Dr Karen Akinci FCIArb is a non-lawyer arbitration practitioner, originally from South Wales and based in Istanbul where she is a managing director of Akinci. In Istanbul, Karen also sits on the board of the British Chamber of Commerce in Turkey. As a Fellow of CIArb in the European Branch and a Senior Tutor in the Pathways course, Karen also sits on the Education and Membership Committee and as Chair of the Practise and Standards Committee. Karen is married with three adult children.
Why have you decided to specialise in arbitration and adjudication? Tell us about your legal journey to ADR.
I had something of a bizarre journey into ADR. After graduating from the Mathematics Department of Exeter University (UK), I moved to Turkey to be with my now husband, Ziya Akinci, and started working as a lecturer in maths at Dokuz Eylul University (TR). We took over Akinci Law Office in 1995 with the birth of our first child, and I spent a lot of time working with experts to translate the science into legal claims; my first arbitration in 1998 was investor-State.
After my doctorate, I had a wonderful time helping to set up Izmir University of Economics. Not long after, and with two more little ones in tow, we moved to Istanbul, where I worked at Bilgi University. Eventually, I decided to retrain in the law, and one LLB and an LLM later, I became a non-lawyer arbitration practitioner and managing director in Akinci. I went back into academia as a lecturer in the Law Faculty of Bahçeşehir University for a spell. I am currently active in many arbitrations, both commercial and investor-State, mostly from the perspective of the expertise, cross-examination and claims arguments. In CIArb, I am a Fellow in the European Branch, a senior tutor, I sit on the Education and Membership Committee and as the Chair of the Practice and Standards Committee
What do you consider as the biggest challenge for the ADR in the future?
ADR, arbitration in particular, tends to be rather common law based and there is a very real danger that the process may be derailed in the future by rigid adhesion to common law practices. Setting aside the cost issues of hearings and disclosure, I would focus on the unfortunate trend towards treating past arbitration decisions as precedent. The fundamental difference between arbitration and litigation is that an arbitrator, appointed by two parties, comes to a legal and commercial decision on a specific dispute; whereas the judge, appointed by the State has a wider mandate to consider public policy ramifications and how their decision might translate into future cases. Judges decide ratio decidendi, the reason for the particular decision, and obiter dictum, the generalised point of law focused towards future decisions and formation of law. In civil law jurisdictions, where full reasoning is less common, the judge still makes decisions based on this training and mandate. Arbitrators are neither trained nor mandated to make law; their remit begins and ends with that one dispute and their mandate is with those parties. Whilst I appreciate the benefit of precedent in litigation, past decisions in arbitration are an inappropriate forum. Out of context snapshots of specific disputes, where the arbitrator had no training, mandate or intention of creating a precedent decision are likely detrimental. CIArb’s best practice guidelines, courses and Journal, together with international organisations and academia, aim to provide enough guidance to negate the temptation to resort to earlier cases.
What is the best thing about being a Member/Fellow of the CIArb?
I have very much enjoyed being a Fellow of CIArb and I look forward to the future, particularly to face to face networking events after lockdown. I dare say the best thing is the debating. I love spending time debating matters in the Committees, the networking events and the work I do teaching in the Pathways. I very much enjoy the “Learned Institute” environment where we get to debate aspects of arbitration under Chatham House Rules, new and old, in great depth and based on best practice and experiences of a diverse group of colleagues within the membership. These debates are crucial to new and valuable insights based on the diverse experiences of our global membership. Global harmonisation of arbitration has been the aim of international bodies since the First World War as a means of securing peace through beneficial international trade. Such debates lead to our best practice guidelines and our ability to share our membership experiences with organisations such as UNCITRAL to assist in their global aims.
Are there any developments in the field of ADR which you consider to be current “hot topics”? What is your opinion on them?
