Arbitral Insights

Andrew Tetley welcomes Prof. Dr. Eckart Brödermann, Managing Partner of Brödermann Jahn (Hamburg), to discuss the UNIDROIT Principles. The conversation delves into Eckart’s long-standing connection with these Principles, his authoritative commentary on them, and his practical experience applying them in business and arbitration. The discussion also touches on the benefits of the Principles and offers a glimpse into Eckart’s life beyond the law.

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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. And with that, let's get started.

Andrew: Good morning. I'm Andrew Tetley, a partner at Reed Smith in the Paris office. Welcome back to Arbitral Insights. I'm joined today by Eckart Brödermann, who is a professor in Hamburg, long-time involvement in arbitration, and founding partner of his law firm in Hamburg, Brödermann Jahn. The subject that we will be touching on in some depth is the UNIDROIT Principles of International Commercial Contracts, but also hopefully getting to know a little bit more about Eckart for those Music. of you who know him, learning something new, and for those of you who don't, learning about him from scratch. So welcome, Eckart, and thank you for giving your time over for this podcast.

Eckart: Thank you so much. Good morning.

Andrew: Let's start with a short introduction. So tell us a little bit about your background and your association with the UNIDROIT principles of international commercial contracts.

Eckart: My background, in a nutshell, at age 18, I left Germany. I spent four years in your beautiful city of Paris. DEUG, licence, maitrise fully studied in Paris, then moved on to Harvard. At that time, Germany wouldn't recognize any title from Paris. And Harvard said, I don't care whether you studied in Germany or in Paris. So I spent my time there where I started focusing on Chinese law, East Asian Legal Studies program. Thereafter, took the New York Bar, worked in a large law firm in Washington, D.C., Steptoe & Johnson. At age 24, decided what to do at age 40. I don't have any education in my home country, so I went back and started studying for the third time. Since my second studies, I financed everything myself, including loans to finance Harvard, and I always worked part-time in the legal business to finance all that. And ever since, I'm working, I'm loving the law, and I'm giving full speed. But, of course, I learned that the same thing you learn in one country happens to be wrong in the other country. You also learn that the problems of the people and of the companies are all over similar. In the end, we want to realize our dreams, we want to build business, we want to realize business plans, and for that we need tools. And I always have been both on the contracting side and on the arbitration side. Arbitration, I got to grow with the Iran Claims Tribunal in the early 80s and the UNCITRAL Rules. So, with that said, how did I bump into the UNIDROIT principles? In the beginning, I was, as many possibly in the audience have never heard about that, it starts with the word UNIDROIT. UNIDROIT is an abbreviation. It's a French abbreviation for the international organization called International Institute for the Unification of Private Law. And that in French, Institut pour l'Université de Droit, Privé, c'est Unidroit. So in 2001, I was in an arbitration in Switzerland. Huge stuff about orbital slots, relationship to several countries. I kind of also fell into that case as second counsel in the beginning. The case was fired out of Asia, and somewhere on a plane ride from the Caribbean back to Europe, I convinced the later client that it would be good to have not only a criminal lawyer from the Philippines, but maybe also an arbitration expert to join that arbitration. We had a great arbitration. I told him how many millions he would be likely to get. We got that in the end. But we argued under English law, because his company was from Anguilla, and the contract said something to English law, and I think we could have won it. The other side, though, the other side decided to argue in favor of Swiss law, arguing it would be also neutral, which of course is probably nonsense, because having been neutral in World War II has nothing to do with whether the law itself is neutral. And so we had those two argumentation lines and the pathological, so sick, choice of law clause. And it was the arbitrator, the arbitration tribunal, who came forward and said, why under these circumstances don't you consider to agree on the UNIDROIT principles with something really neutral? And that is something which happened to me over my lifetime more than once. And I've heard that anecdote also from a number of colleagues.

Andrew: You mean tribunals and tribunals suggesting the UNIDROIT principles over clashes of applicable law.

Eckart: Absolutely.

Andrew: This has happened to you on more than one occasion then.

Eckart: Yeah. And to join on neutral ground, in one instance, it was in an arbitration before the Chinese European Arbitration Center. You know, that's something I set up between 2004 and 2008, along with many colleagues in the Hamburg Bar. Today it's called the Asian European Arbitration Center here in Hamburg, focusing on arbitration with Asia. There in Article 35 we even explicitly foresee the option to either choose the state law or the UNIDROIT principles, of course, the CSG. And people decided, yeah, and under those circumstances, we decided to actually agree on the UNIDROIT principles. In the third arbitration I was even the other party, I was counsel and the defendant proposed the UNIDROIT principles instead of the chosen Chinese law. And we said, okay, okay, we agree it's not so much at stake, not so huge figures. So basically, everybody wanted to resolve this efficiently. And from an ex-post perspective today, I know today, which I didn't know then, that about 47.6% or so, according to some statistics of Chinese contract law, is based on the UNIDROIT principles. So basically, in a nutshell, the UNIDROIT principles are general principles of law and really neutral, and this is why we found out we could agree. We had three days in Switzerland. They gave us three days. I had, of course, an English solicitor on the team, who is today a well-known barrister in London, and we analyzed from the civil and common law perspective, and really, in the end, it's not the law that matters. In the end, in that case, it was a case of damages. It's more about quantum, how you convince the arbitrator. It's the facts that count. No llaw gives you any amount. In the English approach, you have this Harley versus Baxendale approach. Is it too remote? That's a test. In French, the test is, is it foreseeable? And from a German perspective, is it adequate? Yeah, the link between the causation and the harm. So whatever it is, you need to convince the arbitrators. So we decided to accept that offer from the Arbitral Tribunal.

Andrew: Excellent. Well, I mean, obviously, this was your first experience or exposure to the principles. And this was some 20, 25 years ago. Tell us a little bit more about what you've been doing. I mean, you've remained engaged with these principles, literally, ever since. And you're known in this space for that and written commentary on it and a very readable book that's in its second edition now. What keeps you interested in the principles? I mean, how much time do you spend in the principles in your day-to-day these days, as opposed to working on either German law or other applicable laws? I mean, how much time do you spend and how much in the arbitration, how much in transactions? How is it in your daily practice?

Eckart: It has always been there. Since 2004, we won this arbitration and the Asian client was so happy that we reinvested all the money which he earned from a foreign state who was on the other side. And we settled in the end and got part in cash and part in satellite rights. So I made a lot of transponder lease contracts under the UNIDROIT principles in different countries, in East Europe, in France, in Germany, in Asia, in the Caribbean. So I got to start working with them. And it's easy. I mean, they are not longer than a normal complex English contract, I think 26 pages or so, if you read all the 211 principles, they're an easy read, they're deliberately written as general rules, and in English, including famous professors like Professor Farnsworth from America, Roy Goode from England, so a number of famous brains, and brains around the globe, but they're easy to read, easy to understand.

Andrew: They certainly are. I mean, I was lucky to be in Hamburg, as you know, your invitation for the 30th anniversary of the principles this year. And the sort of roundtables that we were doing was illustrating that they're easy to understand, easy to get hold of. And, you know, they are being used. Maybe you could tell us a little bit more about who's using them, the reasons for using them, for those who may be listening who might have heard of the UNIDROIT principles but have never actually had any practical experience of them.

Eckart: Before I do so, may I tell you this episode from Rome. When I wrote this commentary, which you meant, an article-by-article commentary on the UNIDROIT principles, when it was written, the manuscript, I gave it to a friend from Harvard to read, a businessman. He said, I want you to once read it. Is it really understandable to help out whether it's fine? And he came back. He read on the long-distance flight to Hong Kong and back and said, you know, he was amazed by the level of detail of those principles and said, in the future, I'm going to influence everybody whom I can to use them if we need something cross-border, international, neutral. And so that was the episode, and I forgot about it. He married to an Ukrainian, and one of my sons just married also an Ukrainian woman. Before I had to give a speech in Rome, I called him. We spoke first about Ukraine, of course, and then I asked him, by the way, did you ever put this to practice? And he came out with this amazing story that he influenced actually a deal. And it was the biggest transaction, $69 billion transaction in 2023, where a company, New York Stock Exchange, mainly held by Michael Dell from Dell Computers, was sold over to Chinese under the UNIDROIT principles, both the M&A deal under the UNIDROIT principles and the IP contract. So I give you that big contract up front, which puts in a relationship all the daily practice which I have. In the last five years since my commentary came out, I have spent most of my time as kind of external counsel to a Fortune 500 company acting around the globe. And ever since I'm doing that, I'm using them now daily. They're very good for intercompany stuff. They're good for sales stuff. I work a lot in the automotive industry. They have been accepted by opposing counsel who never heard of them, like from Canada, or of opposing counsel who had heard of them but never had looked into them, from Poland, all over. Any industries, all kinds of contracts, over 30 kinds of contracts come to mind. We even used them once to set up a zoo in China. I used them to humanitarian help. I put up a charity through this family link, which helps humanitarian help over to Ukraine. And why should the Ukrainian government accept German law? Why should I accept Ukrainian law, which I can't read? So it may be the best world in the law, but it's neutral. And we agreed on that. So I do these deals also under the UNIDROIT principles. So from small spot deals... Like a donation agreement, to a cooperation agreement to jointly submit to a European public tender, or the complex cooperation deals in automotive. If you set up a new model electronic car to come out in two, three, four years, to be produced for seven years, with spare parts another 15 years, we're talking about 20 years. How to look into the crystal ball, Or I think it's good to work with general principles of contract law and not to outsmart one outsmarting the other.

Andrew: Well, that's right. I mean, certainly it makes perfect sense. And when we were gathering in Hamburg, I mean, the in-house counsel from the companies and organizations that were presenting were explaining that where they're having to deal with multiple suppliers all around the globe, of course, it's simpler to have one set of laws applying to all those contracts. So from the in-house counsel perspective, it simplifies contracting to an enormous degree. So I suppose, how has it been received by the common law world? Because the civil law world and the common law world are sometimes said to sort of stare at each other across a great divide in these sorts of matters. But what's your experience been with common lawyers in this area?

Eckart: I mean, for one, this old episode of 2001 was experienced jointly with a London-based solicitor. Second, one of my biggest instruction arbitration was the Sulu case. It's a case against the state of Malaysia. Old contract 1868, where you could apply anything, was very difficult to detect what type of law. And under the circumstances, the upper tribunal was inclined to apply general principles of law. And the question came up whether one could use the UNIDROIT principles as general principles of law, even in that context. and came out with a $15 billion award, but basically the instructing side was a common law barrister an English-based American barrister Paul Cohen who instructed me of course I took it the English way and said it's my obligation to the court I so I acted in a truly neutral way but in in the same way as I acted in the in the early 2000 because they are really global i mean it's really remarkable if you if you consider that we have hundreds of national court decisions in about 35, 40 countries on all continents where the local court have looked into the UNIDROIT principles and have used the UNIDROIT principles to interpret or even supplement the local law. You have that often in local laws which are not so specific on a certain point. Like Central America, Guatemala, those kind of countries, or East Europe, those kind of countries, but also extremely developed countries with a long-standing routine like Spain. In Spain, you have over 100 court decisions where the local court has used the UNIDROIT principles to supplement national law. And that's, I mean, we're talking about arbitration insights. That way it can help the arbitrators, the tribunals. If we have to cope with some strange law, some law which in that composition of arbitrators, at least some of the co-arbitrators, are not reading every day for breakfast, it helps to read that law. And if you have an interpretation which can be supported because the UNIDROIT principles would come to the same solution, then it really can be a convincing argument. I think if you write a good award, you want to convince both sides that this is the road to go and the road to accept.

Andrew: You're talking about helping tribunals. Let's just dwell on that a second because the audiences who tune into our podcasts are interested in arbitration. Why do the principles and arbitration exist? Why do they make good bedfellows? Why should someone thinking of the principles then think arbitration or vice versa? What are the advantages of combining arbitration and the UNIDROIT principles?

Eckart: You have pre-arbitration and post-starting of arbitration. I think that's the two episodes. Let's first concentrate on the first episode. That's the contracting stuff. And that's what we call simplified global contracting. Actually, I came up with that idea, and I gathered all kinds of people around the globe, and in the end, it was the in-house counsel from America who came up with this language, simplified global contracting. And for me, that's really combining the two pillars on which any contract is standing. On the one hand, the choice of the arbitration forum, and the other one, the choice of the rules of law. And the arbitration clause, in my mind, is the most important clause of the contract because it determines which brains decide in the end if ever there is a dispute. And arbitration regimes also usually give you the freedom to choose rules of law, as we have this in Article 28 of the Uncitral Model Law, as opposed to state law. So we have the opening to the soft law within the arbitration of private international law.

Andrew: That's right. I mean, with the arbitral framework, the pillar, one of the pillars, essentially what you're doing is you're converting the soft law of the principles into hard law, because in an arbitral forum, one can do this. In the leading arbitral institutions, you're allowed to select principles that are not a state law, whereas in a state court, that's not possible the state courts in principle have to apply their own laws

Eckart: I've never looked at it that way but basically that's that's exactly what's happening through the hard law basis that you may choose rules of law you really turn the soft law into hard law correct and if you combine thus an arbitration with the choice with choice of the UNIDROIT principles it's a it's a functioning easygoing system so this is why I think it's a good friend a good bed pillar. The second stage is after the arbitration, once the arbitration has started. So we already had this one set of examples where you agree later on on the arbitration, even if you look at the model clauses, which you find referred to in a footnote of the preamble of the UNIDROIT principles, they always provide clauses both for pre- arbitration, and post-arbitration, how to agree on them. So that's the second scenario. Then you have those strange cases. It reminds me of a case which I had as an arbitrator in Stockholm. Parties had chosen something like international commercial law. So quite often you find those funny choices of the parties. And it shows the intention to stay away from too tough state law. In the end, parliaments make local law with regard to the local needs and the local voters and consumers. So that's distinct from the good faith company-to-company, business-to-business law. So in that situation, the UNIDROIT principles, again, are a very helpful tool to kind of give some flesh to what has been chosen with international commercial law. So that's the second way as an arbitrator. The third way is what we already hinted at, that you have some state law that applies, and you look into the state clause and you tweak it a little bit. For example, let's say, as an example, in a damage scenario, if the other party who was basically damaged contributed to that damage somehow, or it did not take any action to mitigate the damage where it could easily have done so, that's principles which, from a continental perspective, our perspective, that would be a matter of good faith to do that. And from a common law perspective, it would also be reasonable and practical to expect that somebody acts that way. So sometimes, you know, between common and civil law, we discuss about a lot of this notion of good faith, but we are too much discussing about words. In the end, when we go deep, we very come to similar solutions. Here, the UNIDROIT principles really have developed language deliberately in neutral language, so it's not so much like common or civil law. It's really an autonomous legal set of rules. Then you can use that and 747, 748 of the principles are great on the duty to mitigate damage or the need to consider if the other party contributed to the damage.

Andrew: Yes, I mean, in French law, you have fault of the victim and in English law, mitigation, the duty to mitigate. But the outcome that's being sought is not so different, perhaps. And that's what the principles of sort of gather this together and put it in a neutral language so that people... I mean, I think one of the questions we had in the conference, 30-year conference, was about how some of the words used might trigger particular reactions in common lawyers that might not be triggered in a civil lawyer. So it is, the words are obviously important.

Eckart: Let me take one critical point. I know a lot of common law lawyers who totally support them. And sometimes I meet on common law lawyers who really have never looked into the UNIDROIT principles. They just work with pre-made judgments. And the one point I hear sometimes is that there is hardship in there. So basically, they do provide in Section 6.2 the possibility under certain extreme scenarios, which rarely happen because pacta sunt servanda is a basic principle. And there are very rare exceptions. That's been discussed since Cicero, since Roman times, since 2,000 years. We have this friction between pacta sunt servanda, a bindingness of contracts on the one hand, and when you can tweak out of it under very rare extreme exceptions. And in those situations, you should give notice, you should negotiate, and do that in good faith. And in the very extreme, the UNIDROIT principles do permit that you can go to the arbitrator. And we've seen that in this extreme, yeah, not climate change, in all kinds of extreme gas-related contracts, etc. But what I've done during COVID, and I've written tons of contracts under COVID. I mean, how do you do in the middle of COVID, 20-year contract, where of course the pandemic can come back. And of course it would not be unforeseeable because in an abstract way, we can all foresee it could come back. So in those situations, I very often put that just on the screen. And then we discussed, how do you want it? I mean, it's all about party autonomy. The UNIDROIT principles always come along with the section Article 1.5 that you can change within reason what you want to do. And then we discuss it. Do we want to change in the facts on when it's triggered? Because, for example, we want to trigger it even in the pandemic, even if it's not unforeseeable, so we can tweak there, or we can tweak on the other end. And I've seen everything. Sometimes we've agreed that, okay, it's okay, the arbitrator may decide. Sometimes we decided, no, we don't want this. Let's just negotiate, and we don't come to terms. Tough luck. So, but that's a decision to then take, and I think it's good that's in there, because it inspires people to really concentrate and negotiate these points.

Andrew: Well, there's no doubt that it focuses mind, and I suppose the other point to be made, for those who perhaps aren't familiar with the principles is that you know party autonomy is at the heart of it in the principles and there's very little in the principles that that trumps party autonomy

Eckart: Yeah there's very very little and if you if you look at the very big picture we have the roman law of year 532 roman emperor Justinian compiled all of that then it developed over the centuries, you have Battle of Hastings, Magna Carta 1215. Common law develops through all the judgments, which we know more or less, which are a little bit opaque from a civil law perspective. And then came the Americans after World War II, and they took all of that common law, and they added salt and pepper. The principle of good faith and fair dealing was added to common law in the Uniform Commercial Code, and UNIDROIT principle is just internationalizing that concept. Right.

Andrew: Well, that's probably a wonderful way to finish on the principles. Just before we finish our podcast, though, tell us a little bit about what you do when you're not thinking about the principles of, you know, UNIDROIT principles.

Eckart: First, I have the luck that I met the right person, my wife, in the right moment in 35 years. So I have a very nice family life four children, a lot of happiness there. Then we have a great sailing boat. I met my wife already in Norway when sailing. So on board, she's a skipper and we have a lot of fun and we're about to sail again to Sweden this year. And then I started playing golf also during COVID. So lots of sports, lots of fun, a lot of music.

Andrew: Well, it sounds like it's, well, certainly when I was in Hamburg, I had a fantastic time and it's a lovely city to live in. So it's been fantastic speaking with you and hearing about the principles. And for those who haven't heard about them before, I hope you found that insightful. I certainly have. I keep learning things every time I talk to you, Eckart. And thank you very much again for your time, giving over to this. Thank you very much. 

Eckart: Thank you so much.

Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email [email protected]. 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 podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

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Global chair of Reed Smith’s international arbitration practice, Peter Rosher, welcomes Latin Lawyer’s 2024 Lifetime Achievement Award winner (and former chair of the Reed Smith international arbitration practice) José Astigarraga for a conversation reflecting on José’s arbitral career to date. José shares his advice to young lawyers entering the profession, his motivation for focusing on international disputes, his career milestones and his insights on future trends in the field.

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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. And with that, let's get started. 

Peter: Hello, everyone. And welcome to another episode of Arbitral Insights. And this time I say welcome to our viewers as well as to our listeners, because for the first time, we are on the screen. It's a video podcast as well as an audio podcast. As you will have heard. In the introduction I’m Peter Rosher. And since 2021 I’ve had the privilege of chairing Reed Smith's Global international arbitration practice. And in 2021, I stepped in to fill some very big shoes from the former chair. And that is José Astigarraga and José was chair from 2017 to 2021 I'm absolutely thrilled today to welcome José . For an informal chat. José really needs little if any introduction. He has been continuously. Recognized by all of the. Major publications and directories over Many, many years and that's GAR, Chambers, Latin Lawyer and also Latinvex And of course, most recently. José received the prestigious Lifetime Achievement Award from. Latin Lawyer for his contributions to international arbitration. Today I'm just going to have a chat with José. About his journey. Over the. Decades in international arbitration also going to seek his wise counsel for. Young practitioners. Coming into the profession and also. Ask for some of his insights. I'm looking into a crystal ball as to where he sees things going for international arbitration. So without further ado, I firstly a warm welcome José . It's great to see you.

