Legends Limelight: Carolyn Lamm Leads in International Arbitration at White & Case

Carolyn Lamm has been leading in her field, in some ways, ever since she arrived. The fierce litigator was a rising star in the U.S. Department of Justice before being tapped by White & Case where she was soon introduced to the world of high-stakes international arbitration. She quickly carved out a name for herself with big wins and cutting-edge cases – cementing herself among the top names in the space with her first big case, Amco Asia v. Indonesia.

Lamm successfully represented Indonesia in what is still one of the most heavily cited cases in the investor-State legal lexicon. Amco Asia v. Indonesia involved the revocation of a foreign investment license that allowed for construction and operation of a hotel in Jakarta.

The case was formative, raising a number of issues of first impression and launching Lamm into the high-pressure world of international disputes – a career track that would ultimately bring great notoriety and success.

In the ‘90s, Lamm was appointed by President Clinton to the U.S. Panel of Arbitrators of the World Bank's International Center for the Settlement of Investment Disputes (ICSID) and by the Government of Uzbekistan to the Uzbek Panel of Arbitrators for ICSID arbitration.

Beginning in ‘92, in the wake of the dissolution of the USSR, Lamm represented a number of mining companies in the uranium trade. Lamm expertly negotiated a suspension agreement, ensuring that uranium could still be imported into the U.S. in certain amounts, with certain import restrictions. She was one of the founding members of the American Uzbekistan Chamber of Commerce which she has served as Chairman of the Board for over 10 years.

“The U.S. put in restrictions that stopped all sales of uranium from Uzbekistan into the market,” says Lamm. “We fought for about 10 years, and ultimately we won and all the trade restrictions were removed.”

Lamm’s stellar track record in international arbitration and dispute resolution and glowing reputation have solidified her status as a true leader in her field. She has continued arguing and trying cases in U.S. Courts and is a member of the American College of Trial Lawyers. A highly revered lecturer, Lamm teaches International Investment Arbitration at the University of Miami School of Law in the White & Case LLM program. She is passionate about offering her students the best possible tools for success.

“I tell them a lot about the kind of tenacity it takes to build a case, to develop the theories that are needed to win, and how to work in the profession and do well for your clients,” says Lamm. “You've got to love it because you're going to work exceedingly hard to do what you're doing.” Her excellence has been recognized by her peers as she served as President of the District of Columbia Bar, The American Bar Association and the American Bar Endowment.

Lamm is an esteemed member of The Lawdragon Legends, inducted in 2018.

Lawdragon: What first brought you into the world of international arbitration?

Carolyn Lamm: I think I evolved very much as the practice did. I started as an honor law grad at the U.S. Department of Justice in the Civil Division, and I tried a number of cases. I was in the Civil Fraud section and then I was Assistant Director of commercial litigation. That is really on-your-feet trial work in the courts of the United States, and you learn the advocacy skills that you need. I had been teaching trial advocacy in NITA, the National Institute of Trial Advocacy program, and I met some of the litigators from White & Case and they ultimately invited me to join them in 1980. So I have been at White & Case ever since, very happily litigating and arbitrating international disputes. That was at the time of the fall of Iran when there were so many claims in the U.S. that then went to the claims commission that was set up by the accords, and at the same time many of the high-profile international arbitrations began being arbitrated at The International Centre for Settlement of Investment Disputes, ICSID – the center at the World Bank.

There's all kinds of chatter about dissatisfaction with the international arbitration system and questions surrounding international arbitral tribunals. But the bottom line is, in order to attract investment a country has to assure investors that if they bring their millions or billions to this country, they will be treated at an international legal standard.

I was in the second case ever filed at ICSID, Amco Asia v. Indonesia, representing Indonesia with Charles Brower. He was a partner and I was an associate, but he left and went to sit on the Iran–United States Claims Tribunal and I took over that case. It went on for many years through the regular trial process and the annulment process and then another trial. It progressed from there as international arbitration expanded. We prevailed in the annulment proceeding and were pleased with the outcome of the arbitration ultimately for Indonesia.

White & Case had many client relationships with foreign sovereigns that when they had disputes, they were the kind of cross-border disputes that are resolved by international arbitration. So, I naturally was able to develop a strong international arbitral practice – but I've never completely left the U.S. courts because there are always enforcement proceedings in the U.S. courts after an award or any number of arbitration-related proceedings. I would say approximately 85 percent of my work is in arbitration, but I really do both – it varies.

