesting because I only got to know him once I was at the ICDR. I did, I quite frankly and uh I don't know if I should say this out loud, but I've never heard of him before. Um However, when I was there, I realized that I don't think the ICDR would be where it is without Tom Ventrone and his team. So that was absolutely outstanding.

Gautam: Thank you very much. And you know, some really great names there, Ben that you've given, who've been your real guiding lights in your career so far and you, you're very fortunate to have had all of those people. Now, you've alluded to it in your answer that you just gave and I mentioned it in the introduction that you've worked at major law firms and you've worked for arbitral institutions. I wonder if you could share with us a few things that you've learned by having had the benefit of working on both sides of the fence, so to speak.

Ben: I would say at first when I started off at institutions and in all disclosure, I didn't start my career at the American Arbitration Association, I actually started at CPR Institute in New York. I filled in this case manager after which shortly after I got the opportunity at the ICDR. The one thing I learned was really what an impact an institution can make and what a driving force it is in arbitration. Of course, I've learned and I've been part of adhoc arbitrations and that's when you really start to appreciate institutions and what they can do. So I really do value institutions for what they are. I believe the work is truly in vain. And during my time at the ICDR, I mean, it was high volume, in the sense that we administered many cases. And when COVID hit, it felt like those cases doubled even though they didn't. It was just that the traffic of email because nobody had any, any place to be. There was no traveling, there were no dinners, there were no vacations. Everybody was on their email all the time. But it was uh truly valuable.

You learn how to manage your time, you learn how to manage other people's time and you learn how to truly value time and deadlines and how to set them fairly. During my time at the American Arbitration Association, I was truly privileged to be part of what they call IARC which on the international part is the International Administrative Review Committee. Where different challenges are being discussed and decided upon. So having been part of that and having seen many cases come in and out and the decisions thereof have really helped me to make better decisions as counsel. Once I, I left the institution.

Gautam: I think that amazing kaleidoscope of experience that you had in private practice and with institutions brings us nicely to the next question I wanted to ask you. And this and again, I'll preface it with, again saying how much I love to see new arbitrator talent coming through. I love to see it because we need new talent, fresh blood coming in and you are certainly one of that group. And so I was mentioning that you are with T.H.E Chambers in New York. And I'd love you to tell us a little bit about the work of T.H.E Chambers where you are an arbitrator and including, first of all, if you wouldn't mind what T.H.E stands for a Ben.

Ben: Thank you, Gautam. Absolutely. So, as a young arbitrator, I think it's interesting to see that there are not many out there and if they are, it is always combined with some sort of additional workload, whether that is tribunal secretary or they still work as an associate somewhere else or consultant. It, it it is self explanatory why that happens. Uh But I am privileged, I believe to be part of a small group of young arbitrators. And I, I think it's, it's highly important to understand that even young arbitrators do have a specific know-how that we would not have had 20-25 years ago whenever I'm approached or I'm asked about my expertise, I do unfortunately get the answer oftentimes that people didn't realize that a young practitioner could have so much experience or could have the pertinent know-how. And I think that's where arbitration really expanded and advanced in the last decade or two.

We have master degrees at, at so many universities throughout the world. We have so many courses and we have so many practitioners willing to talk and mentor people that it is truly possible at a younger age to become an arbitrator.

Gautam: I completely agree and if I'm not mistaken, the, you know, the, T.H.E Chambers stands for Tribunals, Hearings and Enforcement, is that correct Ben?

Ben: That is correct. Absolutely. Yes, thank you. So, when I started off sitting as an arbitrator, I was approached and, and I happily work with Arbitra International out of London as a transitional member as they call it. And when thinking about it, I had two options. I could either say this is Benjamin Malek arbitration or I could start something bigger. And that was my goal.

So when starting T.H.E Chambers, which as you said, stands for Tribal Hearings and Enforcements, the big challenge was what I call it. And despite the fact that T.H.E, it, it looks very nice together as ‘the’, um it does stand for tribunal hearings and enforcements. And that is because I believe that those are the core points that any practitioner will always look for. Uh you need to have a tribunal for an arbitration, you need to have a hearing, any sort of hearing un unless it's a paper arbitration. Um And then the, either the arbitrator or the parties waive the hearing and you gotta make sure that any award is enforceable. So from my council of work that I started off with at the beginning of T.H.E Chambers, that was my expertise, the enforcement part of it. Uh that was also one of the most important aspects that I dealt with while at the ICDR when a case comes in that was the first question. How does the case look and will the award be enforceable? So that is one thing that I definitely learned at the institutions and that I carried with me to always look at the arbitration from the end rather than from the beginning, which is the enforcement stage. T.H.E Chambers -  that's what it stands for. Currently it is set up to on board more younger arbitrators worldwide because of COVID and then changes in COVID, we haven't gotten there yet but I hope we'll get there very soon.