José: Well, Peter, likewise. Thank you so much for those kind words. Much appreciate it. Totally justified. José if we go back and we'll go back now to the last century and the last decades of the last century. When you started one of the first international arbitration practices at a Florida law firm. And then in I think it was around the year 2000. So the beginning of this century you actually started, a boutique firm that was dedicated to international disputes and in particular, of course, international arbitration. I’d just be interested to hear sort of what motivated that. Well Peter, it's a good question. You know, as you indicated to me that you'd like to do this interview, I sort of naturally reflected. And, one of the things I did reflect on, of course, as we talked about, is the journey. And this was certainly a very, very important milestone in my journey. When, as you mentioned, I had been a partner at a large Florida law firm and founded the arbitration practice there and then. You know, it was the year 2000, and I left to start a boutique which was a very different model. You know, there were several things that motivated it but, there were two primary ones. First, it was 1999 and It was a big year, right? And so you reflect on things and I guess when I was a kid, I thought about 1999 and I said, “Oh my God, I'm going to be an old man.” And all of a sudden 1999 was there. And I say, well, you know, maybe not so old. And I felt that there was still a ways to run. But really two primary ones that that drove me was that I could see the wave of international arbitration that was coming. It was already been developing during the beginning, in 1990. And I could see that other firms were already moving into the space. And by that I mean other big firms. And I thought, frankly, many of them would be very similar to one another. And I figured, one way to compete was to be different. Right? But I didn't want to, and therefore I thought I'll call it the boutique firm model. But I didn't want us to become some small law firm doing whatever work came in the door. I wanted us to be able to handle the interesting cases that were going to be. On the road ahead. and to compete against this slew of big firms that was coming our proposition was we were small, but intense and so the tagline that we adopted was the power of focus and our message was very simple we don’t to many things, we’re not full service, we’re not even full dispute But what we do, we do very well. And hence the power of focus. Right? And that, frankly, that message resonated with clients and the marketplace. And, you know, at annual awards, you mentioned GAR and Chambers and so on. And, you know, every annual either or these awards for the best law firm of this, best law firm of that. And, you know, frankly, year after year, the awards were, you know, you'd have five of the mega law firms and Astigarraga Davis, you know. So that's it's we were. Unique. And it was a proposition that, you know, served us well and help position us very, very well. The second reason, because I told you there were two factors. The second reason, Peter was. Honestly the creation of a collaborative culture. When we founded the firm, we adopted some first principles. You know, things like not tracking origination, things like not referring to my client, but our client. Saying we won the case, that I won the case, even though the reason the case was mostly won was because of the lawyer who happened to be speaking. And we banished any talk about my book of business. And, you know, these weren't just platitudes. It may sound Pollyannaish, Peter, but that really created an exceptional environment where we were able to focus all our competitive energies, you know, outwardly, instead of wasting time inwardly, you know, trying to one up one another and so on. And now I realize that's not workable for a big firm. But those first principles really served us very well. And I think that the great majority of persons who worked at Astigarraga Davis. Over the years, appreciated the environment and it worked well for us. So that that's the explanation for how Astigarraga Davis came to be. Let's fast forward 17 years to 2017. When Reed Smith was lucky enough. That you chose Reed Smith as a move at that stage. I'm interested in what motivated you to make that move? We're very glad that you did. And then I'll come back to something that you said about. Sort of the collaborative and practice not necessarily being something that would that you would associate automatically with big law and big firms. So first, what motivated you? Perfect. Sure. Absolutely. Well, I would say for one, as in all important decisions, there was or most important decisions, there wasn't one single factor. But if I would say to you one that was very, very important, it was the opportunity to do more with more. You know, so often, you know, in life you get asked to do more with less. Well, this is an opportunity for us, but in particular me to be able to do more with more. And what I meant was, you know, our boutique was regularly courted by big firms to see if we would be interested in joining them, and they were wonderful top tier firms. But Reed Smith offered something, a couple of things really, that were especially attractive. The first thing was they were interested in investing to develop their international arbitration practice and brand. Now let’s talk, you know, turkey here to say the American expression. I said, put your money where your mouth is. They were willing to invest in the practice. And that's very, very important where you're competing at the levels that, you know, the global firms compete. and second, they asked me to lead the practice, lead the effort. And to me, that was very attractive. I enjoy building stuff. And so I founded two practices at my original firm. I headed one practice at my original firm, built that. I founded a practice, at my original firm, did that, obviously in collaboration with my partners and so on, built Astigarraga Davis and so on. And built a successful boutique and that was fulfilling. And at Reed Smith I come to you. I had the opportunity to do more with more. I had the opportunity then to build something even bigger than Astigarraga Davis, now on a on a global scale, and I say, I I'll get back to that in a second, but so my point is that that opportunity to lead that effort was something that was very attractive. As well, the firm had all of the ingredients necessary to do that. When I looked at it right, they had excellent successful arbitration lawyers. It had excellent clients. It had an excellent platform. What it didn't have was the brand recognition fitting for a firm this size, and I felt like I could help change that.

Peter: Yeah, absolutely. I joined in May of 2017. So I think it was 3 or 4 months after you joined. And I remember we had scheduled to have a call that was, I think, you know, it's about 15 minutes. We were on the phone together for over an hour. I remember that distinctly, just sharing ideas. And we both were becoming familiar with the depth and the breadth of what was being done at Reed Smith. And I think we both shared that sort of amazement that they didn't have the brand that clearly was deserved. And we sort of shared that and also shared the necessity for. Real teamwork across geographies as well. Just coming back to that little bit about I mean, in your view. This isn't a provocative question, but did you succeed in elevating the the firm's arbitration brand?

José: No.

Peter: Okay. I wasn't expecting that. Why do you say that?

José: Let me go back to first principles at Astigarraga Davis Peter. It was a “we” that succeeded. The Reed Smith we succeeded in raising Reed Smith's arbitration brand, it wasn't me. It was because of Reed Smith lawyers. I'm going to embarrass you, such as you, Peter, that we succeeded in taking Reed Smith from unranked in international arbitration space, you got to call it, as they were. They were unranked in international arbitration, you know, globally and taking it from unranked to being one of the Global Arbitration Review's top 30 firms in the world in less than five years. And we did that. Now, to those of you who are listening or watching this podcast or watching it, please understand. Peter did not and does not know what my answers to the questions were or are going to be. I want to make that clear. So this is not some scripted commercial advertisement for Reed Smith that has all been prearranged. I really mean that genuinely. You know, you ask me Peter, I think the reason for your question is is look you're driving it okay. How do what what does it take to build an arbitration brand an arbitration practice to grow at the position of the marketplace? so I think those are interesting questions for the listeners and viewers, as to what it takes. And my answer, about you and lawyers like you goes directly to what it takes to build that successful brand and firm practice. So I yeah. Like I said, I don't mean to embarrass you, but I mean that very, very genuinely. Peter. My contribution, my contribution to the process was in seeing how the pieces that were available could fit together, what pieces were missing, okay, and how to communicate that message to the arbitration community about the caliber of lawyer and the quality of service that we could offer. So I that I, you know. Honestly, I'm very professionally satisfied that I made that contribution and I'm pleased to say that it worked. Like I said, you know, we wound up making it to the GAR 30, thanks to you and some of our other partners and lawyers. Two position for Reed Smith in that short period of time.

Peter: Again, one quality, the knowledge that something is. It is a constant with you. José, is your modesty? Which, I mean, it was your vision, and it was under your. Your leadership and just installing that culture across our geographies as well. So, and yeah, I mean, it's a real testimony to you. And but again, I'm not trying to be a sycophant, anything like that. I'm just saying it as it is, the reality. Okay, let's move this on into slightly different direction perhaps, and talk more about. These are a number of organizations. And also. Projects in the arbitration space. That you have been part of. I'm thinking of things like IBA’s, the conflict guidelines, and also something that you co-chaired, which was the. ICC’s task force on witness memory. In all of the work that you've done and sort of on such projects over the years, is there any 1 or 2 that stand out in particular?

José: Yeah it's interesting question Peter, because it's been a long road and I've worked on a multitude of projects, interesting projects over the years. So I can't say that any one project stands out. But I certainly can say two areas in particular stand out. The first is the issue of ethics and standards of practice. You know, I do think that there's despite the convergence of arbitral practice and customs across the world, we still have a wide range of views and standards in much of that world. Now, if you look at the mega cases, the type of cases that you work on, Peter. Fine. There is a reduced group of lawyers, law firms, clients, arbitrators. That operate within the bounds of what I will call fairly common ground. You know, in terms of how those you know, how it views the standards, the practices, the ethics and so on, how the lawyers comport themselves, conduct themselves and so on. But below that, below the mega cases, I and there are very significant arbitrations. I'm talking about even arbitrations of 100 million and above that, in which I see lawyers and arbitrators not operating on common ground. Things as simple as, you know, document production and What is which should be attendant to document production. And you know, what are the requirements with exhibiting documents and things like that. Or what are you know, appropriate representations to a tribunal. The required accuracy it that you know and things like that. And, and I think that there is still a wide difference and gap in terms of how. Lawyers and arbitrators that are participating in these very substantial cases. My point is, look, this is not, you know, sort of consumer level cases. These are important commercial cases were being handled under two, almost two different sets of rules. and the contests in quotes that are taking place are being played really according to different mindsets of what is the appropriate way to proceed. So I think we have a long way to go on that front. I think the second, you know, we talked about areas, you asked me about projects. I say, you know, what sort of areas, because within those areas I worked on multiple products relating to that. you know, I've spoken a lot about our reasoning process Peter. As you know, on cognitive biases and, you know, things like hindsight bias, confirmation bias, things that I regularly have seen affect the output of our process, which are awards right? And I continue to see the effects of awards on things like hindsight bias. And I don't think that we as a community talking about the global arbitral community or the regional and so on, community are doing as much as other professions are to reduce the effect of such errors. I, you know, point to medicine and they're very focused at trying to reduce these things. You know, I have clients that that use Six Sigma Peter, which is in the manufacturing process. They will not accept more than 3.4 defects per million outputs. And I know we're not going to manage something like that in with something as subjective as judgment, right? But I think we need to do more to reduce the effect. Extraneous factors such as our cognitive blinders and so on are having on our output on our awards. And I don't think that we're you know, we're really focused. We're aware of it. But I don't know that we're doing enough and certainly we're not measuring enough. To reduce those. So those would be the two areas that I think are very interesting are very ripe. And could use more attention from our community.

Peter: Okay, well, that segways quite nicely into another question that I have for you and it relates to. You gave a speech at the Fordham Law School in the autumn of last year. And that related to artificial intelligence and the impact that that will have on an international arbitration. So, I mean, really. Do you think that that is going to improve? the problems that there can be with sort of the arbitral decision making process and things like confirmation, a bias or hindsight bias.

José: Peter again, Interesting question. And it really is two aspects to that answer I did. I gave the, I was privileged to be asked to give the keynote at Fordham Law School to cap New York arbitration Week in November. And, you know, essentially, I spoke on I'll call it computer technology. Artificial intelligence is a very, you know, laden word right now lots of baggage, right. With lots of people being concerned about the damage that our artificial intelligence could do and so on. And this that's understandable. I then. And so when I. Presented my address, I said, look, let’s park the phrase artificial intelligence. Let's talk about how computer technology can help us. And I do think that there are two aspects that I will comment on in response to your question. The first one is you asked me, look, Can it improve our reasoning processes? And really, I fundamentally believe that there is just a set the stage real quick. the research has demonstrated in the past years that. Arbitrators. Judges. And all of us as human being, are subject to certain biases. Including things like anchoring, in which it may not even seem counterintuitive, but because we all know that a mathematical operation is a mathematical operation and should yield the same result each time. Well, it turns out that depending on how, for example, the anchoring where you start a mathematical operation, is it, you know, one times, two times three, you know, all the way up to say eight. You know, the human mind will typically yield at one result. But yet if you start with eight times, seven times, four times, you end that one. The human mind yields a bigger result, right? That's just a very simple example is done by Professor Kahneman, who won the Nobel Prize for his work in this area, to show that the human mind can be affected by the logic of the human mind, can be affected by how it is. You posed the question, for example. And there I posited that computer technology can help us to overcome this type of mental flaw that affects our reasoning, right? And I actually gave some examples, obviously. We're here on a very quick podcast. But you know, in the address I gave examples of where I had actually taken some of the cognitive tests. Very simple cognitive tests used on subjects to demonstrate cognitive biases and gave that same test to ChatGPT and then Bard and so on. And you know, they didn't fall victim to it. Even though the human mind does. And so I posited that. Computer technology. Can help us to improve our reasoning process. And. I and I, and I would add two things with respect to that. I want to acknowledge that the computer technology is not currently ready for that. My message in my speech was a call to the arbitration community, which was, you know, I would count the IBA, The ICC and other arbitral institutions that we should embrace computer technology now and focus on how we can improve our output. Right? Maybe not the Six Sigma, Can't we take advantage of this very powerful tool to help us improve the quality of the output that we are generating? The awards. So you can use computer technology as sort of a check and so on. But I told you I wanted to comment two things. And when you raise the subject of artificial intelligence, because I think and that was my message, Peter, that was the thrust of my speech at Fordham. But the there's a second aspect to this, and I think that to some degree are I'm generalizing, of course, and we're here just having fun. But I would say to some degree, our community is in denial. Right. And I have read a number of threads in discussion. So, you know. Artificial intelligence will never replace human judgment. You know, and so on. And. And I think it is only a matter of time. And AI is very nuanced. So be very precise. I think it's only a matter of time. And I would emphasize a fairly short time before systems are devised whereby users will be willing to entrust certain types of disputes involving substantial amounts of money to resolution by computers. I'm not saying, again, the type of case that you handle Peter, mega cases, bet your company cases and so on, but certainly commercial cases, business to business cases will, I believe there will come a point. Yeah, fairly. Fairly soon. In which, you know, users are going to be willing to do that. I didn't see all cases, and I didn't also can say, you know, artificial intelligence or simply going to trust it here. You tell me what the outcome is. Let me give you an example. One of the interesting things I heard, Peter, while I was co-chairing the ICC Task Force on Witness Memory, was from arbitrators who considered that their default is that documents are the best evidence and that witness evidence should be received only if necessary. You know, there's I'm going to decide this on the documents. And really, the only reason I want to hear from witnesses is if I need to. Otherwise I can decipher the documents now. These are rational, intelligent persons serving as arbitrators who are being appointed by users, knowing that that's the default of the individual. And my point is that there are users who are comfortable appointing persons, arbitrators who default to deciding cases based solely on documents. And I want to make sure my point is clear. I'm not taking issue with anyone saying a particular case should be decided on documents. My point is that there are users in the community who are comfortable with that methodology. Well, if that is the case, then they. Then I think it's a very short leap, a very fairly small leap to think that someone can design a, an algorithm that can draw from the vast trove of arbitral jurisprudence and render arbitral, be prepared to render arbitral justice based solely on the documents. so the I'm not saying only in those cases where that, you know, it's only in cases that where, someone is strictly willing to do documents. My point is that easily that's one simple way in which I can say, look, it's currently being done on the documents in some in some realms, commercial cases. Therefore, what is the difference given what artificial intelligence computer technology is doing right now, to simply say, okay, well, you distill it from the vast trove of arbitral jurisprudence that's out there, and therefore, you know that we could easily have users being willing to entrust the decision to that, because I think the attraction of quicker results and lower cost are going to be hugely attractive. And I think that a certain band of users, you know, including big companies, would be prepared to sacrifice what I'll call perfect or bespoke arbitral justice. Like, you know, the type of cases you handle for more efficient and cheaper arbitral justice that renders an award that I call that’s good enough. So, you know, I want to be a little bit provocative. In raising that because I do think it's real.

Peter: I totally agree. Speaking of which, A client recently, and this is construction industry. So big construction disputes when they come about. That was talking about in these disputes. They accept sampling at times and was equating sampling with why not with artificial intelligence with something. Because there's a cost benefit to that. So now I think you're absolutely right. And I think we're talking about a couple of years, not talking about a decade or two decades. Well coming back to and this will make you blush again. Your lifetime achievement award from Latin Lawyer. I mean, looking back on your career. I mean, is there anything you're particularly proud of?

José: You know, as a lawyer. Thank you. Peter, you're kind to ask this. You know, as a lawyer, I can think of a number of things. Yes. you know, one first and foremost, knowing that I help good clients solve some difficult problems. You know, I it is a very rewarding thing when you've got somebody that is stressed and is concerned and, you know, you were able to help them find a way forward. Building Astigarraga Davis you know to its place in the marketplace. Along with my partners. Yes, that’s something that gave me a deep professional satisfaction and the contributions I made at Reed Smith Peter, helping build the arbitration practice and brand. But if I had to choose, if I had to choose, I would say that making a contribution to. The development of international arbitration in Latin America. And I don't want to overstate. I but the arbitration of Latin America is a phenomenal success. What it is independently of, you know, my ever existing. But my point is that, you know, having a functioning dispute resolution system is critical to economic development. Latin America is developing economically. It needs more economic development and so on. And today, you know, our international arbitration functions very well in the region where that wasn't the case, you know, 30 or 40 years ago. and it Today it's one of the leading regions of the world, some of the biggest cases in the world, some of the most sophisticated cases, top arbitrators, top Latin American lawyers, and so on. I'd like to think that I played a small part, Peter, in that through the knowledge transfer, through the promoting initiatives and activities that I did when I had opportunities to to serve in positions of leadership and so on. So that, you know, is is something that is, you know, brought me some degree of fulfillment or satisfaction of knowing that maybe I made a small contribution to that process.

Peter: I mean, I observed directly over the years. The importance that you give to. The younger generation coming up, but just how much you invested in. Younger talent at Reed Smith. I mean, what advice would you give to young lawyers coming into the profession? There's a pause.

José:Yeah, yeah, that’s a big question right? Okay. You know, you can give advice, I suppose, on many levels. At two levels, you know, you know. So I'll focus on this one on the, you know, essentially, I wouldn't even say as a lawyer, I would just say almost. As life advice, but they're all kind of integrated, aren't they? So what advice would I give to young lawyers entering the profession? You know, I would say four things, Peter. First life is too short to spend it doing something that doesn't fulfill you. You know many if most people on this earth, unfortunately don't have the luxury of choosing how they want to spend their lives. You know, be that for societal reasons, family reasons, health reasons, lack of opportunity. You know, any number. We just have no choice, right? That's the fate in life. But many people who have the luxury of thinking about becoming a lawyer do have choices. And what I would say is, you know, if being a lawyer doesn't fulfill you, you know, find something else that does. Because, you know, life success is going to seem very empty if at the end of the day, you haven't enjoyed what you were doing. The second thing that I would say is, you know, make a plan. Saint-Exupery said, a goal without a plan, it's just a wish, right? So make a plan. Figure out what you want and how to get there. The third thing that I would say, Peter, is think big. And what I mean by that is I think sometimes we don't achieve our full potential because we self limit ourselves. Right? And we limit ourselves in our own mind. And so I would say to you, to someone that would ask for this advice, I say, you know, think big. And fourth, and, you know, maybe most importantly I would say, Peter, is think long term. And what I mean by that is that along the way, you know, you're going to be faced with difficult decisions that bear on your ethics and your values. And sometimes it's difficult to do the right thing. Hard decisions, I find that hard decisions become less hard. When you think about the long term effect that your choice is going to have on you, on your life or on your career or on your loved ones, and so on. So, you know, if I had to encapsulate, you know, things that I wish I guess I had, you know, known at that stage of my career or be reminded of and born, you know, clearly in mind it would be those, you know, those suggestions.

Peter: Okay. Well, I would say i’d have been very grateful for that advice in my 20s and 30s. Over the decades, I mean, you've seen. Arbitration evolve significantly. And so now I'm just going to ask you all to gaze into your crystal ball. And what do you think lies ahead for international arbitration?