LD: What drew you to this work? Do you have lawyers in your family?

CL: I always liked arguing and I love the thrill of the battle. I grew up near Buffalo in a small town, East Amherst, New York. There were very few women in the legal profession – they certainly weren't going into trial law. My dear father said, "Women could be teachers, they could be nurses, but really? You're going to waste your time being a lawyer? No one will hire you." I said, "No, I think they will."

I had an older cousin, who was the first one in our family that went to law school. He did very well, and he was a great mentor. There were not that many role models – when I went to the Department of Justice in the civil division, we had 400 lawyers and we had about 20 women. It was a very different time.

LD: How have you seen gender parity in international arbitration evolve over the years?

CL: I’ve been watching it closely. I've been chairing the Task Force on Gender in International Arbitration. It's published by Kluwer and ICCA. We organized a task force of the major arbitral institutions who provided their data and we analyzed it. It came out first in 2020 – something to do during the pandemic – then in 2022, and we are now working on another edition. The task force has found tremendous progress between 1990 and the present – in terms of women sitting as arbitrators and being lead counsel in arbitrations.

LD: Is there a matter that stands out to you from your long career at White & Case that is particularly memorable?

CL: There are so many. In Abaclat v. Argentina, I was lead Counsel of the team representing 180,000 bondholders against Argentina. We filed it as an ICSID arbitration – which was the first time a mass action was ever filed under the conventions. At the same time, we filed it in U.S. courts as a group action, but that one stayed pending the resolution at ICSID, where we prevailed on jurisdiction. That was the big question, in addition to liability and expropriation – this theory of the taking of the bonds because of the cramdown law in Argentina. That was major because it was the first ever and it was a different theory, and ultimately, we settled it with the government of Argentina for U.S.$1.3B.

Another really memorable one is Metal-Tech v. Uzbekistan because that was the first of the cases at ICSID where as a treaty violation, the claims were dismissed on the basis of a finding of corruption to obtain the investment. It was one of the first times that theory in an ICSID case had prevailed for dismissal on behalf of the state.

Representing the Republic of the Philippines in two ICSID arbitrations, Fraport AG Frankfurt Airport Services Worldwide v. Philippines, under the Germany-Philippines BIT was also highly memorable. The disputes involved contracts for the construction and operation of an airport terminal in Manila, and I led the White & Case team that secured an award dismissing all claims in the first arbitration, which was later annulled on procedural grounds, and achieved a complete victory for the Philippines by dismissing all claims in the second arbitration.

I was also involved in the landmark RPP multi-districted group of antitrust cases against the major producers of refined petroleum products from Venezuela, Kingdom of Saudi Arabia, Russia and Mexico. I led the team that represented the Saudi producers and we prevailed to dismiss the cases on act of state, political question grounds.

In arbitration, you have to be fairly flexible in terms of comparative analysis to see what you can argue, what is the applicable law, what is the best approach and strategy, and a lot of times you don't have a rigid rule to look to.

LD: Can you tell us what’s been on your plate more recently?

CL: A court case recently I had for Tenex USA – a Russian uranium importer – was a case brought by Chabad, and the D.C. circuit just recently ruled. It was a unique Foreign Sovereign Immunities Act argument with an expropriation that occurred allegedly in the territory of Russia but nothing in the United States. So, under the Foreign Sovereign Immunities Act (FSA), we said there is no way to execute against the assets of this entity because there was no jurisdiction. Now they've petitioned for U.S. Supreme Court review, so that one is very much still live – it’s ongoing.

LD: Tell us about your work as chairperson of the American Uzbekistan Chamber of Commerce. How did that come about?

CL: I was founding member of the AUCC. I started working with Uzbekistan on an anti-dumping proceeding at the U.S. Department of Commerce shortly after the breakup of the USSR. The U.S. put restrictions under the dumping laws on the import of all uranium from Uzbekistan. I met the producers of uranium, and they retained me to help them resolve the proceedings against uranium that had stopped all sales of uranium from Uzbekistan into the market. I negotiated a suspension agreement so that a certain quantity of uranium could still be imported into the U.S. with certain import restrictions. We fought for about 10 years, and ultimately we won and all the trade restrictions were removed.

LD: Incredible. How about now, are there any current trends you're seeing in international arbitration?