One of the most exciting new areas within ADR is Med-Arb and related hybrids. In many jurisdictions, the court will encourage, or mandate, the parties to attempt Mediation before litigation; this opens the door to the world of ADR. Some jurisdictions mandate or encourage the parties into mediation centres that also facilitate other forms of ADR. Once there, the parties can be informed about other forms of ADR, including arbitration, and the potential benefits of other forms of ADR, particularly arbitration, over litigation, which enables parties to make an informed decision about possibly entering into a post-dispute Arbitration or Med-Arb agreement. It is very interesting that parties destined for litigation might be encouraged into Med-Arb through state mandated Mediation. The potential benefits are astounding; both to the parties, through expedience, cost-efficiency and flexibility; and to the State by alleviating strain from the State litigation system. There is some talk in the community of international conventions, rules and a model law the like of the “Three Pillars of Arbitration”, specifically for Med-Arb processes in the near future; certainly something to keep an eye on. Look out for CIArb’s shortly to be released Med-Arb guidance.
Following the rise in awareness of human rights and environmental issues, do you see any other potential new avenues opening in international arbitration?
Can arbitration offer support to human rights and environmental issues? Most certainly. Remember that the General Assembly of the UN, when setting up UNCITRAL, said “international trade cooperation amongst States is an important factor in… the maintenance of peace and security”. Never has the global community been more aware of the need for globalised decisions to secure and protect both the human population and the planet itself. In the past, I have been quite vocal on my opinion that, particularly in investor-State arbitrations, the protection of a foreign investment walks hand in hand with the protection of that investor’s human rights. To separate the investment from the investor is asinine; but the debate has raged for far too long of whether the field of human rights lies outside of the scope of arbitration. The same of environmental issues. Coming to brass tacks, by far the more resolvable issues to do with human rights and the environment come down to the benefits of capitalism trumping the human and environmental costs, both on commercial and State levels. Arbitration, as a party autonomous dispute resolution system sitting within the seat of the arbitration and benefiting from domestic and international arbitration laws, is uniquely placed to assist the global commerce to find a balance between capitalistic gains and the needs of people and planet. The debate needs to be won out; facilitating arbitrators to make decisions against the backdrop of human rights and environmental issues being on par with commercial benefit. Human rights and the environment are truly global issues and require global engagement; and the only truly global dispute form for dispute resolution is international arbitration.
Tell us about your interests, hobbies or activities outside of work.
I blame my Welsh origins for my obsession with stories. I enjoy watching them, reading them, listening to audio books and audio dramas. I enjoy many outdoor sports with my audiobooks though I’m not a great fan of climbing or potholing. After a period off with a back injury, I’ve taken to Nordic Hiking (with sticks) as a good re-entry sport and short distance running. I’m hoping to take part in a sponsored half marathon hike called TrekFest up the Brecon Beacons in September, Covid permitting. The sound engineers on these audio dramas have a lot to answer for; the number of times I’ve jumped out of the way of a helicopter as I run over the wonderful landscapes of Wales or Turkey! Lastly, I absolutely love kayaking, mostly flat water, lake and sea, the solitude of a kayak on a vast body of water is bliss after the hustle and bustle of everyday life.
If you could be a film/book character for one day who would it be and why?
I would have to take over from the wonderful Eve Miles as the equally wonderful Faith Howells for the day! It is always lovely to see an inspirational female lead characters on screen but it’s not often you see someone that you can really relate to. Faith is a very Welsh “Mam”, slightly terrifying, sometime superhero, always the problem solver; a proper matriarch. I’ve spent some time in lockdown with my Dad in my childhood home up the mountains in Wales, after Mam sadly passed away last year. It’s given me a real opportunity to reconnect with my roots and even learn some rudimentary Welsh – mostly because the bingefest that is “Keeping Faith” originally came out in Welsh as “Un Bore Mercher”. (Catch it internationally on ClicS4C.) Faith’s character never gives up, even when it seems the world has turned upside down. She fights with her whole heart for her clients, her children, her family and her friends but she does so relying not only on her own considerable strength of character but on her support network. Faith message is that no matter how strong we are, we are not alone and we need our family and friends as much as they need us.