José: You bet. It's always a fun exercise, isn't it? Because you know you'll never be proven wrong, right? You'll be gone by the time you're proven wrong. I would say it's first international arbitration has a very robust road ahead, very full stop. But that's really only half the answer, right? I was privileged to practice during the dawn of the golden age of arbitration. And what I mean by that is, you know, when I started, you know, I saw arbitration, I didn't fall into international arbitration. I saw the wave of arbitration coming in the future as globalization was coming and so on. And I decided that I wanted to be that right. And it really was the dawn, right? So globalization takes off. Arbitration took off like a rocket, especially in regions like Latin America. There were lots of things that were being cut out of whole cloth. There were vacuums that needed to be filled with soft law and terrific projects going on. Like, you know, the IBA conflicts guidelines, the evidence rules and so on. Law reform was happening. Lawyers were hungry for knowledge in these regions and so on. And that still goes on. There are still vacuums. There are still, you know, law reform and so on, but it's in a much more mature and orderly way, right? So, you know, the opportunities are not, there's not as much, I'll call it low hanging fruit now, as there was. So that makes it tougher for young lawyers, you know, to compete and say for any lawyers to compete or set up, but particularly young lawyers who are interested in getting into this area. in fact, I was just reading. Gary Born's introduction to a book called 40 under 40. And in which he wrote, I actually I was looking at it here and so Gary Born wrote, gaining recognition in today's international market is difficult. Arbitration market is difficult. If there was ever a world where a cozy club of practitioners dominated the field, that has been transformed into an intensely competitive worldwide market, with excellent lawyers coming from every corner of the globe? And that's the reality of the current marketplace.

Peter: Absolutely.

José: So it makes it much tougher. And that really is exactly my point. The competition is very different now. So if you're a young lawyer or any lawyer, you know, you got to take that into account. So the challenge is how do you compete. As you know, the transfer, this transfer of knowledge, this development of expertise, you know, more and more lawyers become more and more sophisticated in terms of this area How do you compete with that? and you know, I can pin it down. I'll give you a specific example in terms of Latin America. In Latin America, you now have excellent law firms handling international arbitrations, very substantial cases that 20 years ago would have been handled by the international non Latin American law firms. That's natural. That process is going to happen in Latin America. It's going to happen in other regions. It might be a little bit behind Latin America in terms of their development of the arbitral culture. you know, language at one time, international law, many international arbitrations were being carried out in English. But as lawyers acquire the competence and the skills, and, and users gain the leverage to negotiate clauses, you're going to have more and more arbitrations in local language, in local centers, important cases. And that certainly is the case in Latin America now. Right? The mega transactions you do, I think is still going to be in English. But I see a Pac-Man, probably dating myself, you know, Pacman was just little video game, right? That would wind up eating its way and I see a Pac-Man of the local language and local centers eating their way up the food chain in the size and sophistication of cases. So to me, the idea of focus and specialization, Yeah. sort of the founding, idea of Astigarraga Davis, is all the more important, whether it's a boutique or whether you're talking about an individual lawyer within the context of one of the large firms. I think that specialization and focus is more important than ever. The big companies certainly look to experience and expertise. And I think the level, that level of analysis is going to work its way down to the lower dollar thresholds, in other words, beyond the mega cases and so on. So that even in non mega cases, clients are going to be scrutinizing the expertise and experience of the lawyers with the particular case. So my point just to conclude, Peter, is that I think any lawyer in this area, particularly the young lawyers, we've got to figure out how they're going to compete in a much more mature and crowded arbitration marketplace. But, you know, simply sort of, okay, I'm going to do arbitration work. I don't think is a winning recipe long term.

Peter: Unfortunately, we are going to have to come to a to an end. And as you know, José we’re trying to keep you at Reed Smith for as long as possible. So this next question hurts me. But what's next for you José?

José: Well thank you Peter. As you know, I. My heart is torn. You know how much I've enjoyed working with you and and our other colleagues at Reed Smith. And this. So. But. You know it. I think it's just gives me an opportunity for another reinvention, as I call it. And. over the years, Peter, my years as an arbitration advocate. I did serve as an arbitrator. I chaired tribunals. Served as sole arbitrator and as wing and so on. I'm eager to get back to that side of the table. And the reason I say get back to that side of the table is because around I had done all that, you know, up to about 2011. Around 2011, having served as arbitrator, I decided that I was enjoying my work as counsel so much that I started to decline arbitral appointments and accepted just a few in the ensuing years, you know, as I put it at that time. And I was actually asked this. When I was on the stage and on a panel. I wanted to be Messi. Or to use the UK analogy, I wanted to be Beckham, right? So I, you know, give me the ball. I don't want to be the, you know, the person blowing the whistle and throwing the little flag down. You know, I wanted to have the adrenaline of the ball and it was it was marvelous. I mean, I just so enjoyed my work as advocate. And as I put it, the adrenaline was calling me. But, you know, Covid comes along. I feel that I've accomplished, what, you know, if my point about Covid is, you know, it was an opportunity reflect on life and so on. And, you know, I felt that I had accomplished what I wanted to as an advocate, and helping my clients and, you know, had enjoyed my work as arbitrator. And so I just decided that, you know, I'd be ready to make a contribution to the arbitral system. You know, now, you know, get back to whistleblowing. and but always having fresh in my mind, what, you know, the burden and the, how tough it is to be a, you know, an advocate. You know, so I'm looking I will be looking as arbitrator, you know, never losing sight of how tough that others that that role is. The other thing and I'll conclude with this, Peter, the other thing that, you know, has intrigued me and that I loved in the course of my work as advocate, was negotiation. Right? And, always as well, the kept in mind that the object of what we were doing was not to litigate or arbitrate, but it was to find solutions for acceptable solutions for our clients. and so I've always had a great interest in mediation, and I will confess to you that I did not succeed in finding, you know, the the mediators that I felt were what we needed in the international cases, that I was handling, which, of course, were in great measure, you know, focused in a cross-cultural, you know, Latin American Spanish, you know, and so on, context. And so I think that with my background, in my bilingualism, my biculturalism and so on, I hope that I can make a contribution, you know, on that side as well. Be interesting to see how that unfolds.

Peter: Okay. Well, okay. Don't just bend it like Beckham. It'll be, bend it like Astigarraga right? So I think on that note, I'll just say. And it's been terrific chatting with you José Thank you. From me and from all of us at Reed Smith and I think that I'd like to thank everybody for joining us for this video podcast today. So thank you very much. Bye bye.

José: Thank you Peter. Bye, everyone.

Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email [email protected]. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the costs 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 podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

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Transcript is auto-generated.

New York international arbitration partner J.P. Duffy discusses the Singapore International Arbitration Centre’s (SIAC) current accomplishments and future plans for the Americas with SIAC’s registrar, Kevin Nash, and SIAC’s director and head of the Americas, Adriana Uson.

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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. And with that, let's get started. 

J.P.: Welcome back to the next episode of Arbitral Insights, in which we'll discuss the Singapore International Arbitration Center's America Initiative with Kevin Nash, who is SIAC's registrar, and Adriana Uson, who is the SIAC's director and head for the Americas. Let me begin by introducing myself. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration seated around the the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England and Wales, and the DIFC courts in Dubai, where I previously practiced. I routinely represent clients in arbitrations involving India, the GCC, and East Asia, and I also had the good fortune to be listed on the SIAC arbitrator roster. As I mentioned, with me today is, first, Kevin Nash. Kevin is a Canadian lawyer and the SIAC's Registrar. As Registrar, Kevin leads the 25-member SIAC Secretariat in the provision of case management services. Over the course of the past decade, Kevin has overseen the administration of thousands of international cases under all versions of the SIAC and UNCITRAL rules. Under the Singapore International Arbitration Act 1994, Kevin is also gazetted as an appointing authority, serves as the statutory taxation authority, and is empowered to authenticate and certify awards and arbitration agreements. And last but not least is Adriana Uson. Adriana Uson is the director and head of the Americas for the SIAC, where she leads and oversees SIAC's activities in North and Latin America. In 2020, Adriana established the SIAC's first office outside of Asia in New York. She has more than a decade of experience in dispute resolution and and has served as counsel on international arbitrations, as arbitrator, and as the institutional representative. Adriana first joined SIAC as counsel, during which time she administered hundreds of cases across a range of seats and governing laws. She was also involved in the drafting of the SIAC Rules 2016 draft, SIAC Investment Arbitration Rules 2017, and the SIAC Practice Note on Third-Party Funding. Prior to rejoining the SIAC, Adriana was a disputes lawyer at a global law firm where she advised and represented clients in international arbitrations conducted under the auspices of the SIAC, the ICC, ICSID, and the HKIAC. So as you can tell, we have a wealth of knowledge with us today, and we're really, really fortunate to have both Kevin and Adriana with us today. So with that, let's jump right in and hear from our guests. So let me just set the stage a bit by giving some of the SIAC background, and then we'll have Kevin and Adriana chime in on that a bit. So the SIAC is a not-for-profit arbitral administrator that was established in 1994 in Singapore with the objective of providing a neutral, efficient, and reliable dispute resolution institution in Asia. Kevin, can you give us a bit of background on what's gone on with the SIAC over the last 33 years, I guess. 

Kevin: Sure. Thanks, J.P. It's great to be here. Thank you to you and to Reed Smith. I'm actually a listener to this podcast, so it's really good to be here. Giving a bit of background, 33 years of operation, SIAC started as functionally a regional center, and you can really see a very compelling growth trajectory. The real proper administration of SIAC's cases started in 2007. You can then see sets of rules in 2010, 2013, 2016. And now we're in the draft public consultation for the seventh edition of the SIAC rules. Along the way, we went in the Queen Mary University of London White and Case Survey is the second most preferred arbitral institution in the world and the most preferred in Asia. And that's really what has helped bring SIAC to global prominence, that we have this expertise in Asia, but we also have parties from all around the world. 

J.P.: That's great. And it has been meteoric growth. It's been really impressive to watch. The SIAC didn't exist, as you say, when I first started practicing, and now it's almost default in Asia, if not the default for most parties. And let's talk about that growth outside of Asia a bit. So while the SIAC began in Singapore and has had a lot of acceptance in Asian markets, it is not simply an Asian administrator, as you say. It's really accepted around the globe. What's really been the Singapore secret to that, Kevin? 

Kevin: I suppose that's the million-dollar question, or when you look at some of SIAC's cases, is the $7 billion or $10 billion question, is what does Singapore and SIAC have been able to do to put itself at the forefront of international arbitration? When I look at the Singapore arbitration ecosystem, I see language from decisions like the rule of law is applied without fear or favor, and there is an unequivocal judicial philosophy of the facilitation and promotion of arbitration. So it's really the entire ecosystem in Singapore that has helped build up SIAC. One of the most important moments, and Adriana and I were quite involved in this, was in the SIAC rules 2016. Previously, it used to be a default Singapore seat of arbitration. So unless the parties otherwise agreed, if it was left silent, then it would default to a Singapore seat. But because of the popularity in the Americas, the then President Gary Bourne knew that for us to really grow as a global institution, that had to be left to the parties or to the tribunal to decide. So we've got the benefit of the Singapore ecosystem. So you have a very pro-arbitration bench. You have all of the hardware and software, modern legislation based on the UNCITRAL model law. And to a certain degree, it's based on where we are in the world. Singapore, much like New York, is an international center for finance. Singapore has that reputation of effectively being Switzerland in Southeast Asia. And maybe you just can almost encapsulate it by putting out a question that if you were a significant U.S. Entity, would you be comfortable being a moving claimant against a very prominent Singapore respondent? And I think that the answer is overwhelmingly yes. Parties know that they're going to get a fair adjudication of their dispute when they come to Singapore, and certainly when they file a case at SIAC. When I look at that 25 member SIAC secretariat, I am quite moved by the fact that we only have one Singaporean lawyer. So the rest of the Singapore SIAC secretariat are all lawyers qualified in 13 jurisdictions around the world. So I think that gives parties the confidence. 

J.P.: Now, Kevin, where are some of those lawyers qualified in the secretariat? 

Kevin: You know, I would have to run through the jurisdictions, India, Indonesia, United States, UK, Vietnam, Ecuador, Georgia. I feel like I'm missing a few, Canada, Malaysia. So anywhere in the world where we have our top jurisdictions and particularly where we have those applicable laws at play, we really need to have a lawyer in the secretariat qualified in those jurisdictions. I can think of five years ago in Vietnam, a very fast-growing jurisdiction, because there's a lot of procedural nuances in that jurisdiction, surely we need to have a Vietnamese qualified lawyer. China, we have a fair amount of Chinese language arbitration, so we need to have Chinese qualified counsel. And certainly, we have so many cases involving Indian parties, so we have three Indian qualified lawyers in the secretariat as well. 

J.P.: Well, that certainly gives a good overview of the breadth that the SIAC covers. And I think just to reinforce that a bit, let's talk about some of the offices that the SIAC has outside of Singapore before we get to the one in New York. So, am I correct that in 2013, SIAC opened up its first overseas office in Mumbai and then Seoul? Is that right? Seoul, Korea? 

Kevin: That's right. 

J.P.: And then in 2016, SIAC opened up in Shanghai, correct? 

Kevin: Yep. 

J.P.: And then in 2017, SIAC opened up a second office in Gujarat in India, right? 

Kevin: Also correct, yeah. 

J.P.: Now, what was the impetus for opening all those offices? 

Kevin: Really, it's to have a presence on the ground. So one thing that we do very well at SIAC is have a lot of analytics looking at economic indicators. We're looking at both sides of the contract. So you're seeing where, for instance, Indian parties, where those inflows and outflows of economic activity is happening. And I think that it matters to users to have a presence on the ground. I can see with the incredible amount of interest that we have in the Americas with Adriana on the ground here. So whether it's being able to call and say that you're filing a notice, I'm starting to think that notwithstanding the fact that I'm the Registrar, that more American users are actually liaising with Adriana. In fact, we had a purely European dispute where they were calling Adriana to say, hey, we filed a notice. So I think that it's made a difference to have that on the ground presence. And we're looking at perhaps a few other offices that are going to be opened up in the reasonably near future. I think what's important for the Americas and one thing that I've talked about publicly quite a bit is potentially that move to setting up a case management office in New York. 

J.P.: Interesting. Well, let's talk about that New York office then. So now, Adriana, you opened up the New York, the SIAC New York office in December of 2020, correct? 

Adriana: Yeah, that's correct, J.P. 

J.P.: That's a challenging timing. How did you find that process? 

Adriana: Oh, that was really a very challenging time. I think that was the height of the pandemic, if I wasn't mistaken, back in 2020. And so what we did was really to leverage off technology, J.P. I think that's even the first time where we met was by Zoom. So what we've done is that we've used Zoom, we've used webinar to engage with our users. I remember that time I probably had a Zoom meeting every single day for over a year or even two years. And really, the challenge was creating that rapport and that relationship to deepen those relationships during that time. 

J.P.: Yeah, that was certainly a challenging time. And I do recall meeting for the first time by Zoom. Now, Adriana, does the New York office, I think Kevin just touched on this, but does Does the New York office administer cases as well? 

Adriana: Not at the moment, J.P., but we're looking into the possibility of administering cases from our New York office to provide real-time access for our users in America. So that's something to watch out for. 

J.P.: Good. Well, we'll keep a heads up for that one. Now, what then was the impetus for opening the New York office? What was its purpose when you decided to open it in December of 2020? 

Adriana: I think really, J.P., it's because of the growing number of American parties that we have been seeing in our docket. So every single year for the last 13 years, American parties actually ranked amongst our top five users. And there are certain years where you'll see that American parties would even rank number one amongst our foreign users ahead of China and India, which is saying a lot. And that is without us even having any significant engagements in the US. So it was us ripe for us to open an office during that time. It just so happened that it happened right smack at the height of the pandemic. But apart from that, our relationships with the Americans or the US is quite strong. As you know, our immediate past president, Gary Bourne, is an American. Our current president, Lucy Reed, is also a New Yorker. The number three or sometimes fourth most appointed arbitrator by nationality with SIAC are Americans as well. We have American counsel qualified at the secretariat, and we've been really engaging with a lot of U.S. law firms in SIAC. So I think with all of these, it just made sense for us to open an office in New York. 

J.P.: Yeah, I think it tends to give a lot of comfort to U.S. parties when they know they have a local contact that they can reach out to. And certainly that helps with with, you know, explaining to a US party, like, yeah, this is not this might be an international undertaking. But there's an office right here in New York. Here's Adriana, here's someone we can reach out to. Now with that, Adriana, what is your day to day look like in the New York office, if you don't mind sharing that with the audience? 

Adriana: Oh, I mean, I wouldn't even know myself out my day would would go but typically it would be speaking with our stakeholders. So be it, you know, at a law firm or roundtable session with some corporates or lecturing in some universities. Mostly I'm traveling. So SIAC, New York office really covers from Canada all the way to Chile, including Caribbean, Central America. So then you'll find me in different parts of America. And I think that that's how it looks like at the moment. 

J.P.: Yeah, I would imagine it's probably a pretty exciting and pretty action-packed day. Okay. Well, let me just transition a bit so that people in the audience can get a bit of a sense because we were talking about case administration and, you know, for instance, Kevin mentioned, you know, a purely European case in which people were reaching out to you. How many cases did SIAC administer in 2023? 

Kevin: Yeah thanks, J.P. I should also say, reaching back to the past question that much of Adriana's day involves me reaching out to her, asking about US arbitrators, a filing that's coming in. But moving to the question, how many cases SIAC administered? So we had 663 cases in 2023. Our previous high had been more than a thousand cases. And this is really significant when you you think that we were starting from the place of two cases filed in 1991 when we first opened our doors. Unsurprisingly, both of those would have been ad hoc conversion cases. And you have some of these cases that might just be a few thousand dollars, two cases, some of the big major projects and giga projects in the mini billions. From a case management standpoint, what is critical for us, the independent and neutral SIAC secretariat, is you treat every case the same. Every case gets the same amount of care and attention. And that's what we've really tried to focus on when we've moved from a regional institution to a global institution. The idea of this accessibility, where we're still treating every case like it is the most important case on the docket. Counsel can reach out to us, certainly not ex parte, but can certainly reach out to us on matters of procedure, the same with arbitrators. And that's been really important to our growth. At any one time, we have more than a thousand active cases. And now in most years, we're getting more than 500 cases a year, which from an international caseload standpoint, really puts us at the top of the chart for arbitral institutions. 

J.P.: Yeah, that's quite an impressive growth and impressive numbers. Now, are there particular industries that many of those cases come from, or are there particular industries that you see more cases come from? I'd just be interested to know. 

Kevin: J.P., it really runs the gamut and our only limitation really is arbitrability. So you could have cases arising out of contracts, treaties, investment contracts, and it's a lot of mirroring with these economic corridors. So there's certainly a lot of international trade. I can remember during the pandemic, it felt like I was becoming an expert in the sale and purchase of masks. We had lots of those cases. We get some of the big construction and engineering cases, corporate, JV, maritime and shipping. Singapore has the second largest container port in the world. So we really want to be able to administer any kind of case with any type of law applying and increasingly in different languages of the arbitration. 

J.P.: Well, that's interesting. It's unsurprising, I guess, that some of the caseload would follow economic trends. And it's also unsurprising that some of the cases would just follow what goes on in Singapore generally. Now, I think you mentioned earlier some of the top users for SIAC are China, India, the US. What countries were the top five users in 2023? 

Kevin: In 2023, we had lots of cases from mainland China, Hong Kong, Americas, India. What I found very compelling in those 2023 statistics is that our fifth most frequent user was Emirati parties. And often we had Emirati parties on both sides of the contract. And it's really a hallmark of the flexibility of international arbitration. So you may have UAE parties on both sides. They may choose an onshore or offshore seat in the UAE. They may choose a Singapore seat. And then the rest of the top 10 and those users that are starting to really matter is really a balance between common law jurisdictions and civil law jurisdictions. And if you follow SIAC and if you chart SIAC, what we really try to do is give effect to both the common law tradition and the civil law tradition. What we have been seeing increasingly with US parties and in large part to the work of Adriana is some of those real chunky disputes are coming from the Americas. When you're looking at the highest summon dispute, the mean summon dispute, the median summon dispute, we are getting some of those very significant cases from the Americas. 