CL: There's all kinds of chatter about dissatisfaction with the international arbitration system and questions surrounding international arbitral tribunals. But the bottom line is, in order to attract investment a country has to assure investors that if they bring their millions or billions to this country, they will be treated at an international legal standard. If a capital importing state cannot guarantee that, investors will go to one of the other 165 countries in the world that will. These countries compete with each other for foreign investment dollars, so it's exceedingly important to economic development in so many of the developing states.

Most nations like foreign investments – the U.S. included – and the state must assure investors and their boards that in fact you're going to treat them fairly, equitably, you're not going to take their investments without compensation in a prompt way. This chatter may prompt some changes, but it can't eliminate the system of dispute resolution and any of the big cross-border investments or you're going to eliminate the cross-border trade and investment that is vital to almost every country around the globe. The commercial arbitration is similarly important to ensure the rule of law and the contracts will be respected.

LD: What are the qualities that you look for in associates in the international arbitration group?

CL: One of my senior partners always said – anyone who gets in the door is going to be smart enough. You need someone who has the fire in their belly, who's really going to work diligently to be the very best for the client. In international arbitration you need people who are creative and who can do the comparative analysis of the law in different legal systems. You have the Federal Rules of Evidence, Federal Rules of Civil Procedure, and New York state law in a case. You're arguing international procedure, international law, international concepts of due process – and at the same time, host state law. Sometimes there are more than one national legal systems. In arbitration, you have to be fairly flexible in terms of comparative analysis to see what you can argue, what is the applicable law, what is the best approach and strategy, and a lot of times you don't have a rigid rule to look to. So you're looking for people who can handle all that.

I spend a fair amount of time brainstorming with my partners, associates and clients to agree on a strategy and the best evidence to present. Everybody's got to be comfortable, and I always want to hear the bad parts of my case so I can address it. I don't ignore it, I crush it.

LD: How would you describe your style as a lawyer?

CL: I'm always a very diligent, careful lawyer who looks at all of the possible pros and cons of arguments. I spend a fair amount of time brainstorming with my partners, associates and clients to agree on a strategy and the best evidence to present. Everybody's got to be comfortable, and I always want to hear the bad parts of my case so I can address it. I don't ignore it, I crush it. I also think it’s important to do a careful analysis of the law and where it's going, where it is, and how you're going to argue and to whom.

LD: How did your early experience at the DOJ inform your style?

CL: The experience that I had at the Justice Department is incomparable and invaluable. To go into court and stand up and say, "Carolyn Lamm for the United States," I must have met with every agency with an interest in the case. And we've all got to coalesce, to come together so that we’re going to make an argument that is acceptable to all the agencies – and they all have very different views. On-your-feet experience at DOJ is incomparable. You're standing up, trying cases, examining witnesses, arguing. You try, you fail, and you know how to do it all by the time you're getting toward the end of that service.

LD: Are there any pro bono matters that are particularly meaningful to you?

CL: I am involved in many things in addition to my chamber. I still do a lot with the American Law Institute and was on the council for years. Now I am on the advisory committee for the Foreign Relations Restatement and I'm a Council Emeritus member, so that takes some time and attention and I love it – it's the development of the law. I'm also co-chair of the University of Miami White & Case LLM program in international arbitration, and I teach international investment arbitration with some great students, both foreign students and some domestic. That's always stimulating. I run the White & Case annual lecture at the university on an international arbitration topic.

LD: What's the top advice that you give your students about starting a career in international arbitration?

CL: You've got to love it because you're going to work exceedingly hard to do what you're doing. Many of them have the basic law degree and then come to the university for the LLM in international arbitration so they can return to their countries and practice in that area. I tell them a lot about the kind of tenacity it takes to build a case, to develop the theories that are needed to win a case, and basically how to work in the profession and to do well for your clients.

LD: You’re a highly sought-after lecturer. Have you given any recent talks on arbitration?

CL: I recently gave a high-profile keynote in Basel. It was for a conference on corruption in international arbitration, and I was invited to give the keynote speech this year. I go every year and I've always contributed to a workbook that they put together for arbitrators on how to analyze evidence and handle cases where you confront corruption, fraud, misrepresentation, et cetera. It's a very challenging issue. In February, I also had a big speech in Riyadh at the Saudi Arbitration Week. It was on conflicts of interest when you're sitting as an arbitrator or as an advocate when there’s a conflict present with one of the arbitrators. I do a lot in that area.