Gautam: I've got no doubt you will. And you know, and as the saying goes, if anyone's good enough, they're old enough. And there's no doubt that you and the team bring a lot of great energy and insight into arbitration and it's certainly not something that should be homogenous. So it's fantastic to know that you can bring all your talents to bear. I want to turn next to another aspect of what you do because I know that you are a member of the Silicon Valley Arbitration and Mediation Center and particularly its Artificial Intelligence task force. Now, one of the things that all of us will be very well aware of is that artificial intelligence, AI, is an incredibly happening concept. It's developing and it'll develop more and more and it has its role and will have its role in arbitration. I know that you've been part of the team that's been looking at guidelines for the use of artificial intelligence in international arbitration. And I wonder if you could just share some of your thoughts as to what the potential usage of artificial intelligence might be in international arbitration and some of the risks and issues that we should be aware of.

Ben: Yes, thank you. So I have been a part of the Silicon Valley Arbitration Mediation Center for quite some time and um when the New York case versus Avianca came out where the claimants council used ChatGPT to come up with cases and, and I use that word deliberately, ‘come up’ with cases to use against Avianca. It turned out that all of those were in fact made up by ChatGPT as uh what we would call hallucinations. The judge dismissed the case and uh actually sanctioned the attorneys. To that point, I realized that it is only a matter of time until this issue flows into arbitration, especially arbitration. We work in so many jurisdictions with so many different parties.

And specifically, since COVID, most arbitrations have been online, some have stayed online, some still have a hearing component in person, but most of it is online. And the big question was, do we need guidelines for the use of artificial intelligence in arbitration? So I had discussed that with the leadership at the Silicon Valley Arbitration Mediation Center and they gave me carte blanche to see what we can come up with so I was privileged to have a team of experts help me draft the guidelines for the use of  AI in arbitration. My team was composed of Elizabeth Chan in Hong Kong, Orlando Cabrera in Mexico, Sofia Klot in New York, Dmitri Evseev in London, Marta Garcia Bel, which now is in New York, Soham Panchamiya and Duncan Pickard in New York. I was truly blessed, I would say to have these colleagues. It became a true adventure that we all went on when we started discovering what AI could potentially do and what could potentially be prevented. So we took around nine months to draft guidelines. We had no timeline, but we did come up with what I would say good guidelines or a good basis of guidelines in October, we have put it out for the public to comment on. Uh the commenting period is still open until December and institutions can comment until February. And the goal is not to come up with guidelines that people can use, but to get a full consensus of the arbitration community on how they would like to use these guidelines and what they believe is relevant. If something is not relevant, then there's no reason for us to have it in there. So that was the whole idea behind it.

The other aspect we were looking at was when it came to cybersecurity, each institution came up with their own guidelines and quite frankly, they use different words, but they're saying the same thing. And we are hoping to avoid having several guidelines on AI and to comprise it all into one. I think it's gonna be a very difficult task. I'm not sure we will succeed, but we are giving all institutions the opportunity to give their input or it submits their commentary to the guidelines so that every practitioner could look into the commentary for the respective institution when the case goes to arbitration. We were looking at several aspects regarding the use of artificial intelligence in arbitration.

Two main aspects are disclosure and confidentiality. With regards to disclosure, we actually have an open option for the community to vote on. And that is whether a two prong test should be used to decide whether a party or the arbitrator should disclose the use of artificial intelligence or whether it should always be up to the parties to decide or to as the tribunal for opposing party to disclose the use of artificial intelligence. We weren't sure internally, we debated heavily and we came to the conclusion to leave that question up for the public to decide on. Um it did come back or as of now, the results are interesting, which is that in Europe, there is a more libertarian approach. Whereas uh the US and some common law jurisdictions voted for a two prong test, which I believe to be quite interesting, uh quite frankly. Um if this continues to be open ended, we might leave it up to the parties to decide which option they would ever put in. But ultimately, the goal is to draw awareness of the use of AI to let parties and arbitrators as well as council understand that artificial intelligence is not open ended. That if it's used outside a closed circuit information can be leaked or can be disclosed one way or another and to just draw attention to the fact that A I can only be used to disclose information, but also to create other sorts of the information that would otherwise not be there. Whether that is good or bad will be up to the parties to decide, but it is important to understand what AI can do and what the consequences are.

Gautam: I agree with you and it's something that's gonna develop and develop. There's no doubt about that and we've not seen the last of it. I mean, it's gonna be happening for sure. And we just have to see what does transpire, but look, thank you for your great work on everything you're doing. You're not just, you know, doing arbitrations, you're doing thought leadership, you're driving all of these things and it's really great. And uh I'm just, you know, and I look forward to talking to you more about these things as these things progress. Now with these podcasts, we, we always end our podcast with a little bit of lighthearted conversation because I think our listeners will have got a really good handle on your incredible talent in the course of this podcast, your thoughtfulness and your experience. What I want them to also get a feel of is some of the more fun side of things.