J.P.: Well, that's really interesting. And before we move on to the Americas, I just want to hit on a couple of points. And I guess my first question is, are you seeing trends in where cases are coming from in countries? Like, for instance, you just mentioned the top five user being Emirati. Would that have been the case a few years ago as well, or is that a newer development? 

Kevin: We've seen some signs of interest from Emirati parties and in MENA generally, but it is because of the amount of work. And it's almost like you can look at some of the fastest growing economies and some of those most dynamic economies, and then you will start to see SIAC's caseload increase. And as I mentioned earlier, what's important for us is to be able to market both sides of the contract and have the users have confidence on both sides of the contract. So a classic case involving the Americas might be a party from the U.S. And an Indian party, a party from the U.S. And an ASEAN party, and a party from the U.S. and a Chinese party. What place are both of those parties going to choose increasingly at Singapore and SIAC?

J.P.: Yeah, that's great to hear and unsurprising, I guess. Now, are those transactions ones that would be, for instance, just global transactions, or are they ones that might have some sort of geographic center in Asia? 

Kevin: One of my favorite disputes that we've had recently was a functionally domestic US dispute where there were parallel court proceedings in the Pacific Northwest. I was looking for an Asian nexus. I have still yet to find it. So most of these, I mean, I mean, obviously, arbitration is the preferred method to resolve cross-border disputes, but in the UAE, in the Americas, a lot of times in India, these are domestic disputes where they're choosing Singapore and SIAC. And J.P., you might remember that it took some time for the Indian Supreme Court to give clarification on whether two Indian parties could choose a foreign seat. That clarification has now arrived. But even before that, because of the power of Singapore as a seat and the trust and confidence into the SIAC, Indian parties were still using SIAC for functionally domestic disputes. 

J.P.: Yeah, it's interesting because that has been the case for many, many years before the Indian Supreme Court clarified that, as you say, almost akin to the way that some Brazilian parties use other institutions as well as the SIAC for purely Brazilian domestic disputes. It's a vote of confidence in arbitration generally, I think, as well as the institution. Well, let's shift gears a bit and talk some more in a little more detail about the Americas. And Adriana, what, obviously, by opening an office here in New York, SIAC is targeting, you know, the US and New York in particular. But what other markets is SIAC targeting with its New York office? 

Adriana: J.P., there's really a lot of ground to cover in terms of targets. And as a starting point, SIAC's choice to open our America's office in New York was important. And it was very consequential and sent a message about our future direction. As all of us who live in the city would be aware, New York is the epicenter of so many things. So international arbitration and legal services, banking and finance, international trade, retailing, media and advertising, and so many others. But our users come from all over the US and across various sectors. Let's see if I can recall all of them. So over the past five years, we have seen parties from California, Connecticut, Delaware. Florida, Georgia, Illinois, Massachusetts, Maryland, New Hampshire, I think New Jersey, Nevada, North Carolina, Ohio. We've seen some from Texas, Virginia, and Washington, to name a few. We have been busy see deepening these relationships and engaging with the local arbitration communities, establishing partnerships such as with the Silicon Valley Arbitration and Mediation Center. But our New York office really covers the whole Americas from, like I said, from Canada to Chile. Latin America is especially exciting for us because of its increasing trade with Asia. Right now, we have cases coming from Belize, Brazil, Chile, Colombia, Ecuador. We also have cases from Mexico, Panama, and Uruguay, and we are eager to further expand our reach in the Americas. In fact, one of the first few things we did, J.P., when we opened the Americas office was to enter into partnerships with local centers such as the Lima Chamber of Commerce, the Santiago Arbitration and Mediation Center, and the Quito Chamber of Commerce, to name a few. And we have been very active in the region since. 

J.P.: That's really impressive. That's really impressive. And, you know, people, you know, think of the Americas and they, they sometimes think of a few large, a few large jurisdictions, but you're mentioning really a number of countries in the Americas that are seeing capital flows between, between their countries in Asia. Now, what are some of the, what are some of the largest, Latin American markets that you're seeing activity in at the moment, other than the ones, you know, I think you just mentioned a few, but are there others that you're seeing in particular as ones that are producing a lot of disputes? 

Adriana: I would say there has been an uptick in our Mexican and Brazilian caseloads. Kevin, you've seen a lot of these cases coming in. I think there are queries coming in from Ecuador as well. That's an area that we're quite interested. In fact, we did hire an Ecuadorian counsel in our secretariat because of that. 

J.P.: Impressive. How about jurisdictions like Argentina and Peru? 

Adriana: Yeah, actually, Argentina and Peru, one of our main targets, especially Peru, I think in Peru, they've now mandated arbitration as part of their law for public contracts. There's a lot of arbitration going on in Peru. And just before actually this podcast, I was on a webinar for the Peruvian Institute. So we are very active in Peru as well. 

J.P.: That's great. I would assume Colombia is an important market as well. well? 

Adriana: Yes, absolutely. Colombia, Panama, because of the Asian trade, that's also a very important market for us. 

J.P.: Interesting. And are you seeing disputes come out of issues involving the canal in Panama? 

Kevin: We actually have J.P. And I should say, because Adriana has been in this role for, is it three years? 

Adriana: Yeah. 

Kevin: In or around. There is that sort of timeline when SIAC clauses go into contracts and when you get the eventual dispute. And we have very strong indicators for many of those jurisdictions that you named that some significant entities are starting to use SIAC as their preferred dispute resolution choice. And that's one of the challenges of marketing an institution because you actually don't want parties to go to dispute. You hope that that they don't have to go to an arbitration, but that they have confidence to use SIAC arbitration clauses. So we're just as happy when we know if it's an entity from Panama, Peru, Argentina, as the case may be, that they're starting to use SIAC clauses. And whether or not that goes to a dispute, hopefully it doesn't. Maybe they're able to settle on their disputes or because of the confidence in SIAC as an institution, the parties tend to keep to their bargains because they know if they go to arbitration, it's likely going to be very fast and very cost effective for the counterparty. 

J.P.: Yeah, well, that is certainly the case. I think we all always hope when we're drafting arbitration clauses that they never get invoked. But, you know, it's certainly my experience, at least, that, you know, 15 to 20% of those will end up at a certain point in time in arbitration. And so it's good to see that SIAC clauses are being written. And I know certainly clients that we have are extremely interested in that. And not simply when there's any sort of, you know, Asian nexus. It can be just about anything at this point. Well, that raises a really good question, which is, what would you say, Adriana and Kevin, have been the biggest accomplishments that SIAC has had in the Americas since opening? I mean, it's been a really challenging time, but you've obviously put SIAC on the map even more so in the Americas. So what would you see as the biggest accomplishment in the last, I guess, three or four years? 

Kevin: J.P., I might just start and then I'll pass it over to Adriana. So the joke that I always make internally about Adriana setting up the New York office is that she effectively came here with a paperclip and ended up bartering her way into having a very well-running office. So certainly that was a challenge for Adriana coming all the way from Singapore and being able to set up this vibrant office that is doing some really interesting things. Effectively just with a paperclip and bordering her way and navigating New York City to get this office up and running. But I'll pass it over to Adriana. 

Adriana: Thanks, Kevin. I guess aside from what Kevin just said, I would say getting new users from new jurisdictions would be one of our biggest accomplishments, J.P. Since opening the New York office in December 2020, we have gained new users from places like Argentina with the first ever case from that jurisdiction filed just last year and Colombia, which we spoke about. What's interesting about the case involving Colombia is that the counterparty is from Switzerland, showing the potential for cases in the Americas with no Asian nexus. We're also seeing a rising trend in cases from Panama. I think we've touched on that earlier. And more and more of our clauses are also making their way into contracts across Latin America. Just yesterday, we received an email from a firm in Guayaquil and Quito informing forming us, they've included SIAC clauses across a suite of contracts. A Spanish law firm with Latin American clients recently also indicated they're trying SIAC, including us in contracts for the first time. Peru, like. I mentioned earlier, a Peruvian law firm also told us that they're currently handling a contract with an SIAC clause for the first time. So this could be SIAC's first Peruvian case if the clause is activated. There was also a prominent U.S. entertainment company that requested information on SIAC as it considers switching from U.S. arbitral centers to SIAC. And speaking on the U.S., we've seen a rise in filings since the launch of our New York office. Another notable trend is that But while SIAC is often chosen when Asian parties are involved in, you know, repeating what Kevin just said, we're now handling cases between American parties or between Americans and Europeans without any Singapore-Asian connection. And I think this trend really highlights SIAC's growing international reach and reputation. 

J.P.: Well, that is certainly impressive meteoric growth. And, you know, it's an old, it's a trite old song lyric, but the song lyric that if you can make it here, you can make it anywhere really is true. And you certainly have. Let me ask then just a concluding question for you, Adriana. And obviously, Kevin, you should feel free to jump in as well. But where would you like to see the New York SIAC office in, say, five years? What would you think that looks like? 

Adriana: I think in the next five years, we see SIAC becoming a major player in the arbitration landscape across the Americas. We're focused on establishing a strong presence and building solid relationships with businesses, legal professionals, and arbitration practitioners throughout North and South America. 

J.P.: Good. Kevin, anything you want to add there? 

Kevin: Maybe just that it almost goes to the mandate of an institution, is what is an institution really there for? And I think that we believe that we are there to promote the advantages of international arbitration and to really be a contributor. And that's what we've tried to be with the America's Office in New York, is to be a part of the international arbitration community. And one thing that I would say about where we want to be in five years or 10 years is from a case management standpoint, we just want to keep getting better and better. Arbitration is not like it was 10 years ago or 20 years ago. You have to be fast, thoughtful, precise. The case management matters. And that's what we focus on. And we're going to continue to listen to our users and try to be updating ourselves for 2024 beyond. 

J.P.: Well, those are all good goals to have. And I think we'll keep our ear to the ground for future developments on things like case management and new rules. And I think I'll exercise my prerogative to reserve my right to call you guys back to discuss those things in the near future, because I think there's been such incredible growth and so many incredible developments, and I'm sure there'll be more to discuss again in the near future. But with that, I think we should conclude our discussion. And I want to thank you both. I want to thank our guests, Kevin Nash and Adriana Uson from the SIAC for offering their invaluable insights. And I want to thank you, the listeners, for tuning in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. I'll take the initiative and speak for both Adriana and Kevin and say you should feel free to reach out to them as well about any questions you might have. We look forward to having you tune in for future episodes in the series. So thank you again to Adriana and Kevin, and we look forward to having you back. 

Adriana: Thank you, J.P. 

Kevin: Thank you. 

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 [email protected]. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the costs 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. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

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NYIAC Executive Director Rekha Rangachari discusses the NYIAC’s mission, structure, and initiatives with International Arbitration partner J.P. Duffy.

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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. And with that, let's get started. 

J.P.: Welcome back to the next episode of Arbitral Insights, in which we will discuss the New York International Arbitration Center with Rekha Rangachari, who is NYIAC's Executive Director. I'm J.P. Duffy. I'm an international arbitration partner at Reed Smith based in New York that acts as both counsel and arbitrator in international arbitration seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England and Wales, and the DIFC courts in Dubai, where I previously lived and practiced. I routinely represent clients in arbitrations involving a range of issues and frequently sit as an arbitrator in commercial disputes as well. I also have the good fortune to be a member of the NYIAC programming committee and previously served on NYIAC's board. With us today, as I mentioned earlier, is Rekha Rangachari, who served as the executive director for NYIAC since 2017. In that role, Rekha collaborates with stakeholders and thought leaders in the space to advance global scholarship and best practices, offers educational programming events, trainings, and operates world-class hearing facilities in Manhattan. Rekha is also actively engaged with the arbitration community as a global leader across bar associations and legal journals, and as an adjunct faculty member at both Fordham and Cardozo Law Schools. So we're thrilled to have Rekha today because she's obviously a wealth of knowledge and insight. So welcome, Rekha. 

Rekha: Thanks so much for having me, J.P., and to the Reed Smith team for putting this together. 

J.P.: Of course. Well, let me start by giving a little bit of background on the NYIAC for those that are not familiar. NYIAC is a nonprofit organization that rose out of a 2011 New York State Bar Association Task Force report that identified the need for a dedicated arbitral center in New York to maintain its position as a preeminent international law jurisdiction. The NYIAC, which opened in 2013, was the solution to that report and was formed to advance, strengthen, and promote international arbitration in New York generally. Unlike some other organizations, NYIAC offers world-class hearing facilities, but it doesn't administer cases or issue rules. 

Rekha: And J.P. I’ll jump in here and note, NYIAC's only administrative rule, titled NYIAC Arbitration Rule No. 1, that can be found on our website, provides that where parties are referred in an arbitration clause or agreement to NYIAC rules or administration, absent other agreement by the parties, the place of arbitration will be in New York. The case will be governed by UNCITRAL arbitration rules, and the hearings will take place unless impractical at NIA in New York. So I will add, in addition, we do get written in two clauses as if we are an administering body, which we are not. And so in those instances, it's good fortune that we have so many leading arbitral institutions in our backyard that we can reference if the parties agree. 

J.P.: Well, that's great. It's always simple for people like me to have just one rule to follow, which is see rule number one. And that's a really helpful bit of information because I've seen that as well, where people write it in not appreciating what NYIAC really does. And really, at the end of the day, I think the best way to characterize NYIAC is a thought leader. 

Rekha: I agree with that. Yep. 

J.P.: Yeah. And it develops programs and materials about international arbitration in New York, the application of New York law and international arbitration, and the recognition, enforcement, and implementation in New York of arbitral awards. So really at the end of the day, it's promoting New York as a seat and an arbitration center. And that was one of the guiding principles and the guiding raison d'etre for the NYIAC. So let me ask you a question then, Rekha, and you've started to touch on this, but really at the end of the day, what makes NYIAC different from other arbitral institutions? 

Rekha: Sure. Thanks for that. You know, there are a few bodies like it in the arbitration landscape, a dedicated center for global arbitration and for the community at large to advance, strengthen, and promote New York as an arbitral seat and venue, as well as New York as a lead choice of substantive law in contracts. NYIAC is independent of all arbitral institutions and of arbitration rules, but for rule number one. And since NYIAC's founding in 2013, together with the opening of the ICC's New York office, SICANA, we have really seen a growth in the use of all things New York. New York leads in this as the most frequently used and selected U.S. Law for international disputes, as well as the lead seat. Financially, as a structure, we're privately funded by founding firms, the best in class, and it's their strength, their deep bench of experience and acumen that drive NYIAC. More recently, we added an advisory council of experts and third-party funders as well to our financial model. And it's through these tranches NYIAC aims to be representative of our growing arbitral community. As you've already mentioned, we regularly host academic programs, trainings, and workshops. And whether you're in town for an UNCITRAL working group session or at one of New York's leading law schools or institutions, for an event, or you're just a New York local, all come through the doors of NYIAC. So it's a uniform space where all are welcome as we further best practices from our perch in New York. 

J.P.: Wow. That's a true differentiator from other organizations. Now, let me ask, Rekha, because one of the key features of NYIAC is obviously offering an incredible hearing space. How many cases has NYIAC hosted since it opened in 2013? 

Rekha: Since our launch, we've hosted over 200 hearings, totaling some 950 hearing days, with cases administered by the top arbitral institutions, so ICC, ICSID, PCA, LCIA, CIAC, and the list goes on. I'll add here too, in our early years, we benefited from subleasing space from the AAA ICDR. Today, we collaborate with groups including JAMS and the New York City Bar, building a shared community with constant activity along the Midtown Manhattan Corridor. So do step in. 

J.P.: Yeah, it's a very, very impressive space. And while the old hearing venue is nice, the new one is certainly an improvement, which I didn't think was possible, but it is. Now, what are some of the reasons then that you would tout for why parties would want to choose NYIAC as a hearing venue? 

Rekha: I’ll give you three. Neutrality, expertise, and service. As counsel teams, there's enough to worry about. Same with the tribunal. And so it's easy to leave it to NYIAC for all of those needs. I'll mix a famous brand saying here, a la Burger King, have it your way. So come on in and let us take care of all the logistics of your hearing so you can focus on the substantive aspects of the case. 

J.P.: Well, that is one of the really nice advantages of having a hearing at NYIAC. It really does take the pressure off of counsel to deal with any of the things other than the actual merits of the case. And NYIAC does a really superb job managing that so that you don't have to think about logistics that you don't want to worry about. Basic things such as who's going to host who's going to host lunch and where, and really important things such as technology and translation and LiveNote, all that. It can all be passed off to the organization, which handles it in sort of expert fashion. So a really, really nice facet of using NYIAC. Now, Rekha, you touched a bit on NYIAC structure, but let's just delve into that a little bit more. For those that are unfamiliar, familiar given that it did arise out of a New York State Bar Report and really is designed to promote New York as a seat in some respects. What is NYIAC's relationship to New York State and other governmental organizations? 

Rekha: Let me approach NYIAC's community involvement from a different angle, J.P.. We're actually involved with the city and state bar associations, you know, drafting reports and templates and codifying best practices, less so specifically with governmental organizations and bodies. And so I'll give you an example here. NYIAC's leadership is actively involved in drafting important reports for the city bar's international commercial disputes, and arbitration committees. And a small sampling of that, and I'm going to direct our readers here to the Citi Bar website and these reports, are the model federal arbitration summons to testify and present documentary evidence in arbitration hearings as of March 2024, the report of the working group on three private international law treatises as requested by the U.S. Department Office of the Legal Advisor of Private International Law, including the Hague Convention choice of court agreements, the COCA Convention, the Hague Convention on the the Recognition and Enforcement of Forbidden Judgments in Civil or Commercial Matters, the Judgments Convention, and the United Nations Convention on International Settlement Agreements resulting from mediation, the Singapore Convention. As well, we drafted a letter, NYIAC supported this in addition to the City Bar and several other organizations, a letter with a proposal to the U.S. Treasury Department's Office of Foreign Asset Control, OFAC, to issue a general license permitting U.S. Persons subject to certain conditions to perform services related to private commercial arbitration proceedings involving parties whose property and interests in property are blocked on the same terms as existing general licenses related to litigation involving blocked persons. And finally, a report on procedures for asserting and evaluating privilege claims in international arbitration as of October 2023, which was featured at a session during New York Arbitration Week. So this active engagement in proffering best practices and and codifying it through reports is a fundamental mission of NYIAC in addition to everything else we do. 

J.P.: And I have to say some of those task force or some of the reports and the thought leadership that NYIAC puts out is really critical and used every day. I just made use of the, or that NYIAC assists with, I guess, I just made use of the report on arbitral summonses again last week as counsel. And I almost always send that to the parties when I'm sitting as arbitrator because it's such a useful resource amongst others. Now, just to sum that up, then it's correct to say that unlike some other institutions around the globe, NYIAC is not really a state funded entity. It's funded by local stakeholders, predominantly law firms, and is really then independent of the local government. Is that? 

Rekha: Correct. And I'm glad you make that distinction. I had highlighted it before, but it's important to drive home. We are a privately funded body by law firms in the first instance at our inception, and then more recently through an advisory council of economists and third party funders. So really representative of the arbitration community at large, and they are financing this center in New York. And so it's important also that it's not funded by the government as well. We're not a chambers, right? So we're really a center that does so many aspects of things, including host hearing. 

J.P.: That's great. Yeah, it's a really unique structure, I think, that really gives it a lot of independence while still giving it a lot of thought leadership drive behind it. Now, you just mentioned the advisory council. Maybe you could tell the listeners a bit about the advisory council and what it does. 

