[ICC International Court of Arbitration, London — October 25, 2012, 10:02 AM]
Second chair was the correct position and the mildly uncomfortable one.
The hearing room had the specific formality of international commercial arbitration — not a courtroom in any American sense, no gallery, no jury, no gallery noise. A long table for the panel of three. Opposing counsel on the right. Imogen at the podium. Don Klein, second chair, at the plaintiff's table in a seat that was technically present and legally invisible unless he was specifically invited into the record.
I had been in every seat in litigation rooms except this one. I had taken depositions, argued motions, run three trials. I had never been second chair to someone who was unambiguously running the room better than I would.
Imogen was running the room better than I would.
She argued with the specific economy of someone who understood that arbitration panels were composed of professionals who had read every submitted document twice and did not require the argument to be explained, only organized. Her opening was eleven minutes. It contained two citations, one quote, and zero rhetorical flourishes. The panel of three took notes throughout.
The governing-law gap had been flagged three days ago. The Cross infrastructure contract had a clause specifying English law as the governing law for the core commercial obligations, but a sub-clause that created an ambiguity about whether the CFIUS-related obligations — which were inherently American administrative law in origin — were subject to the English governing law clause or to a separate body of law. Opposing counsel had found the gap and filed a brief arguing that Don's CFIUS-based force majeure argument was jurisdictionally outside the scope of the English governing law clause.
Imogen had not yet addressed it directly.
I had $40 in personal savings and 0.2 LP. The financing window was now at seven days. The arbitration needed to close with an interim ruling before the bank pulled the commitment letter.
At 10:34, I authorized LP Debt for the first time.
The Library had flagged the LP Debt system as available since March 2011 — discovered at the Ch.23 LP wall crisis, noted as "available but unused." I had not used it then and had not used it in eighteen months since, because the discipline was: earn LP through case wins, convert cash when needed, never borrow against future earnings. The discipline had held until the London trip had drained my personal savings to $40.
LP Debt: borrow 4 LP against next earned LP. Repayment: 1:1 at next generation event.
Four LP. Enough for a deposition overlay, not quite a full strategy run. Enough for the hearing.
[LP Debt: −4 LP borrowed, repayment pending.]
The overlay activated with the specific flat quality of a system running under debt rather than surplus — not worse, not better, just different in the way borrowed tools feel borrowed. I ran the case arguments against the panel's visible posture — the way three arbitrators hold their pens, the quality of attention each gives to opposing counsel's documents versus Imogen's.
Opposing counsel made his governing-law argument at 11:05. It was clean, specific, and had the correct answer to it somewhere in a line of English case law that I had not encountered and could not find in my stored 108 documents.
Imogen let him finish.
She went back to the podium.
"The governing-law ambiguity my learned friend identifies was resolved by the English Court of Appeal in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb, decided 2020." She cited the case number without consulting notes. "The applicable principle is that English law governs not only the express obligations under the contract but the framework for determining which obligations are within scope — including where one party's obligations arise from a foreign regulatory context that was contemplated at the time of contracting."
She paused.
"The CFIUS review was contemplated at the time of contracting. The contract's originating recitals acknowledge the cross-border regulatory environment. English law is therefore the governing framework for determining the scope of the force majeure-adjacent argument, and the Enka principle resolves the ambiguity in my client's favor."
I ran the Enka cite through the Library. The Library did not have it. It absorbed it in real time: 1 LP from the 4 LP debt allocation, document #109 of 250 added. [+1 document: Enka Insaat v Chubb, CA 2020, governing law in cross-border commercial contracts.]
The panel's center arbitrator had put her pen down.
I had been watching that pen since 10:02 AM. The pen going down was the tell.
She was convinced.
Opposing counsel attempted a response. He cited two cases in reply. The panel's left arbitrator — the most skeptical of the three, the one who had leaned back when Imogen started — straightened in his chair during the second case and made a note. Not a supporting note. The pen movement was the short, horizontal stroke of someone logging an objection.
At 11:31, the center arbitrator called a fifteen-minute recess.