Now, I know Ben that you are a very proud daddy to a couple of daughters, one of whom is really a newborn. And uh, and I've, and I'm just so ecstatic for you and Rebeca on your two daughters. But let me ask you this when you do have some spare time from not being a, a very busy daddy as well as a very busy arbitrator. What sort of music do you particularly enjoy listening to? Have you got any favorite bands or groups or singers or even a favorite album that you love to play?

Ben: Regarding music that's an interesting topic. Before I went on my dentistry career I actually worked in music management.

Gautam: you are so multitalented. It's unbelievable. Go on. Sorry. I just could not resist saying that.

Ben: Yeah. No, thank you. It's uh I, I just like life. I like life. Life is important. It's what drives us. I will say this and, and you know, thank you for the question. But we all live to work, but we also work to primarily live. And I think it's really important to, to, to know that I always believe that one of the most important things in life is to live and to know how to live. So, uh I did get into music management very early in my life. We were host to several big names, but to answer your question, my favorite music, as I always said is good music. I especially nowadays where the charts are filled with explicit lyrics. I actually like to go back to the Beatles. The Beatles are one of the foundations I believe of modern music. Now, given the fact that a new song was actually just released with the help of AI, I think that it's, it's worth to go back and, um, and really understand the changes that as Sir Paul McCartney, um and his colleagues have made. Yeah, I would definitely call The Beatles my favorite music.

Gautam: Oh, fantastic. Well, it's, you know, that's a great choice. And, uh, you know, again, as a first, I've never done a podcast with someone who worked in music management, then who, who became a dentist and then became a lawyer and who can speak about 10 languages. So this is a complete first for me. So let me just ask you one last question in this podcast. So, you know, you are a very international person and we ascertain that just from speaking to you in the course of this podcast and you've no doubt traveled very widely because you've worked around the world in many places. Is there one place apart from where you grew up, okay, so excluding that, is there one place in the world - and excluding New York where you live - ok, Is there one place that you just love traveling to?

Ben: Oh. That's a difficult question. I would have to say, I've always enjoyed traveling to London. My brother is actually a physicist and he did his PhD in Cambridge. I thought those were the most fun trips I've ever had. To fly to London Cambridge is, is amazing. Uh Whoever hasn't been uh it is really missing out. London is just stunning. I mean, the amount of history and just the culture and the multiculture you have. It's, it's just, it's great. Um I guess uh deep down I am a European so London is always there. Paris is absolutely yeah, romantic. I mean, I am married with two kids so Paris is always, it is always a good idea.

Gautam: Yes.

Ben: Yeah. The only thing I would add is I love, I would love to see more of the world. I do want to travel and see places. I I've never been, I haven't been to Australia yet, but in general, I would love to go see, I hope to go to Hong Kong maybe during ICA, maybe not, but just to see Hong Kong and see uh see more than I have seen yet.

Gautam: Fantastic. Well, look, Ben. Thank you. It's been an absolute delight to speak to you in this podcast. Thank you for being such a superb guest and for sharing all of your stories and your background, your thoughts. And uh I look forward to seeing you very soon. You know, I hope you'll because we're recording this podcast on a Friday. So I hope that you will have a great weekend and I look forward to seeing you in person soon. Thank you.

Ben: Thank you so much Gautam, Likewise. And if I may just end on one note, I do wanna thank my wife. I don't think I would be the person I am without her. And she inspires me to be a better person every day.

Gautam: You know that I, I think that's so fitting Ben. And I'm gonna say this in response, I'm going to say two quick things in response to that. One, you're absolutely correct because I have the great honor and privilege of knowing Rebeca. And I know that she's a wonderful, wonderful lady and you are indeed very lucky to have her. And I also will say the second thing I will say is that many years ago, a judge got sworn in as a Supreme court judge here and one of the former Supreme court judges who was giving a speech when he became a judge said that behind every successful man, there's a surprised woman and Rebeca shouldn't be surprised at how successful you've been. But you know, you are very fortunate to have her. So thank you for mentioning her.

Ben: Thank you. And thank you for having me, Gautam. It was an absolute pleasure looking forward to meeting you in person.

Gautam: Looking forward to that.

Outro: Arbitral Insights is a Reed Smith production. Our producer is Ali McCardell. For more information about Reed Smith's Global International Arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search arbitration pricing calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on Spotify, Apple, Google Play, Stitcher, reedsmith.com and our social media accounts at Reed Smith LLP on LinkedIn, Facebook and Twitter.

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