Rekha: Sure. We launched an advisory council in 2022. It's comprised of 11 economist firms and third-party funding firms as a means to draw our community closer, build cohesiveness with the experts who help us win cases. Notably, in 2023, we launched a series titled Working with the Damages Quantum Expert, where in monthly sessions, we cover topics including DCF, accounting, market valuation and capitalization using market method and event studies, and issues in post-valuation, things like limits on recovery, interest, and taxation, as a means to start the relationships between lawyers and these experts and funders and get into the nitty gritty of these topics, make everyone more conversant about them. And so it's been really fruitful. We have our final session upcoming in June to close out the series. And then we're thinking hard about what comes next. Fashioning a sort of academy where we can do a deep dive into advocacy and training on these critical topics.

 J.P.: That's really great. And I want to dive more into programming in just a minute. But before we do that, is it correct then that the advisory council is different than the advisory board? 

Rekha: Yes. So a good distinction. So we have two advisory bodies. We have this advisory council, economists and funders that comprise it. And then we have a global advisory Board. So the Global Advisory Board is a combination of practitioners, academics. It's led by George Bermann and Eric Schwartz. And we use them as our voices to understand what we should be doing in the space, what more we could do, how is the application of New York law important across the globe in different ways, and how are we growing as a community out of New York. And so we have the luxury, I think, of because we're in New York, so many visit us with frequency that we can get these various advisors together to make sure we've just completed one decade. We're looking to our next. How are we going to keep growing for the future? And it's these advisors that are going to help us do it.

 J.P.: It is a really impressive group as well. When you look at the list of names of people that sit on the advisory board, it is quite austere and quite impressive. So worth taking advice from. Now, you started to talk a bit about some of the programming that NYIAC is doing. And you talked a lot about the quantum series that was just done, which is about to be concluded, which is a really useful series that I definitely recommend to listeners. What are some other recent events that NYIAC has hosted or sponsored so that the listeners get a sense of some of the other programming that goes on? 

Rekha: So we have two signature events annually, our Grand Central Forum and, as many of you may know, New York Arbitration Week. Last year, being our 10th anniversary, we held a panel for Grand Central Forum in September titled, Selecting New York Law for Cross-Border Transactions, a Wise Choice, with a panel of in-house experts and arbitrators, moderated by Lucy Reed, with a keynote from Eduardo Zuleta. And as well, during the celebrations, we were able to have Judge Garcia in, who had clerked for Judge Kaye, our first chair of NYIAC, the founding chair, the reason NYIAC exists, to speak about her work, not only on the bench, but also in shaping NYIAC. Beyond these programmings, these two annual events we have, we also collaborate regularly with the UNCITRAL Secretariat when it's in session in New York for Working Groups 2, two, dispute resolution and working group three, ISDS reform. We most recently had a program during the working group three on reform and about financing of standing mechanism and advisory center. We were able to get a lot of representatives from the various ministries attending and participating actively in that conversation, similar to the conversations we were having on the floor of the working group. And so the goal really here is to bring together different Right. Whether it's about international commercial arbitration or investment arbitration. We've even done a program titled Disputes with a Salty Flavor and how to resolve them delving into international maritime arbitration. And so it's really trying to. Create a tapestry of different topics that are innovative, if that's possible, and new. Thoughtful and mindful, even, that there are so many programs in this day and age that we can't exhaust our audience, our local audience here in New York, but we certainly have to do things in allyship with other organizations. So we're working together to do better, more refined programming, and even less of it. But how do we deliver the content? 10. And so we're always thinking about that. And I'm grateful, J.P., that you're part of our program committee and you help us think critically about what we should be doing to make sure we take the summer months off because everyone comes back rejuvenated in the fall and ready to hit the ground running. And I hope to see many of you in the fall at Grand Central Forum, which is targeted again for September, as well as New York Arbitration Week, which is the week before Thanksgiving in November. 

J.P.: Well, I have to say it's really a pleasure to serve on the programming committee because some of the NYIAC programming is really exceptional and it is different than other programming that's going on. And that's really, that may sound a bit odd, but in this day and age of a lot of programming that's available around the world, having true differentiator programs is really nice. And I know I've put on a few that have been really fun and some of the other ones that have come out have been really, really valuable. Before we lose it, or before I lose the thought, Rekha, and I may have missed you saying it, but what is the actual date for the Grand Central Forum? 

Rekha: We're in process of finalizing it. 

J.P.: That's right. I should know that. I should know that. 

Rekha: No, no. We discussed how we threw out some dates, but I will certainly get back to our audience and make sure that everyone is privy to the details and the registration. So please stay tuned. 

J.P.: I was going to say, stay tuned. It's coming out and I'm sure you will get an email from NYIAC if you were on the list for that date because it's a really great event. 

Rekha: Maybe this is a good plug, J.P., to say for any of our listeners, NYIAC Weekly publishes a newsletter trying to capture, to the best of our ability, all of the events that happen in New York, as well as globally. It came actually out of, I was traveling for fun in Colombia, and I was in Cartagena, and I was looking around in the lobby and realized that there were a lot of people I recognized from the arbitration community. And of all things, it just so happened that there was an arbitration congress happening while I was there on holiday. And I thought, how come I didn't know about it, right? Because there are so many things going on, and we all stay informed in different ways. And so out of that, I realized maybe it would be useful for NYIAC to collect all of these events in chronological order and publish them on a weekly basis so that no matter where you are in the world, whether in your own backyard or traveling, that you can find an event if you're looking for one, if you just take a snap of the newsletter. And so you can go on our website and sign up for it. And it's also a really good way, frankly, for us not to plan events at the same times as our friends and colleagues. So we don't detract from delegate attendance at any of these, so that everyone has robust interventions and folks in attendance. 

J.P.: Yeah, Rekha, I'm really glad you brought that up. That is the most useful email that I get every Friday, almost every week. And I almost always routinely forward it to everyone within the Reed Smith International Arbitration Group because it is such a good summary of what's going on globally and also what other opportunities are available within the sort of industry sector. So, for instance, that email will contain things like information about what YAAF groups are seeking leadership applications, what sort of scholarships are available, what sort of writing opportunities there are. It's a really, really, really valuable summary of everything that's going on in a very digestible snippet. So I definitely recommend it to listeners. You will be happy that you signed up for it if you do. So with that, let's talk really quickly then to sort of wrap things up about looking ahead and where NYIAC is going in the future. Rekha, if there's one thing you'd like to see NYIAC accomplish in 2024, what would it be? 

Rekha: I’d really like to build deeper with the associates across our law firms. We started with trainings for arbitrators in 2013 and 2014, and now the institutions have taken lead on that. And so I want to build workshops to fine-tune associate advocacy and do it in a way we're also building the community across our law firms. That's the benefit of having these illustrious law firms that fund NYIAC. And so that the associate classes, not only within their firms, but across the firms, are building relationships with one another. It's only going to help them more in the future. And so that's one thing. And I think in doing that, it's also a means to disprove the idea that international arbitration is a club. Rather, it's this idea that NYIAC and many other bodies put forward that if you work card, you're kind and you're smart and ever discerning, you'll have a seat at the table. And I mean that. You'll have a seat at the NYIAC table if you do those things. And you reach out because we do it better together. And although cheesy, it's important to drive that home because there are so many interested in this practice. Year after year, going to the Vis arbitration in Vienna or in Hong Kong, you see this desire of so many students committing themselves to the substantive aspects and the procedural issues and wanting to be part of this practice. And they might not start out in the practice just because of where job vacancies exist, but they end up somehow coming back to it if they're able to. And so we want to hold on to all of that talent and figuring out how to do it, particularly across the New York law schools. I'll give you an example, trying to map all of those students that come into New York, that study at these leading law schools, that take the New York bar, and perhaps they go back to their home jurisdiction or another jurisdiction over time, but they always have an interest in New York and coming back. It's that slogan, I love New York. There's an international arbitration club that they put forward this notion, right? The I Love New York campaign of which NYIAC was built from. And so we want to hold on to that, that love of New York, the application of New York law, the commercial reasonableness, the reps and warranties of why it's getting applied more and more, and why even these lawyers that may not be sitting in New York are still recommending where appropriate New York law. How do we hold on to that? They're not only our brand managers, but they're our friends. And so I want to keep thinking critically about how we hold on. To all of that talent and stay connected in a world where everything is digitized and it's so easy to hop on a podcast or a webinar or whatever it is and connect with somebody no matter the time of day. 

J.P.: That's a really, really excellent, important point to drive home, Rekha. And I'm really glad to hear you bang that drum as well, because I am constantly telling associates within my firm to get involved, to get involved early, to join every YAAF group that they can or young international group that they can, because it really is the best way to start getting involved in the community. And NYIAC is a really great place to start doing that. So please do take up Rekha on her, what I will call her invitation to get more involved with NYIAC in particular. Rekha, let me just conclude this then by asking you one last question. Where would you like to see NYIAC in sort of five to 10 years from now? 

Rekha: So we've completed 10 years, as I mentioned last year. So we're looking to the next 10 and the next 20. And so I think the biggest focus in the next years will be to grow through the three Cs, creativity, coordination, and collaboration. So we're going to keep hosting hearings, perhaps even at more venues than we already have in our purview, to make sure that the parties have whatever they need to make it easy, right? We're going to keep putting on events and substantive sessions and bringing the community together at different junctures. and we're going to keep trying to publish important reports, all of that with momentum, right? But the truth is that we also just have to keep taking stock of where are we at and what does the community need? And I can't answer that easily. And so rest assured through our founding firms, through our advisory council, through our global advisory board, through the excellent NYIAC leadership, both at the officer level and the executive committee, we will figure it out together, and I always welcome audience participation. So if you have an idea or you think NYIAC should be doing something, it's as easy as dropping a line to info, I-N-F-O, at NYIAC, N-Y-I-A-C. Not to be confused with the town in upstate New York, NYIAC.org. So [email protected]. If you drop a line, we're always welcome to the feedback, back because certainly NYIAC is there for the people and we need to cater to those interests. So let me know. We have individual memberships too to the degree that you're looking to get more involved in NYIAC. Do that individual membership tranche, so you can then join the program committee like J.P. and others. And we have about 25 strong, J.P. It's a robust committee. But through all of that feedback and folks all over the world, they're opining on what should our big topic big programs be? How should we be dealing with new content? So get involved with NYIAC at any aspect you'd like to and do drop a line if you have any suggestions or you have a question. 

J.P.: That's really great to hear. And I can reemphasize, Rekha really means it when she says, welcome to all suggestions, because she will absolutely take them under advisement and you could well help shape how programming goes and how NYIAC itself develops. So please do reach out. Well, with that, I think we can say that concludes our discussion of the New York International Arbitration Center. I want to thank our guest, Rekha Rangachari of NYIAC for her invaluable insights. And I want to thank you, the listeners, for listening in. You should feel free to reach out to Reed Smith about today's podcast with any questions you might have. And you should also feel free to reach out to Rekha directly as I'm certain she'll be happy to answer any questions that she can. We look forward to having you tune in for future episodes in the series. Rekha, thank you again. Really a pleasure as always. And we look forward to having you back in the future. 

Rekha: Thanks so much, J.P. This was good fun. 

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 [email protected]. 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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Transcript is auto-generated.

Gautam Bhattacharyya welcomes arbitrator and independent practitioner, Manini Brar in this “Spotlight on…” episode.

We discover what drew Manini to the law, who her greatest mentors and inspirations have been, and how she developed an interest in international arbitration.

The conversation then turns to Manini’s launch of Arbridge Chambers and the differing roles of counsel and arbitrator, before closing with Manini’s views on achieving greater diversity, equity, and inclusion.  

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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. And with that, let's get started.

Gautam: Hello, everyone, and welcome back to our Arbitral Insights podcast series. And our latest edition is going to be another very informative and fun one, I am sure. I'm very delighted to say our guest today is Manini Brar. Hello, Manini.

Manini: Hello, Gautam. Hi. Gatuam: It's great to see you again. It's wonderful to see you. The last time I saw you was in Delhi during Global Arbitration Review's Delhi Live and as part of Delhi Arbitration Weekend. And it's lovely to see you again. Thank you for agreeing to be part of this podcast.

Manini: Like I said before, when we were leading up to this, this seems to be a podcast which is very popular and has a loyal following. So I'm very happy to be here. But the other is that we got along so well over that dinner over Delhi Arbitration Week that I'm seeing this as a bit of a two-way exchange where I get some insights from you as well. So that's part of my motivation.

Gautam: Well, that's wonderful to hear. And I hope I won't disappoint you. I will do my best to achieve what you hope that we could achieve in the course of this podcast. And I really am over the moon that we're doing this one together. I have a lot of admiration for you, Manini, and that's why I'm so happy that we could have you on this podcast. As I always do, I'm going to give a quick introduction to you as our guest. So Manini is a dual qualified lawyer. She's qualified in India and in England and Wales. She has worked in a variety of places and gained much experience. So both in private practice... She's worked with senior advocates in India. She's worked at arbitral institutions. She's been involved as a tribunal secretary on a number of occasions. And in 2021, set up her own chambers in Delhi called Arbridge Chambers. And is not only a wonderful counsel, but is one of that rare generation, which I love to see, female arbitrators of ethnic origin. And I make no bones about it I love that so that's a quick introduction to you Manini I hope I've done you justice in that introduction I could never do you justice because I need to take 10 or 15 minutes to go through all your wonderful accolades but I hope that's uh at at least a good summary for our listeners.

Manini: No no this is great because when I hear it back it sounds you know so much better than when one has lived it.

Gautam: Well, I can assure you, you've achieved a lot. And in the course of this podcast, we are going to explore, I hope, a fair bit of the things that I mentioned. And I mean, I guess a really appropriate way to start this is what inspired you to the law in the first place?

Manini: So just a bit of background, I was in an all-girls school where I was the head of the debating society. So I loved to debate and I really thought I was going to get into an area which involved more public service. And what I had in mind at the time was journalism. And my father looked at me when I told him that and said, that's all right. But if you're expecting me to fund your professional journey through journalism.

Gautam: That's a good leveler, right? That's a good leveler.

Manini: So I said, okay, what is it that I can do where I will be immediately qualified to help the larger public good? And for me, it was an easy choice. It was becoming a lawyer. And then I got to law school and within a month of being there I knew that this is something that I wanted to do and I've never looked back. Gatuam: Now that's great and you know I suppose in many ways lawyers are in some part journalists right because we tell stories right so I dare say that in the context of your legal career you have also borne out your journalism dreams I'm sure you have. You know, one of the things that we all benefit from in the course of our careers are wonderful people who mentor and inspire us. And I know that I've got a number of people who've held those roles for me. And I'd be really interested, and I know our listeners would be, if you could just share with us some of those people who've been your greatest mentors and inspirations in your career so far.

Manini: You know, I have a slightly different experience with finding a mentor only because I don't belong to a legal family and I have actually no one in my family is a lawyer and we're not even remotely connected to business. My dad was a cop. He was an IPS officer in India. So I sort of went through this journey a bit on my own. And as much as I would have loved to have one particular person who I could have, you know, tugged along with and had the benefit of the experience, that is something that I never, a point that I never really got to. But what did happen for me is that. Almost all the people that I worked with were very high level professionals. And not only the seniors that I worked with, but also my colleagues. And so I've had the good fortune of really meeting inspiring people who have set the bar very high in terms of what is expected of a lawyer and what is the kind of professional etiquette that you should have. And that is something that I have taken with me from different people at different points of time in different ways and sort of held on to. So the seniors that I worked with at the bar, some of the lawyers, some of the colleagues that I've worked with, they've been very helpful. But for me, I think the most inspiring thing has been a bunch of people who didn't know me, who had no relationship with me, who had not mentored me, not helped me, not been in touch with me professionally, but who found me out to help a total stranger. So my professional journey is one which is full of these amazing instances of... Goodwill of generosity from total strangers and that I find is something that I would really like to give back in future and I try to every day. You know I try and I try and seek out the people who I think are meritorious and I try and sort of take them along if they need any help or if there's any way that I can help them I try and do that because I know that there have been so many people who have done that for me.

Gautam: You know, that in itself is really inspiring and uplifting to me, Manini. I must tell you, you know, and I'm going to just spend a few seconds because you did say to me, and I'm not one to turn down a request from you, that you wanted to hear a little bit of my thoughts. And, you know, so one thing I love is you're also first generation, I'm first generation. There was no one I could turn to. No one gave me a leg up. No one gave me any favors or anything on a plate. And I had to discover the law for myself and everything. So, I mean, I know that your family has always been a great inspiration to you. My family, of course, has been a great inspiration to me and continues to be. But also, I think professionally, it's very interesting. There have been some people along my career that I've known for the last, you know, I am older than you, over the many, many years that I've I've been doing all of this, but you know, there are some people who I look back on and who, I mean, there was, it's some people who I didn't even meet who inspired me. And I think I want to dwell on that for a few seconds, because I remember when I was very junior, there was a, someone called Shashi Rajani, who at that time, and I've never met Shashi, but he, when I began in 1991 in a law firm, he was already a senior partner in a city law firm in London. And that was a really peculiar thing, right? To see someone like that, of that age, of that level of experience at that time was really something. And that inspired me to want to be like him. The other person who inspired me at that time in 1991 is I heard of a certain person who became a very, very dear friend of mine and a great mentor of mine. And who unfortunately we lost in February of this year, Fali Nariman. I didn't meet Fali until a lot later, but I came to know of him through reading about him back in the early 90s. And I thought to myself, I really want to be like him. So it's really interesting. And I won't dwell on other people because we haven't got time, but there are so many people I owe a huge debt of gratitude to. But it's those people who I I heard about, I read about in the early stages of my career, who really gave me the drive to try to be something. And I'll always be grateful to all of them. And Uncle Fali remains, even though he's now left us, a huge inspiration to me.

Manini: Can I just add to that, that, you know, one of the first things I did when I enrolled at the bar in 2010 was I went to court number one, which is the chief's court in the Supreme Court. And I sat there during the lunch recess just to sort of take it all in and you know there were these big so they have these portraits of all the chief justices and then and then of one particular judge who had done the country a great favor during the emergency and I was sitting there and I was looking at their portraits and feeling very inspired and then lunch recess got over and the first matter that came up was one where Fali was arguing. So we have that in common. I have been thoroughly inspired by him. And then I bought his book and I got someone to help me get his autograph on it. And so I read Before Memory Fades and it's one of the most influential things in my life.

Gautam: Oh, I agree. That book, I've got a signed copy myself of that book. And it still inspires me just to read some of those stories, anecdotes and stuff so no no it's wonderful well no I mean and I say it's nice to know that and I probably wouldn't have found that out but for this podcast with you so that's a really nice thing. So now one of the things that you've done really well is you you've gained a lot of experience in the field of arbitration. As a practitioner, as a tribunal secretary, with institutions, and now as a practitioner and arbitrator. But how did you first discover arbitration? Or how did arbitration discover you?

Manini: So I joined a litigating lawyers chamber back in 2011, about 13 years ago. It was one of the beginning, starting years of my practice. And I thought that I was going to go to court every day. But in about the third week of my being there, these three very thick binders landed on my table. And there were three different arbitrations regarding very complex hydropower project. And so for the one, one and a half years that I was associated with that chamber, I worked only on that matter. And then I said, okay, this is something that I enjoy because I really feel that as compared to court litigation, a lot visibly happens in an arbitration over good, careful drafting, over good structured arguments. And it is, shall I use the word, but a very equitable way of resolving disputes. So I was attracted to that. And then I decided to study further and do my master's in Cambridge, where I studied dispute resolution in particular. And from then on, there was no looking back. I worked as a research assistant with one of my professors, and he was kind enough to recommend me to the ICC. And I think that was when I absolutely fell in love with the practice all over again. Because one thing that the ICC taught me, and you've referred to my various experiences, is that you have to absolutely know the process and what is market best practice before you feel confident enough to start giving your opinion about it or to start using that as a legal skill or to use that to advise other people. So I think the repetition of the tasks that we had to do every day at the ICC is really where I learned that. So I said, before I start my own practice, I need to know what this whole scene is about the litigating lawyer who's doing arbitration, about the arbitration chambers that are only doing the arbitration hearings but not appearing in court, about the involvement of the government. Because a lot of arbitration in India is government facing. It's either government contracts or it has one element involving a government tender. And so I made it my mission to sort of get a perspective on everything before I felt like I was confident enough to, you know, branch out on my own.