I wrote one note on the legal pad and passed it to Imogen: They're going to ask about the Enka principle and the CFIUS standard. Two-sentence bridge. Treasury uses the same "contemplated at contracting" language in its review framework.
She read it. She made a note on her own pad. She did not look at me.
The panel came back at 11:47.
The center arbitrator addressed both counsel.
"The panel has a question for Mr. Klein regarding the CFIUS review's relationship to the Enka principle." She looked directly at me. "Would counsel address the governing-law implications of the Committee on Foreign Investment's preliminary review correspondence for the record."
I stood.
I gave the two-sentence bridge: "The Treasury's preliminary review correspondence uses the phrase 'contemplated at contracting' as a term of art to identify the transactions within CFIUS review scope. The same phrase appears in the contract's originating recitals in reference to the cross-border regulatory environment — which establishes that the CFIUS review was within the contemplated scope at contract formation, and therefore within the English governing-law framework."
I sat.
The panel wrote.
Imogen was at the podium. She did not look at me. Her expression was what it always was — contained, precise, attending to the next task.
The interim ruling came at 12:44 PM.
The governing-law question resolved in Cross's favor. The force majeure-adjacent argument was within scope. The arbitration would proceed on its merits.
[LP earned: +5 LP. Cross arbitration interim win, mid-difficulty.] [LP Debt repaid: −4 LP. Net gain: +1 LP. LP reserve: 0.2 + 1 = 1.2 LP.]
Cross, sitting beside me in the client chair, made no sound. His hands came off the table and into his lap, the transition I had learned to read as him settling. Not relief — settling. The fight was not over. The interim ruling was the path forward becoming visible, not the destination arrived at.
Imogen and I walked out into the London afternoon. The walk from the ICC hearing room to the street was four minutes and a flight of stairs. We walked them in professional silence — the specific silence of two people who had just finished something and were in the moment of returning to their normal state.
On the second landing she said, without breaking stride: "Your secondary brief on the CFIUS implications."
"Yes."
"The panel did not expect it."
"I know."
"Good." She continued down the stairs.
We reached the street. Cross was behind us, on the phone — already calling his bank, I assumed, which was the correct first call.
Imogen stopped on the pavement. She looked at the street with the expression of someone completing a professional assessment.
"The Enka principle," she said. "You had not encountered it."
"No."
"I noticed."
"I know."
"You integrated it in eleven minutes and produced the CFIUS bridge." She paused. "I've had worse second chairs."
From Imogen Hartley QC, three words constituting a positive evaluation, delivered without inflection, to a man she had corrected in front of his client on their first day of working together: this was a significant statement. I understood it as such.
"You ran the case better than anyone else could have," I said.
"Yes." She put on her coat. "I'll have the CFIUS mitigation review on your desk by Thursday."
She walked toward the tube station.
Cross came off the phone. "The bank's holding the commitment letter pending CFIUS clearance." He looked where Imogen had gone. "She's something."
"Yes."
"She's right about the second chair, by the way." He said it without looking at me. "You're better at everything else."
He was not wrong, and he was also wrong, and both things were true in a way that I was not going to sort out on an October pavement in London three days before a CFIUS financing window expired.
I called Harold.
The phone rang once. "How'd it go."
"Interim ruling for Cross. Governing law resolved in our favor."
Harold was quiet for a second. Not surprise — he had been tracking the matter closely enough that he knew the shape of what a good outcome meant. The silence was the specific Harold silence of a person registering a win before moving to the next task.
"I'll update the file," he said.
"Thank you."
"When are you back."
"Wednesday."
"I'll have the Klein Legal quarterly review on your desk."
"I'll be ready."
I put the phone in my pocket. The London afternoon was doing its thing. The CFIUS mitigation was still open. The financing window had seven days. Imogen was somewhere on the tube.
1.2 LP. The first LP generated through debt repayment rather than pure case win. A new category of Library behavior, available and functioning. The Debt system had held — 4 LP borrowed, 5 LP earned, 1 LP net. The math had worked.
I would not use it again until the savings were replenished. That was the rule I was writing now, standing on this pavement, before it was needed.
I flagged a cab.
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