[Carrington & White Solicitors, City of London — October 14, 2012, 9:08 AM]
"You've drafted this as though you're in federal district court."
Imogen Hartley QC picked up the response letter with the specific two-finger grip of someone handling something that needs to be assessed before it can be improved, read the top third of it, and set it back down.
"The ICC Rules are not American. They are their own system. Document production in ICC arbitration is governed by the IBA Rules on the Taking of Evidence in International Arbitration. The procedure, the timeline, and the standards of relevance are materially different from your discovery rules. This letter would need to be restructured before filing."
She said it without particular emphasis. The observation had the quality of a doctor reading an x-ray aloud — not unkind, not impressed by the opportunity to correct, simply accurate.
Cross was sitting to my left. I did not look at him.
The conference room was long and paneled in dark wood, with windows running the length of the wall that let in the specific gray light London produces in October — not gloom exactly, just a light that had decided not to overcommit. Three cups of tea that none of us had touched. An empty chair on Imogen's side of the table, which had been announced as her junior but who had apparently been diverted to another matter. The junior's absence had reduced the introductory social choreography to approximately four minutes, after which Imogen had opened the response letter and we were here.
Imogen Hartley QC was around fifty, with the patient authority of a woman who had been the most technically precise person in every room she had entered for three decades and had long since stopped performing the effort. She wore a navy jacket over a gray blouse. No jewelry except a watch. Her hair was cut in a style that said functional before decorative. She had met us at the door with a handshake — firm, brief, exactly as long as a handshake should be, no warmth, no performance.
I had known, from the Hartley QC website and from Cross's description, that she was serious. I had not fully prepared for what "serious" looked like in the specific register of English arbitration practice, which was apparently its own country with its own rules about how things were said.
"You're right," I said.
Imogen looked up.
"The response letter needs to be restructured. I drafted it against American procedure as a starting document — I should have flagged it as a working draft."
"It is flagged as a response letter."
"Which is why I'm telling you now that it functions as a working draft." I picked up my copy. "But before we restructure, I want to address the CFIUS component, because it changes the document production argument in a way that may affect your approach."
She set down her pen. The set-down was not a dismissal. It was the specific gesture of someone who has decided the next sentence may be worth hearing.
I had not prepared a speech. The Library had given me the argument three days ago in the Klein Legal conference room. I had spent the transatlantic flight reading ICC arbitration procedure and spending 8 LP on CFIUS-relevant cross-references that the Library had needed to synthesize against the stored Soto matter documents and the novel construction from Ch.101. The 8 LP had cost $800 I did not have comfortably, and the purchase had felt thin in the way purchased LP always felt thin — but the argument was there and it was correct.
"The CFIUS review creates an administrative hold on the underlying transaction. That hold isn't a legal bar to performance in the way a court injunction would be — but it creates a material uncertainty about whether performance of the March 15 milestone was legally prudent during the Committee's deliberation period. The IBA Rules on document production include a provision for withholding documents where production would constitute a breach of a legal duty — administrative proceedings create an analogous duty of non-disclosure during active review."
I stopped. Imogen had picked up her pen again. It was moving.
"If I can establish that the CFIUS review made Cross's obligation to meet the March 15 milestone legally ambiguous during the relevant period," I continued, "then the counterparty's breach claim is built on a foundation that has a procedural gap in it — not a dispositive gap, but one that requires the arbitrators to resolve a question of fact about the state of Cross's legal knowledge and obligations during the hold."
The pen stopped.
"That argument is outside English arbitration law," Imogen said.
"Yes. That's why it needs a U.S. regulatory specialist to make it and an English arbitration specialist to decide when and how to deploy it in the proceedings."
She looked at me across the table with the specific expression of someone who has been presented with a division of labor that she has not previously encountered but which she cannot fault on its merits.
"The IBA provision you're referencing applies to confidentiality obligations, not administrative hold obligations. The analogy is strained."
"It's strained. It's not broken. If the arbitrators are comfortable with novel construction — and London-seated ICC panels often are — the strain can hold long enough to create uncertainty in the counterparty's position."
A pause. One of those pauses that operates differently from social pauses — this one was analytical.
"That is a novel construction," Imogen said. "It has merit."
She picked up the response letter again and made three notations in the margins with a fountain pen that she kept in a specific inside pocket of her jacket, produced and returned with the efficiency of someone who had been using the same pen in the same pocket for a long time.
"I'll restructure the document production section," she said. "You'll produce a U.S.-side brief on the CFIUS administrative hold argument and its relation to the performance obligation. I'll review it for anything that conflicts with ICC procedural requirements before it goes near the arbitrators." She looked up. "This is a workable division."
"That's what I came for."
She made one more notation. Across the table, Cross had his hands flat on the surface — the stillness he used when he was holding something together. I had watched that stillness in a deposition room in June. I knew it well enough to read its sub-categories. This one was the stillness of a man who had been uncertain and had just had the uncertainty interrupted.
"You two are very different," he said.
It was a simple observation. Neither a complaint nor a compliment.
Imogen did not look up from the letter. "That is the point."
I drank the tea, which had been sitting long enough to be cold. London tea even cold was good enough that I made a mental note — the specific pleasure of a decent cup of something you had not expected to be decent was the kind of thing worth registering.
"We need to talk about the arbitration panel," Imogen said. "The selection process begins in eight days."
We talked about the arbitration panel.
Cross stayed in his chair. His hands came off the table and into his lap, which was Cross settling — the transition from held composure to actual composure. By the time we reached the second agenda item, he had stopped watching us for signs of structural failure and had started listening for content.
The team was unusual. It was also going to work.
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