Gautam: Well, well, fabulous. And that's a perfect segue to asking you about branching out on your own, because I mentioned mine in the introduction. That you are the founder of Arbridge Chambers in Delhi. And you founded that chambers in 2021. And so just tell us a little bit about, what drove you to set up your own chambers? And, you know, tell us a little bit about Arbridge Chambers in terms of your team, and the sorts of work that you're currently involved in, of course, no names, of course, because we all respect confidentiality, but the sorts of things that you and your team are doing.

Manini: So Arbridge Chambers happened because, like I said, I always wanted to get into independent practice and have a setup of my own. And the constant struggle for me was, of course, one was being sure that I know everything that I need to know, that I have the skill and the wherewithal. But the other was also that every time I spoke to someone about setting up an independent arbitration practice, they said, well, why don't you do it in a firm? You know, because firms have larger teams, they're dealing with bigger projects, and it will be easier for you to do more meaty arbitrations. And I thought that in India in particular, the firm setup inevitably involves engaging a separate council for the court-facing part of the arbitration. Most often than not, although now that is changing, but that was the setup then. And I said, I don't want to be in that system where I have to choose between which part of the arbitration I'm involved in. And so that wasn't working for me and the other thing that people said a lot was that you know you're going to be a small fish in a really big pool and I looked around myself and there were so many practitioners who were male who had their own independent practices and were identifying as arbitration practitioners and I just wondered why is it that there are no women doing this. So for me, I said, let's see, you know, that was my thought process that if it doesn't work in, say, three years or five years, I will go back and I'll do something else. But if it does work, then great kudos for us. And so I set up a chamber where the people who work for me also see themselves as independent advocates. So we work together on matters that, for example, are mine. But I also encourage them to take on independent work. And the idea is very much like a chamber for everybody to eventually develop into their own practitioner. When I started I must tell you I started in the January or January of 2021 and that is the month that I found out that I was pregnant with my first child. So I left and I thought that no I’m going to focus on client facing business development and I have so much work to do and about 15 days after I made this announcement that i'm starting in my chamber, I found out I was pregnant. And then I just kept thinking for another couple of months, how I'm going to do it. And, you know, how is this thing going to come about? And one day I was walking very furiously on my evening walk, thinking of all this and thinking, maybe this is a really bad time. Maybe I should park it for another three years. And I got a call from the Delhi High Court, from a judge who said, I have read some of your published articles on arbitration and I have a really small arbitration that I'm looking for an arbitrator for and would you be interested and this is you know one of those people who who has no connection with me I spoke earlier about the generosity of strangers and that's how I started my practice he gave me two matters one one was the small arbitration another one was a batch matter which had 18 connected arbitrations. And that actually sustained me through those initial phases of my practice.

Gautam: Now, that's a great story. That really is. I mean, you know, there's so much in there, which I love. First of all, you had the courage and the desire to set up your own chambers and your own practice. Number two, you weren't put off by people saying that you'd be a small fish in a big pond. I love that. Number three, you said that there were lots of men in their own chamber, so why shouldn't there be a woman? I love that. And I love also, amongst other things, that point you just made about a stranger to you, a judge who rang you up and said, look, I've read your publications, which just shows it's really worthwhile to all the younger lawyers listening on this podcast. You can never start publishing too early. Always love the law, love the practice, write about it, add to knowledge. That's really important. Now, the fact that you did that, Manini, led to that lovely circumstance that you got these matters and then that helped you. And it's just, no, there's a lot in there that's very inspirational. And, you know, well, look, thank goodness you didn't get put off and you've certainly made a great success. So, you know, as I know, our listeners will, of course, know from you and everything you stand for. So, no, that's really interesting. And also the point that you mentioned about how you love to see colleagues of yours branch out themselves. I think that's another thing. I mean, again, I'm going to use your request to me to say a little bit about my perspective to what you say. I think that's so important. You see, you have to want people who work with you, not just to equal you, but to surpass you, right? And there's no point looking to help people and benefit people and mentor people, inspire people, if you don't want them to do really, really, really well. And so I love that message from you, Manini, there. You covered a lot of ground in that last answer, and I loved it. So then, now that you're a counsel and an arbitrator, I wanted to get your perspectives on, you know, what are the key skills that you think an arbitrator really absolutely has to have?

Manini: You know, so this journey of trying to be both and wear both hats is actually a very challenging one. And I have immense respect for people who have done it before me and done it so well. Because when you're practicing in India, especially, for example, in a high court like the Delhi High Court, which has very high stakes and it's one of the most highly regarded courts in the country, you'd– on on an everyday basis you have about 50 to 60 matters listed before a particular judge so you have about three minutes to make your point and you have to do it in spite of the other lawyer sort of also trying very desperately to make his point so the entire skill involved is is to be quick, to be to the point, and to get the relief that you want loudly and quickly. And when you're being an arbitrator, the thing that you have to do is park that argumentative side of your personality completely and stop judging the matter for its merits, before they are presented to you. That essence of being a neutral, of not having an opinion about either the people who are appearing before you or the case the merits of the case that they may have without actually looking at their pleadings and and keeping a balanced view is really the the core of what you're expected to do and it is drastically different from how you think as a counsel so I think for me that is the most important thing. I don't try and go behind the party's intentions when I'm wearing the arbitrator hat. I don't try and go behind, well, why are they putting this counsel forward to argue or why did he time his application in this particular way? I don't get into that unless it is argued before me. So that's what I try and do. And I think that has worked for me so far. And it has helped me to resolve disputes efficiently because we don't get caught up in the rigmarole that a lot of, I think, other people sometimes get stuck with.

Gautam: Yeah, no, I'm again, I couldn't agree more. And I think you're so right. It's just that approach. You know, when we were at GAR in Delhi together last month, you would have met, I hope you would have met Sadaf Habib, who was one of the other panelists on another panel that you weren't on at GAR. And one of the things that she mentioned about her experience as an arbitrator was about having empathy and trying to be balanced in the approach that you give and feeling, as always, that each side has the ability to feel that, you know, okay, they might have won, they may have lost, but they've been fairly heard, that they've been respectfully heard, and they've been empathetically heard. And I think that's a really important point which you've touched on there. And I think that's such an, that really, I think that's one, from my perspective, I think that's one of the things that differentiates arbitrators, because people do know who the very decent ones are in terms of character, personality, and their traits. Now, one thing I want to ask you about, Manini, is you and I both know that there are happily many more women like you coming through as arbitrators, but there aren't enough of them, right? And I think we can agree on that. There are not enough. And I know that you're also a massive champion of diversity, equality and inclusion and the advancement of women. And we, of course, I mean, I have the privilege of sitting with you on the advisory board of Indian Women in International Arbitration. And we both share that passion for the advancement of women. But in terms of. From your perspective, what more can the community do to ensure that more women get those opportunities, more women get appointments as arbitrators, more women get the recognition they deserve? What more can we do?

Manini: I think this conversation has to start somewhere from recognizing the multiple roles that women play in society and recognizing that success is not a unidimensional thing. It's not really about making it to the 40 under 40 list or having your name up on Chambers and Partners when when your male colleagues are also there because you take time out as a woman you take time out to have a family you take time out to you know set up your marriage and you make decisions around those life choices so i think one of the things that absolutely needs to happen is the conversation needs to shift towards gender inclusivity in the sense of really understanding that the two genders perform very different roles in society and factoring that in when you measure success. For example, I have not set myself up for these unreasonable standards of, for example, being a senior counsel in the Delhi High Court by the age of 42. It's simply not something that I aspire towards, because I know that there are other facets to my life that I also want to take care of. And towards that, towards gender inclusivity, I think. Judges who are appointing arbitrators, institutions who are appointing arbitrators, parties who are appointing arbitrators, have to recognize that simply because a woman is not visible at every networking event or at every panel discussion doesn't mean that she's not capable or not interested. It's just that in a day, she has to do so many other things. And sometimes the priorities are different. On a particular day, your children need you more than work does. And so I know that there's a lot of pressure on being visible within the arbitration community. But I think there needs to be a certain amount of flexibility there. I mean, the example of the judge that I gave you before, right, he made the effort of going online to look at who were the new people, young arbitrators who were publishing or people who were talking about arbitration or were visible online, which kudos to him, he could have, you know, asked his juniors about who they met at the last conference who looked like a promising person, but he didn't, He made that extra effort and I think that is what we all need to do. As an arbitration community, we need to seek out women, because sometimes they're just held back by circumstances, and not really by a desire to, you know, hold back. Gatuam: I couldn't agree with you more. And I know, I just think that's, again, so inspirational. And, you know, people like you, that's what people, you are real role models for so many people, because you live and breathe those values and those aspirations and those beliefs. And, you know, and I know many people who listen listen to this podcast will feel that too.Now regrettably we've come to the - please is that something else you want to mention Manini?

Manini: Yes I actually want to ask you Gautam that when you I know that you're you know also such a champion of diversity the fact that we're doing this podcast in some way is you know your step to put more people on the map and i want to ask you What is it that you see in the people around you as a quality that they should have to help diversity or to bring the community together?

Gautam: Yeah, well, look, you know, thank you for that question. I think, you know, I just think that people need to be generous in their outlook. And I use that word because I think generosity is something that's very important. I think as people get more senior, more experienced, they owe it. A bit like you said earlier on in this podcast about giving back. We need to ensure that we leave our arbitration community, our legal community, our litigation community, our legal community a better place than when we arrived in it. Because one of the sayings that I remember reading many years ago was, the legal profession graces us. Lawyers don't grace the legal profession. And I think it's very important you look at it in that way, that you need to ensure that people get opportunities, not least because not everyone comes from a privileged background. Not everyone comes from the best schools, the best universities. Some people haven't got the best general knowledge, whatever you want to say. Some people haven't traveled as much as other people. But there's a real diversity in that. Some of the best people I've ever met and I've ever worked with. Are people who are unconventional, who aren't from a straight line, this background, that background. And I think that's when you've got to say a bit like you yourself said, and I'm going to steal one of your lines here, when you see good and you seek out people, because some people will actively come to you for mentorship and for help. But many people won't do that because they're not sure, they're afraid, you know, they're a bit uncertain about it. Make it easy for them, be generous and reach out to people and make sure that you leave the legal atmosphere that you've joined a much better place when you leave it. So that's what I would say. And I try to do that in the best way that I can. I'm not perfect by any means, but that's what I try to do.

Manini: Inspiring. Thank you for that. That's a good tip. I'm taking it back, generosity.

Gautam: No, thank you for asking me. And just so everyone knows on this podcast, these questions, which Manini are asking me are completely unscripted and I had no idea but I'm but I'm grateful to you for asking that to me. So we have regrettably come to the end of our podcast I could talk to you for hours Manini because there's so much we could talk about and and the dinner that we sat in together in Delhi last month as you yourself kindly said was a really really nice nice occasion. And I honestly could have spent hours just talking to you on many things. But we always end these podcasts with a bit of fun. And this podcast is no exception. So I want to ask you, what's your favorite sort of music? Have you got a favorite singer, a favorite group? So tell us about that.

Manini: You know, these days, I've been spending a lot of time in my village in Punjab because of my kids. I like to take them there as much as I can because it's open and it's green. So I'm immensely immersed in Punjabi music. And these days, my favorite is Ali Sethi, who's a Pakistani singer. He's done some fantastic things in the past couple of years, and he's been to Coachella, and he's, you know, basically rocked the Punjabi music world. So I love that. Yeah, that's what I'm living by.

Gautam: I love all that stuff. I mean, I yeah, yeah, no, know and you know I yeah I love that you know it's great to have that because it is great music someone who's played at Coachella has to be pretty cool as well just so everyone knows and the last quick question to you have you got a favorite travel place where you like to go with your husband and your children?

Manini: It's actually London, London is my favorite. So yeah i think i think we have a lot in common more than more than the law beyond the law I love being in London because my sister is there and I love to shop and it's my shopping, and the other is home, Punjab. If I can get away from Delhi, it's either London or Punjab. These are my two options.

Gautam: Well, dare I say, you know, one of the things I remember my dad saying many years ago is how proud he was that the rivers of Bengal ran so deep in his veins. And I dare say you would also say that you're very proud that the rivers of Punjab run deep in your veins. So, well, look, So it's been an absolute delight to do this podcast with you, Manini. Thank you very much for doing it. I've genuinely enjoyed it. I've been uplifted, inspired by you. I just think that our listeners will absolutely love hearing your perspectives and the enthusiasm and the drive that you bring to so many things. And I just want to end by saying, you know, very well done for everything you've achieved so far, and I wish you all continued success. So thank you again, Manini.

Manini: Thank you so much. Thank you, Gautam, for having me. And I hope outside of this podcast, we're going to continue these conversations because I'm always looking to talk about.

Gautam: We will. It's a promise. Thank you.

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 [email protected]. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the costs 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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Transcript is auto-generated.

KCAB International Secretary General Steve Kim discusses KCAB International’s mission, initiatives, and future. Steve is joined by Reed Smith’s New York international arbitration partner J.P. Duffy.

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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. And with that, let's get started. 

J.P.: Welcome back to the next episode of Arbitral Insights in which we'll discuss the Korean Commercial Arbitration Board's International Division with Steve Kim, who's KCAB’s International Secretary General. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both counsel and arbitrator in international arbitration, seated around the world under a variety of governing laws and arbitral rules. I'm qualified in New York, England and Wales and the DIFC courts in Dubai where I previously practiced. I routinely represent clients and arbitrations involving Korea and East Asia and I also had the good fortune to be listed on the KCAB International arbitrator roster. With me today is Steve Kim, who's the Secretary General of KCAB International uh where he oversees the daily operations as well as global marketing. He's qualified in the US state of New Jersey and started his career at the AAA ICDR back in 1998 where he served as the director for seven years. Steve then moved to Korea to be in-house counsel for Samsung. After five years of that, he recognized the importance of sales and marketing. So he became a country manager for an IP management company, then head of Korea for a large EU based law firm until he was invited to join the KCAB in 2022. We're thrilled to have Steve today and to have his insight. Steve welcome and uh thank you for joining today. 

Steve: Thank you very much for inviting me. 

J.P.: Great. Well, with that, let's jump right into our discussion and let me start by giving some background on KCAB International for uh for those that aren't as familiar with it. KCAB International is an international arbitration institution that was established in 2018. It's an independent division of the Korean Commercial Arbitration Board, which was itself established in 1966 and specializes in administering international arbitrations in a cost effective and time efficient manner, pursuant to the streamlined processes. KCAB International seeks to be a premier International Dispute Resolution Center in Asia and beyond and has a truly international presence in 2016 in recognition of the fact that Los Angeles has the highest Korean population in the world outside of Korea. KCAB opened its first foreign office in LA. In 2017, KCAB International opened its second overseas office in Shanghai in the PRC. And lastly in 2019 KCAB International opened an office in in Hanoi in Vietnam, making it the first foreign arbitral institution to have an office in Vietnam. Um So clearly KCAB International has a global reach. So Steve, let me ask you a question about that. Then do all of KCAB International's offices administer cases? 

Steve: No. Uh the Seoul headquarter office handles all of the case administration. Uh This is to streamline the process and have one centralized control tower. Uh We are looking into the possibility of one of our overseas offices having the capability of managing and handling case information at this moment. 

J.P.: Excellent. And does the KCAB International administer both international and domestic cases or, or just one? 

Steve: KCAB international focuses only on international matters. The domestic arbitration cases are handled by KCAB, the headquarter. Uh number wise, typically four or 500 cases per year with uh 60 to 100+ international cases per year for the international division. 

J.P.: And Steve, I think we said this earlier but KCAB International is a truly independent organization, correct? 

Steve: Right. That is correct. Uh It is an independent division of KCAB headquarters. Uh It is a separate division that handles only international arbitration cases. 

J.P.: Great. And we we talked a bit about caseloads. How many cases did KCAB International administer in 2023 for international matters? Steve: We administer roughly close to 60 cases and, and that's out of about 400+ overall cases that were handled by KCAB itself. 

J.P.: From what industries did those cases come from, Steve? 

Steve: For industry wise, construction typically takes at least 30% of our cases. Um General commercial transaction. Uh We are seeing an increased caseload coming in from the IT sector. Obviously, Korea is a very, you know, technologically focused and advanced country. Uh and then trade and entertainment um entertainment because of the confidentiality that the arbitration carries. So a lot of a lot of your K-pop stars that you are aware of uh uses arbitration to handle their disputes. 

J.P.: Wow, that's really, that's really great. Now, in the IT sector, is there any particular subsector within it that you see more cases of? 

Steve: We are seeing you know, a lot of our cases are under the it or your typical commercial contract disputes if I could try to actually categorize that because Samsung LG and Hyundai focus on their specialized sub sectors like semiconductors, automobiles, uh and a lot of the subcontractor issues, um cross border uh you know, trade disputes includes anything standard from non payment of services to defective goods on that. So a lot of the high tech cases, we're seeing more and more coming in as well as what we call the hyper innovative sector, which is Artificial Intelligence, platform business, you your next generation display next generation internet platforms. Those are uh coming in. Uh you know, we're hearing rumors that they are coming in the pipeline and we expect to see that on our platform on our arbitrary institution platform for the next two years as well. 

J.P.: Wow, that's uh that's an impressive development. Now, Steve, you mentioned as well and obviously we don't want to um we don't want to violate any confidentiality. You mentioned K-pop stars as part of the entertainment caseload. What about TV and film as those are pretty important industries in Korea. 

Steve: Right. They are um they are very important. What's happening is that the domestic division will see a lot of those cases uh because of a lot of the transactions between the entertainment companies uh and broadcasting companies here in Korea uh cross border wise, we do see them. Um So uh you know, the TV, companies that are, let's say, reaching out to Indonesia or Thailand where K-pop is very, very popular uh to develop projects and those projects did not go forward as planned or didn't go in the direction that the parties were, were hoping for. So we see some of those yeah, transactions and disputes as well. 

J.P.: Wow, interesting. Now you mentioned a few different countries that, that are relevant to the, to the entertainment industry. What countries were the top five users for KCAB International in 2023? 

Steve: Typically the top five are China, the United States, Thailand, Hong Kong. Uh and then we see the same percentage of the cases being filed in from Japan, Italy. So the top three are typically China, US, and Thailand and sometimes Vietnam will come in uh as well. Uh But then we do see some unexpected tourists like Italy. Yeah, coming in uh with few cases uh to take the top 10 spot as well. 

J.P.: Just out of curiosity, why, why Italy? 

Steve: Korea does, you know, I mean, you kind of have to take two steps back and, and think how Korea operates, you know, our main brand is as import export, right? So, uh and certainly Korea is one of to say the larger market for the global brands uh that are often generated in countries like France or Italy. And, you know, these are brands that, that, you know, anybody would recognize immediately. Uh and Korea surprisingly does take at least the top five markets for a lot of those top global brands, you know, whether that's cosmetics, whether that's fashion. Uh and you know, with that much transaction, we do see uh in some years, a focused amount of cases coming in from that particular jurisdictions. 

J.P.: So it's really a function of, of trade patterns and, and economic patterns. 

Steve: That's correct. That's uh that's a good way of putting it. I, you know, I mean, when uh if the economy is strong and when, if the spending power is very high, uh we, we do tend to see more transactions and certainly because of that naturally, more disputes. 

J.P.: Interesting. Well, then let me ask, is there, is there a case profile for which KCAB international is best suited? 

Steve: We like to think that, you know, obviously, you know, based on the history of the case administration that we've done, you know, we handle all kinds of cases. But because Korea is known for large scale construction cases, um very high profile it cases, you know, those are some one of our specialties as well and where we are along with the United States, one of the few countries that are left that has the capability of building nuclear power plants and whatnot. So, you know, those are some of our specialties that we like to think that KCAB has, you know, the capacity to handle. 

J.P.: Well, those are certainly, certainly impressive markets. Um And it sounds like KCAB International really has a pretty broad reach but are there particular market segments that it's really trying to target at the moment. 

Steve: For me, you know, you gave a brief introduction of, of, of myself, you know, in the beginning portion of this podcast, one of the reasons why I even put in there, that where I personally thought sales and marketing was important for even someone with the legal, you know, training the lawyer myself uh is for me to be able to reach out to an an appeal uh to that segment of the market, even if we are uh a, a traditional arbitration institution. Right. So, you know, the particular market segment that I'm actually targeting at this moment is the mid to mid large secondary tertiary uh and the the hyper innovative uh you know, market segment here in Korea as well as abroad. And the reason is that um so much of our economy is now moving on platforms that we have not seen in, let's say 10 years ago. Uh And all of those segments have a subset or sublayers of, you know, service providers or technology development. And that is, you know, that is going to be significant one way or the other. Uh And is it gonna, it's gonna take to say a good portion of this uh foreseeable future in terms of how the global economy is going to move. And for me to be able to say, you know, KCAB International is a good case administration center or good, you know, arbitration center may be good for the very specialized practitioners like yourself J.P. Uh you know, to listen to but to, to an everyday, you know, businessman or CEO that's running a mid to mid size or start up companies in, in the technology sector that doesn't really appeal to that. So, you know, I wanna be able to actually do something that's going to attract new users. Um And you know the way that I'm doing that is appealing arbitration or talking about arbitration without talking about arbitration. So if I could actually approach them and say, you know, we have a network of, you know, hundreds if not thousands of experts and hundreds of international law firms with global expertise that we, we are not necessarily necessarily are going to talk about legal technicality, but rather, you know, gain insight from those experts in terms of how the market is moving. What are some of the bigger players, you know, what are they coming to law firms or what are they asking for? Right. And without having to give answers and you don't necessarily have to even give the audience the answers to some of those questions is for the audience members to extrapolate um from the questions that they're asking to someone like you or to your M&A group or your transaction groups that they could formulate Uh if you know that big ABC company or the well known, you know, global companies asking that question, we should also be concerned with that issue as well, right. So by transforming the arbitration institution to more of a knowledge center, uh more of a practical guidance center that I think is going to be able to be, be able to appeal and attract the new market segments which I want to attract as well. 

J.P.: Wow, that's a, that's a really clear strategy and a really well thought out one and I appreciate your, your sentiment about keeping things less technical for, for non lawyers. And I'm going to use that as a segue now to jump into some of the more technical matters for the lawyers that are going to be listening in. Steve, it's my understanding of the current rules took effect in 2016 for practitioners like myself, what are some of the salient features of those rules? 

Steve: So, one of the first things that I noticed when I came in and, you know, I've been looking at the rules for some time now, even before I became Secretary General, is it, it really depends on which language the the rules were written in first and then how it was translated. And from a purely us practitioner, a very Americanized Korean American perspective, when I read the rules, it, it reads like it was written in Korean and then it was translated into English. And as, as best of the job that they did, I still feel that there are some gaps in the translation which could actually affect the interpretation or the accuracy of that. So that's one of the larger pictures that we're actually dealing with at this moment. And then, you know, you go down to the subset of that. Uh we're trying to clarify certain aspects, things like jointers, uh emergency arbitration. And we're trying to actually more clearly define the roles of the institution, authority of the institution to make certain decisions so that there is no or there is minimize confusion if there are multiple issues that are coming in, converting into, uh you know, into the institution or that particular issue at, at the same time. Things like third party funding, you know, which is not widely used here in Korea because of various domestic rules and regulations. But you know, we have to be in, we have to be mindful that there are most major jurisdictions are actively using that. Most major institutions have already addressed that in their rules as well. So that is something that we're looking at as well. The role of our International Arbitration Committee or International arbitration advisors, which is very similar to your other institutions, international arbitration courts and their roles and functions and how they should then should we say contribute to the efficiency of the arbitration, you know, here at KCAB International as well. So those are, you know, some of the larger and smaller salient features that we're trying to address for our upcoming revision. 

J.P.: So, Steve, when, when are those upcoming revisions expected to come out? 

Steve: One of the things that we do have to go through here in Korea is that we're aiming to actually have this, you know, revised and basically be able to announce to the public in the first quarter of or the first half of 2025. Now, as you may have, you know, seen from other institutions whenever they actually, you know, take on or initiate any set of rules revision that takes anywhere between 18 months to 2 to 3 years. So we, we're no different. This is a very long term project, but our initial goal is to have something announced in the first half of 2025 because we do need to have the Korean Supreme Court to review this as well. 

J.P.: Interesting. So you would have to go, you, you have a few different stakeholders that, that have to weigh in. I guess it sounds like that. 

Steve: That's correct. I mean, you know, the domestic, you know, rules are also being revised at the same time. So, you know, we kind of have to go hand in hand although, uh you know, we, we operate completely differently and you know, there are different aspects of rules revision on that. But, you know, we do have to be mindful and be respectful to the Domestic Rules revision as well as as you mentioned. Uh there is that final stage uh where the Korean Supreme Court will review and ask questions and comment on on the draft revision that which we're gonna be submitting to them as well. 

J.P.: Well, that's great with that level of involvement. It sounds like the rules will be, will be state of the art and, and very, very well thought out. 

Steve: That's exactly what we're trying to do. 

J.P.: It's a good objective. Well, let me shift gears a bit then and, and just talk a bit about what KCAB International is doing in the US. You've obviously come from the AAA ICDR and you've got a lot of experience there. What is your role in promoting KCAB International in the US? And what would you see as the biggest accomplishment there since that's, since that's begun? 

Steve: Personally. I like to think that my career took a very interesting turn and I, I took a more of a parallel legal career rather than J.P. And someone like you who took on a more more traditional law firm career or, you know, if I could generalize it in that way. So me having started in with AAA ICDR back in 1998 the earlier days gave me a chance to see the market and the size of the market when everyone was talking about International arbitration. This is 20 years ago, right? Um So I always had this notion that whatever we do or whatever I do at KCAB, we need to have KCAB International needs to have a bigger footprint and bigger impact uh in the US market. And one of the things that first things that I did was to utilize our office in LA to do more noise marketing, just just be able to say we're here and for us to, you know, not necessarily approach the Korean population that's based in LA or anywhere else in the US. That's one thing. But my philosophy is if I approach a US company, a large US company, and if their first question is what's KCAB? Then we have an issue there. So that's one of the first challenges that, that I want to address here, right? It's, it's, it's the elevation of our brand, right? So I always tell big companies here in Korea, we know that when you're dealing with a US company, it's not easy for you to actually try to actually have KCAB International uh written into your arbitration clause because they may actually say no or they may just not know much about KCAB International, right? So that's one of the first things that I want to actually, you know, overcome. So one of the biggest accomplishment in United States is for us to get more actively involved with the California arbitration guys. We know that California is a very large economy. Um It is, it is an important market although I, I'm a New York boy myself. Yeah, I grew up in, in California as well. So we started getting very actively involved with their arbitration promotion activities so that we could have either direct or indirect elevation of our brand through their activities as well. I also at the same time, kept in close touch with all my colleagues at AAA ICDR and all of my other institutional colleagues in the US for the US market as for the New York market. I mean, that is, that's the original market, right. So I had our director at LA office fly to New York to participate in the New York Arbitration week. You know, we regularly send out messages or the news bits to our friends and colleagues based in, in the US just to make sure that we are still bleeping, bleeping on their radar as well. Right. So my big accomplishment is to get our foot in the door and make an entry into the California arbitration market. At the same time trying to have our big US, corporations or the US clients and users to not to have to ask what's KCAB. So that's where I am at this moment. 

J.P.: That makes a lot of sense. And you know, one of the, one of the easiest ways to do that sometimes is to educate and deputize practitioners to, to go out and really talk to their clients directly as well about an institution like KCAB International. So one of the questions I would have about that then is you obviously would have practitioners serving as arbitrators. What does KCAB International's arbitrator roster look like? 

Steve: So J.P., you've been in this industry long enough to know that international arbitration um as popular and as widely known as it is, it is a still very exclusive, very specialized field of law. So there are limited number of practitioners and arbitrators and you know, at least the way I see it you know, compared to the size of the market there, KCAB international um arbitration arbitrator roster encompasses most of your well known, well respected the go to arbitrators that you and, and everyone else is familiar with, you know, and we also have our specialty, you know, subsector arbitrators, you know, that are more well versed and Korean or civil law as well. So we have 634 arbitrators at this moment. We review the arbitrator application on a yearly basis as well as our entire panel on a yearly basis as well. Uh And then we also have um 73 new mediators that were newly appointed, which we could talk about a little later on about the mediation program. 

J.P.: That's great. Where, where do most of the arbitrator roster members come from? Are there particular jurisdictions? And, and how many jurisdictions do they hail from? 

Steve: Yeah, I from my, from my memory, I think roughly 30% will come from Korea or nearby regions and then the remainders are actually fairly wide, widely spread apart. And obviously, you know, because uh international arbitration has the largest, largest markets in the US and as well as in Europe. So we have a number of people, you know, from that as well. So I would say I'm gonna have to double check but 30 30 30 so 30 for 30 from the Asia jurisdiction, 30 from the US and the nearby jurisdiction and 30 from the the European jurisdictions as well. 

J.P.: When you mentioned as well, some arbitrators that have specialty subsector experience. What are, what are some of those specialties that that KCAB International can offer to, to users? 

Steve: Right. So one of the issues that have been to say, actively debated and discussed is the balance between civil law, common law or you know, legal system that the users are not familiar with. So the subsector that I mentioned obviously also encompasses their skill sets and whether that's technology, whether that's uh you say platform business or any type of skill sets that are not to say widely available to your typical commercial arbitrators. Our subsector also means that we have arbitration that have robust set of experience dealing with both civil law, common law or hybrid mixture of thereof. Uh So that we could actually offer those arbitrators to users who may be from the US or more more from a common as gen and where their counterpart is from a civilized jurisdiction or some other, you know, legal system jurisdiction. 

J.P.: Wow, that's, that's a really, that's a really targeted approach that seems to make a lot of sense. And, you know, we obviously have an awful lot that we could keep talking about. And I, I think what I'd love to do is reserve my right to uh to bring you back for another, for another episode in the future to discuss mediation and, and some of these role developments that you've been talking about. So I think I'm gonna do that. But let me, let me start to get towards our, our conclusion then and talk a little bit about what we're gonna see. Looking ahead as sort of a precursor to that episode. If there's something that you'd like to see KCAB International accomplished in 2024? Keeping in mind that we're actually now solidly into it. What, what would that be? 

Steve: You know, I want KCAB International to use a phrase, you know, that are widely known in the to the US audience is to be your friendly neighborhood arbitration institution. So here, here are things that, that I want to accomplish. But as you know, as a secretary general, I also have to set realistic expectations and goals for myself and my team as well. Sure, we, we would love to be able to say that we're a global scale or globally recognized, you know, arbitration institution. The truth is that there are, you know, certain roads that we need to travel certain steps that we need to take in order for us to be able to truthfully claim that, right? And, and one of that is, you know, is brand elevation and I'm gonna keep coming back to this, you know, the brand recognition, uh brand elevation is so that people don't have to ask as I mentioned, what's KCAB, right? I want them to ask what are the rules like, how many specific type of cases that have, they had? You know, the questions that you would ask, you know, if you were to be, you know, as we say, dealing with another major institution or with, with a particular set of clients that, that you're actually representing on that as well. The other thing is looking ahead is I'm gonna continue my path to make KCAB International more act, more like a sales organization, meaning that I want them to actually, I want us to approach clients, be able to appeal to the clients in a way that, that they would actually, that they wouldn't actually need us for. So that is coming back to becoming a center for knowledge and information rather than just case management Center. Case management obviously is our core service. That's something that we actually have to nail it down. Do well, you know, be accurate, be cost efficient, uh you know, and be, be confidential and all of that, but that only has a limited, you know, should we say uh scope of appeal to, you know, a certain audience, I want to attract a wider audience by us actually utilizing our network of ex experts uh and professors and lawyers like yourself to talk to our clients, our potential clients about this is how things are moving, this is how the industry is shaping up to be. These are what our biggest clients are asking and what they are worried about, right? So I'm I'm sharing it with you so that you could actually inform like your business strategy and actually, you know, make to say an elevated state and, and enhanced strategy uh to become a better business, you know, in that very competitive field that you're in. 

J.P.: Well, it sounds like there are great things on the horizon and I think we will have to have you back to discuss those some more in the future because I'm really intrigued as I know the audience is to hear more about those developments as they play out. But I think for now that probably should conclude our discussion because we've covered a lot of really valuable ground. I want to thank our guest, Steve Kim of KCAB International for his invaluable insights. And I want to thank you the audience for listening. You should feel free to reach out to Reed Smith or to Steve Kim about today's podcast with any questions you might have. And we look forward to having you tune in for future episodes in the series, including a follow up one that we're gonna have to do with Steve because some of these developments are really, are really marvelous. So Steve, thank you again. And we look forward to having you back. 

Steve: Great. Thanks very much. 

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 [email protected]. 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. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, Opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

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Transcript is auto-generated.

Gautam Bhattacharyya hosts Cyril Shroff for an insightful discussion about India's legal landscape and its future. The pair discuss Cyril’s professional journey to his current role as a distinguished managing partner and pivotal moments along the way. They then turn to key trends, challenges and opportunities shaping the industry, the evolving role of legal professionals in a rapidly changing world and Cyril’s role at SIAC.

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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 I am delighted today to have us our guest none other than Cyril Shroff. Hello, Cyril.

Cyril: Hi. Hi Gautam.

Gautam: It's great to see you as always. Now, Cyril is someone who really needs no introduction. If you just say Cyril, everyone knows it's him. But I'm going to tell you a little bit about Cyril because I've had the joy of knowing Cyril for a very long time and he's, he's a very special person. Cyril isn't just a legendary name in the law in India. He's a legendary name in the law globally and rightly so, uh he is an incredibly highly respected practitioner in many areas. Of law, particularly corporate securities banking, insolvency and infrastructure. He also started out as I'm sure Cyril, you will tell us in the course of our discussion as a disputes lawyer. And Cyril still has an incredible knowledge and reputation in that field such that most recently to add to his many accolades, he was appointed to the board of directors of the Singapore International Arbitration Centre, SIAC something we'll speak about in the course of this podcast. Cyril is the managing partner of Cyril Amarchand Mangaldas, India's leading law firm. It has offices all around India. Cyril himself is based in Mumbai, the wonderful city of Mumbai and the firm not too long ago, opened an office in Singapore and I'm sure there'll be more expansion uh strategies in Cyril's mind, but CAM as it's known is rightly regarded as one of the premier law firms globally, not just in India, it's a firm that, you know, many of our listeners will know very well and I'm sure many of our listeners will have heard of Cyril, have come across Cyril, worked with Cyril, met Cyril. He really is an incredible thought leader in so many respects. So, Cyril, it's a real privilege for me despite having known you for such a long time to be doing this podcast with you. It really is a personal honor. So thank you for joining this podcast.

Cyril: Thank you, Gautam and that was very, very kind of you. Of course, I have known you for now almost three decades and it's been an absolute joy and privilege and thank you for inviting me for this. So I'm looking forward to our conversation.

Gautam: Thank you. I certainly am too. So let me start with this Cyril. Tell us a little bit about who in the course of your long and illustrious career so far in over, in over four decades of practice, um who have been your greatest career mentors and inspirations.

Cyril: That's a great question. Uh Gautam. So as you know, I come from a family of a long lineage of, of lawyers. So the the the firm was founded by my grandfather. So I think it kind of is very natural to assume that some of my primary mentors were from the family and in particular, my uh my late father and who the firm of course, was uh very different during his time. But uh he, he was probably the one who influenced uh my professional personality the most because he was uh extraordinarily hard working and a brilliant lawyer and I worked closely with him. So I think as far as my at least my lawyer personality and uh professional personality is concerned, I think he influenced it uh a lot and some of the lessons uh the sort of basic lessons of life that I learned with him continue uh to be a big part of uh my thinking even today. So I think I would say, like, you know, 50% of the kind of mentorship bucket would definitely go to him. I never met my grandfather, but I think he, he's probably his value system percolated through uh through my dad. So that's, I think part one. And then of course, uh you know, there is a whole miscellany of uh of mentors, both lawyers and otherwise who have worked with because, you know, in, in, in a career of uh 40 plus years, you, you come into contact with so many different people, you come into contact with uh leading businessmen, with uh with bureaucrats, with politicians, with uh just thinkers and philosophers and you know, so many different people. And you think you, I think you learn something from every one of them. But some of the uh folks who had a influence on me have been some of the leading industrialists because uh you know, their evolution also coincided with uh with the growth of India as well. And the concept of, of scale, the concept of believing in the India proposition, the concept of believing in, you know, next and younger generations as well. All of these, I think I probably learned from some, some of my big clients as well. And then I get inspired by all sorts of different non conventional forces as well. I think art is a big inspiration for me, art and artists. So uh when you look at um you know, some of the leading uh artists, whether you know, and depending on whether they're painters or sculptors or whoever, and you go a little deeper and look into their life story. I think you, you learn a lot from them. So uh it's, and these are not necessarily direct mentors of mine who kind of sit and mentor me, but people from whom I have learned. So I think that and I think uh every person including you, we, we are all a collection of the different experiences uh that we've had with people and everything that we've learned or unlearned as well. So you, your collective totality of your persona is made up of all of this and that would be true in my case as well.

Gautam: Thank you, Cyril for that. We are all, as you say, a product of many people and uh and fascinating to hear what you said there, as I mentioned in, in, in the introduction, Cyril, you recently last, well, just in October of 23 you were appointed to the board of directors of SIAC and that's a wonderful accolade. It's great for SIAC. It's great for CAM. It's great for India. It's great for India's role in the world of arbitration. If you could just tell us a little bit about what your membership of the board of CAC entails and how you see that role playing out for you.

Cyril: So, uh Gautam in the, in the introduction, you mentioned that I started off my professional career as a disputes lawyer. That is correct. I think almost for the 1st 10 years, uh I did only disputes work. I became a transaction lawyer almost a decade after kind of starting off. And that experience and knowledge uh is something which I hold quite dear to myself even today. And even as we look at, uh you know, as a corporate governance situations or even just advising our clients on transactions, there's always one part of your brain that is looking at things from a disputes point of view of what could go wrong in this as well. So that's the, the disputes uh sort of DNA that it kind of got embedded at a very early stage in me. Now, that being said after the early nineties, after India liberalized uh in, in 1991 then onwards, I would say I kind of made a shift and pivoted more to the transactional side. And uh and I have been sort of doing that since then though I occasionally do get involved in sort of large corporate uh the corporate disputes. So, uh I think that the SIAC invited me and I think it's for them to really say why they invited me. But I can only guess it was not for my uh experience as a disputes lawyer though, of course, that might have been in the background, I think given who CAM is uh and my leadership position in this what I bring to the table. Uh as a, as a sort of corporate lawyer as, as a kind of a leading corporate lawyer is really the knowledge of India and the Indian market. Now, India is incredibly important to the SIAC it is important because firstly, the number of disputes that uh India is on either side of it, then also in terms of just the rise and rise of India as an economy, I think in the last decade or so, we've seen that story going from strength to strength. So it is important that the uh the, the SIAC has someone who understands the market and can so to speak, deliver the, the market and give it that kind of local presence uh that may be required. Now, that being said, SIAC is an extremely well known and popular institution in India, but there is obviously something more that they must have assumed that I can add and speaking for myself in terms of my role, you asked me about my role. Uh It's just been recently, it's just been a few months. So currently I'm listening and learning and I think uh what I will do in terms of, you know, going forward is to bring a knowledge of where uh the institution can do better in terms of the corporate world, in terms of, you know, government and policy makers as well. It's a, it's a land of enormous opportunity and it is also becoming very competitive. There are so many institutions that have been setting up and there is more coming whether in GIFT City or in Hyderabad, which already has an institution as well. So whilst navigating the complex Indian arbitration space, which is only growing, I think from SIAC’s point of view, they have a uh ally in me. And from my point of view, I think it's uh uh ability to contribute to India's reputation as a world class, you know, marketplace, uh which is willing to recognize the need and uh uh need and the efficacy of international institutions like the SIAC so, but it's while it's still early days, it's uh quite exciting. And uh as I said, uh I'm still learning.

Gautam: Well, that's, um now that's very interesting and I've got no doubt that you'll be making a huge impact on the board of SIAC, especially because as, and this blends into the next thing I wanted to ask you a given India's potential. It's now the world's fifth biggest economy. It's growing. It's a, it's, it's got a very progressive culture, but as we know disputes happen and they're an inevitable fact of commercial life. And India has ambitions to become an arbitration hub.

Cyril: Yes.

Gautam: It's been openly stated at the highest levels of government in India. India wants to become that hub and frankly, I agree with that. And as you know, I've spoken publicly at conferences in support of this, um but I, I just wonder from your perspective, if you could give your thoughts on these two themes, what are your, what's your vision for the development of arbitration in India, or I should say the continued development of arbitration in India? And secondly, what do you think needs to happen to make that dream of India becoming an arbitration hub happen?

Cyril: Thanks Gautam. And again, a question in two parts. So uh I mean, first let's start with the dream of India becoming one of the largest economies and a major, you know, economic superpower in in terms of, you know, how the future will develop. So we are in, we have passed the 75 year mark since independence and have described our journey to India @ 100 as Amrit Kaal, which is supposed to be if you could take a metaphor of a human life, uh that it is supposed to be the most productive and the most auspicious period of a person's life and same holds good for the country. So by every indication, applying that analogy, I think uh India is going to see enormous growth across different sectors, whether it's infrastructure, whether it's health care, whether it's technology, whether it's, you know, just public services uh and soft power in terms of the, you know, the entertainment that we provide music, movies, whatever that every aspect of life is meant for and is destined for greater growth. Now, in even so much growth is happening. As you rightly said, there are disputes and one of the sticks that India always gets hit by is the fact that your dispute system is too slow. Your courts are overburdened. You know, it takes decades to get something resolved and that becomes a dampener in terms of the confidence that uh foreign investors have, uh or, you know, just counter parties, commercial, counter parties have when they're dealing with India. So, uh that's something which we have to fix and it keeps coming up not only in individual, you know, negotiations, but it keeps coming up. Also when there is a zoomed out view that is taken, for example, in the World Bank ease of doing business index or you know, any measure there is the one of the minus points that India always gets is your disputes, your enforceability of contracts and dispute resolution needs to do better. So we, I think we are self aware of that as a nation. I mean, the Prime Minister downwards, everybody has mentioned it. The fact that we want to become an arbitration hub is an expression of that intent that we kind of realized that we have a problem here and we want to fix it uh because it is something which is going to have a direct impact on our economic growth. And it's not, not a nice thing always to export all your disputes uh outside India because implicit in that is that, you know, you guys are not able to fix the problem domestically. Now, there will always be a mix of domestic and foreign. But the fact that we need to become more efficient is common ground. So India needs to really up its game on uh uh on you know, faster disposal of disputes and enforceability of contracts. And one obvious outcome of that is uh mediation and arbitration because these are the, the court system can only be stretched to whatever extent it can. Even if you were to double or triple the capacity, it's still not going to solve the problem in terms of just the backlog of uh o of cases which even if you apply a reasonable mathematical ratio, it's gonna take 300 years to dispose of today's backlog. Now that can't be right. So arbitration comes as the obvious solution uh for that with the combination of domestic or uh uh or, or, or international. Now, having set this vision for being a leading arbitration center in the world and the question then becomes, you know how so uh as we are, as we sit today and we are having this conversation, a lot of changes have happened legislatively as well as in terms of leading judgments of the Supreme Court. And it would be fair to say that we are now uh quite an evolved pro arbitration jurisdiction. A lot has happened in the last decade. Uh many amendments in 2015, 19 and uh last year as well. Uh The courts have gone out of the way from, you know, there, there was a period of time when there was some vacillation on this. But today, now I think life is very clear that we are pro arbitration and a lot of uh impediments in terms of efficient arbitration have been taken away. So the foundation I think is well set the second part of your question on, you know, what is, what do we, what does India need to do for making ourselves an even better arbitration hub? So many things, uh I think firstly, it should just continue in the same stream where courts are uh recognizing and honoring the intent to be an efficient arbitration hub. The second, I think a couple of practical suggestions, I think what we need is separate arbitration court and bar so that there is more consistency. We need third party funding which we don't have today. We need the imposition of costs for frivolous appeals and challenges we might need to make mediation mandatory. So as to see if we can cut down disputes, even at that stage, the state and the public sector are the biggest litigants. Uh and a lot of the areas are uh can be placed at that door. So there is a policy and a cultural reform required in terms of how the state should participate in early dispute resolution. And a number of efforts have been made towards that So the state should sort of consider, you know, moving away from ad hoc to uh institutional arbitration, that will be a big change. And there are already some schemes. So, so for example, there is something called the Vishwas. Vivad Se Vishwas, which basically means resolution of disputes through discussion and through negotiation. And it's uh it's a uh it's a, a way of resolving uh disputes where the government is on the, or the state is on the other side. And if you're already a judgment holder, so there's a mechanism by which you could pay a certain percentage of uh uh uh uh or you can settle for a particular percentage of your claim and it's disposed of and you're saved from a whole appellate procedure which could drag on for years. And I think that's an example of a very progressive, innovative idea of breaking down the arrears as well. But again, now zooming out again, in terms of what should be done, I think the efforts of keeping up the pro arbitration spirit. Secondly, a number of tactical reforms like the kind that I mentioned to you. And I think the third is as far as the state is concerned because they account for a large part of the volume is to kind of get them to the, the table and dispose of so that there's no unnecessary litigation. Uh And there are, you know, the reason which we will get to on some other occasion on, you know, why do the state entities, uh, you know, carry everything upwards to the Supreme Court because, uh, you know, there's, uh, there, there's no downside to doing that. Uh, so long as, you know, you, you're, you're fighting it and waiting till, uh, till the highest court. So if you do these three things, I think we'll be making a big impact, uh, in terms of, uh, making India a much more efficient uh dispute resolution and enforcement of contract jurisdiction because that's the bottom line. It's not arbitration for its own sake. It's about enforcing contracts and resolving disputes.

Gautam: Thank you, Cyril. That was a very interesting set of responses to the, to my questions. And I just wonder whether I could follow up with this because I agree everything you've said I'm in, I'm in total agreement with you and I'm a firm believer that India will become that hub. And I think it, and it shouldn't take that long. I mean, people often say, how long will it take? I don't think it should take excessively long to achieve that. But one of the things that I wonder if you could just address is this one of the criticisms that's often leveled at arbitration in India is that very often most of the arbitrators are retired judges and that leads to inordinate delay in the process, truncated hearing slots which suit the judge, but not the parties, the former judge and not the parties. And also if I recall correctly, I don't have the exact date when this happened. But I think there was a recent high profile conference in India where the president of India made a comment that one of the things holding back arbitration is the obsession with appointing judges as arbitrators. So now CAM itself has got a number of excellent lawyers who practice arbitration. And I would have thought as is as is the case in the UK in the US and other countries that seasoned practitioners at leading law firms should be also taking appointments as arbitrator. Now, what do you think about this? Do you think it's a cultural shift that needs to happen? Is there too much deference given to former judges? How do we move the needle on this so that we actually get a much broader base of arbitrators in India? And also we ensure more women are represented as arbitrators in India.

Cyril: Uh Thanks for that. Very, very interesting uh question a couple of things. I mean, firstly, just so that's the psychology of why we've seen more retired judges being appointed as arbitrators. Firstly, a couple of reasons in the past, I know this is changing. One is that practitioners, particularly leading practitioners are too busy. So there is a lack of availability of practitioners who have the time because they are, I mean, either there could be transactional uh lawyers who are busy with um you know that kind of day job or senior advocates who, uh, are also busy in court all of the day. Whereas, uh, retired judges have more availability of time. But again, that's, uh, you know, uh a circular question because then at some stage they become part of the problem. So there are a couple of responses that we need. One is I think there should be a general shift towards more institutional arbitration rather than ad hoc arbitration which involves name judges. On a, on a lighter note, I have seen clauses which say when the arbitration clause which actually says anyone other than a retired judge. So uh it's kind of the the conversation. So that's uh that's a kind of an indication of how this conversation is evolving, but it's not there yet. What are the other solutions? I think younger retired judges, uh because they are kind of more aware of the best practices and maybe willing to kind of move a little faster and they might have, you know, relatively more availability of time. Senior practitioners could also be kind of incentivized to take these roles. Uh And particularly when there's a very specialized kind of uh of dispute and the practitioners have the required background. Uh It's not yet very common. So I think it requires some cultural changes to make that happen. Uh The third part, which is kind of a little away from the, the, the judge's question is the arbitration act as you know, has been amended to provide a maximum period within which the case has to be disposed of, uh, one year. And otherwise there has to be reasons, then you have to get the time extended and all that. So all that I think is also helping. So cumulatively, all of these changes are having an impact. I think in the short run, you will see a bit still more, uh, kind of uh uh the old habits die hard as they say. So you'll still see more judges uh being appointed. But the the the kind of the mood has changed, we are seeing more uh practicing lawyers come in as well. So some of our partners, for example, Shaneen, and you know who uh is an arbitrator, we see her, you know, getting a lot of appointments uh as well and that, that change is happening, but it's a, it's a slow process before you develop. It goes back to the point I made uh a little while ago that we need a uh a larger arbitration bar.

Gautam: Thank you. Cyril, yeah, I think these are debates that will run and run for a while, but I've got no doubt that things will fall into place and I think there'll be so much momentum that at some point things will just happen as they're happening now. Thank you for sharing your thoughts on that.

Cyril: Look on the arbitration institutions. Also, we are seeing the rise of so many new arbitral institutions in India, whether it's the MCIA or now the IAMC in Hyderabad or the Indian Institute at, at Delhi as well. Uh There's a new one coming up in, in GIFT City uh in Gujarat. So when you add all of this together, there's a lot and they're all, you know, in the institutional model. So, you know, of course, uh SIAC and other international institutions will have their place and they bring a certain prestige to it. But the the the rise and rise of Indian institutions is also happening concurrently. So I think India is serious about solving this problem. Secondly, there's a regulatory push also. So uh the Securities and Exchange Board of India SAB has recently come out with a circular which requires an online dispute resolution ODR uh using the arbitration method as well. So, you know, the the Indian disputes ocean is large and you can only drink it kind of gulp by gulp. Uh You know, it's, it's very hard to swallow the whole, you know, the ocean in one gulp.

Gautam: Yeah, it's, it's far too much of a gulp for sure, you know. No, no. Well, thank you for that Cyril. It's, you know, it's been a fascinating discussion with you and thank you for sharing your thoughts. So candidly and so interestingly, I, I want to, as I do in these podcasts, I always like to end these podcasts. With some more lighthearted discussion. And I, and we know from our, from our feedback that our listeners really enjoy the lighthearted discussion as much as the more formal discussion in these podcasts. So I want to maintain that tradition and ask you some lighthearted conversation. So I know that you're a doting grandfather, you've got a lot of, you love to play with your grandchildren. But what are you, what are the other things that you do in your spare time that really excite you?

Cyril: So, quite a few things uh I am a big Bollywood buff. I think that's a very well known uh well known fact. And you know, I've always been fascinated by uh how some of the best movies made in India are a reflection of uh of Indian life and culture and you learn a lot from them. So, III I love the movies. I am an unabashed foodie as well. But on a more personal note, one of the things which I like doing though, I don't get enough time uh is painting uh as well. So I like to kind of use the other side of the, of the brain for that. And I find not only therapeutic but I think also creative. And when your one is in the zone trying to create a piece of a piece of art, are you actually fine, actually find that in the week thereafter, my work is better as well. I don't know what the, the, the, the medical or the chemical explanation to that is, but it's a fact. So I do like, sort of doing that. Uh, I love to travel. It's, uh, it's, travel is not the easiest thing in today's, you know, crowded flights and crowded airports, but nonetheless, just seeing new places and, uh, having new experiences, something which I enjoy. And that's a big part of, uh, who I am.

Gautam: On the subject of travel, name, a few places that are particularly dear to you when you do travel.

Cyril: So top of the list of course is London. Uh because apart from being a very interesting uh cultural place, I've always seen this as a sort of an intellectual capital of the world, the sheer variety of people from across different disciplines and not just the law, I mean, there's just so many things that you meet over there on any single trip is incredible that that variety and depth uh hard to find anywhere else. So I think that would be one of the from a city's point of view. But I like uh uh uh you know, very different uh mix of travel as well. So last year we went on our first kind of Maasai Mara Africa safari as well. I found it, I sent you some pictures as well. So that was uh awesome. I also like to go to places which have a lot of historical values. So recently in December, we were in Spain and, you know, quite a lot of time to spend in, in museums, uh and, you know, visiting various and, and seeing various works of art as well. So that's sort of, there's a, so it's a balance between, you know, the more advanced commercial cities as well as just where there is almost no commerce but uh just where you get different life experiences.

Gautam: Thank you, Cyril. Well, it's been an absolute privilege and a pleasure to do this podcast with you. Thank you very much for taking time out to do this with me. I have known you for, um, three decades now. Uh, and, um, every conversation I have with you is always, always contains something I didn't know about you. And, uh which is one of the joys of these discussions and why it's always really nice to talk about these sorts of mutual topics because something new always crops up. And so look, thank you very much for taking time.

Cyril: I have a question for you.

Gautam: Of course, you can.

Cyril: What keeps you going? Because I've seen you, uh, you know, working very hard over so many, so many years as well. And, uh I don't think any signs of, of slowing down as well. What makes Gautam tick?

Gautam: Well, no. Wow. You know, this is, I mean, I, I, I'm delighted to answer your question. It's the first, you know, Cyril, you're, you're also a man of firsts because you're the first podcast guest who's turned the table and asked me a question. So, no, I think it's a, it's, it's, again, it's a multifaceted thing. I owe everything to um my, my, my late parents and they continued to be a great inspiration to me and my desire to make them proud and happy will always be a thing that makes me tick in a big way. Um Secondly, my family who, of course, you know, my wife Emma and our children are a constant source of motivation for me and make me tick and they want to make me do things better because they make me better because they inspire me. Um And thirdly, I just think, um, you know, there's a lot of, we get so much passion from the people we work with and we constantly learn. I mean, I think every thing is about, um every case, every matter that we're involved in is about teamwork and it's about um learning, solving problems, finding solutions, being creative, going to your, your thought about art, about being creative and it's just, you know, and just always trying to be better, you know, you know, trying to be better and think. Well, what could we do better? What have we learned from this? What can we learn from this? And, you know, and it's actually interacting with so many people over the years who've become such dear friends, you know, we started working together from lots of different jurisdictions and I'm blessed to count so many people in many jurisdictions now as personal friends. So that is a very truncated question- answer rather to your incredibly incisive question. And thank you for being the first podcast guest to have turned the tables on me. So, uh but no, thank you very much. I really enjoyed this uh Cyril and I look forward to seeing you very soon and I wish you all continued success in everything. You know, I'm, I'm going to end this podcast in the way that I, that I opened it, which is that you are a, apart from being an incredible person, you are an absolute legal legend and you've set the benchmark for so many of us all around the world by what you've achieved and what you continue to achieve and what you stand for. So, thank you very much for that too, Cyril and I'll see you very soon.

Cyril: Thank you Gautam you've been very kind. Thank you.

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 [email protected]. 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.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

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Transcript is auto-generated.

Kristin Campbell-Wilson, executive director of the recently launched Abu Dhabi International Arbitration Centre (known as arbitrateAD), talks with Dubai-based partner Antonia Birt and associate Laura Adams about the establishment and mission of arbitrateAD. They delve into how the centre fits into the global arbitration landscape, how it differentiates itself from its competitors, and what the new rules will offer arbitration users.

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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 and with that, let's get started.

Laura: Welcome back to another episode of Arbitral Insights. I'm Laura Adams, senior associate in the Energy and Natural Resources team. I'm here today with Antonia Bert, a partner in our Global Commercial Disputes team here in Dubai. And we are thrilled to be joined by today's guest speaker, Kristin Campbell-Wilson, executive director of the newly launched Abu Dhabi International Arbitration Center known as ArbitrateAD.

Antonia: Welcome. And congratulations Kristin on the role. Uh and the very exciting launch of ArbitrateAD uh you joined ArbitrateAD in late ‘23 to establish the institute with the ambition to grow it into a leading center in the EMEA region. Uh But of course, you're no stranger to arbitration. You have two decades of international arbitration experience. Uh most recently with the SCC Arbitration Institute where you worked as Deputy Secretary General and then later Secretary General prior to this in private practice. And in your role at the ACC, you led various key projects including projects that really put the ACC at the forefront of technological developments. Uh Specifically, I was thinking of the development of the first digital platform for secure communications and file sharing. So we are very excited to have you here. I know you're also on the board and on committee positions of various organizations including the IBA, uh the IBA 40 editorial boards. So you're bringing a wealth of experience into the region and we are very, very happy to have you on board. So welcome again. Let's start with an overview of the arbitration sphere here in the region and how and where ArbitrateAD fits in. As many of our listeners will know ArbitrateAD replaces the Abu Dhabi Commercial Conciliation Arbitration Center known as ADCCAC and also its rules and the rules - the new rules have come into force on the first of February this year 2024. ADCCAC was originally established in 1993 by the Abu Dhabi Chamber of Commerce. And despite significant updates to the old ADCCAC rules in 2013, criticism has plagued the center with respect to efficiency. Another sort of relevant aspect I wanted to mention is the ADGM, the Abu Dhabi Global Market that was formed some time ago, following which there is an arbitration center that was opened by the ADGM. But that center of course is not an administering institution. It has stated the arbitration facilities but not a center in the way that we know it as part of the arbitration industry. So given all this, it's of course, also no secret that a lot of the arbitration users in Abu Dhabi have previously selected the ICC and the ICC rules for their arbitration clauses. So with this little piece of background, can you give us a brief introduction to ArbitrateADD, the background to its inception and where it fits in within this arbitration landscape?

Kristin: Sure, I'd be happy to um first let me just say thank you for inviting me to be a part of your podcast. Very excited to be here. So thank you very much for the kind invitation. So the Emirates of Abu Dhabi is an economic powerhouse in this region and it should offer domestic and international business, reliable and efficient dispute resolution services, befitting its standing. And while there is the ADGM to promote business and investment in the emirate, they do not, as you pointed out, administer disputes. The Abu Dhabi International Arbitration Center is the ambitious initiative of the Abu Dhabi Chamber of Commerce and Industry to provide that missing piece of the puzzle for a healthy and sustainable business ecosystem within Abu Dhabi, addressing those voices of concern by establishing a new governance structure, new rules and bringing in a new experienced team within both the secretariat of the center but also on the Court of arbitration. And in doing this, uh we will, you know, provide a neutral forum for global business, upholding the principles of integrity and efficiency to ensure excellent dispute resolution services available to businesses doing business here and, and in the region.

Antonia: Yeah, absolutely. I couldn't agree more. I think Abu Dhabi was very much ready for this. Um So they, they are really looking forward to seeing how this all develops. The UAE has a number of institutions already, not in the ADGM but uh for example, in Dubai, the most well known is probably The Dubai International Arbitration Center which has reported very significant growth in recent years. And you will have seen the recent statistics for uh 2022 they registered 340 cases which is a record number uh with a total amount in dispute of in excess of 11 billion Durham. And the numbers have been growing year on year. A part of this increase has been led by the decree 34 2021 which abolished an arbitration center at the DIFC-LCIA and transfer that caseload to DIAC. However, DIAC of course, is also working very hard on becoming a key player in the region having published new rules recently. And uh also updated its arbitration court with excellent court members that are very established in the region. Plus also various other developments including the mediation rules and metaverse related developments and then DIAC of course, is not the only other competitor. You also have other established institutes such as the Saudi Center for Commercial Arbitration in the kingdom or the Bahrain Chamber of Dispute Resolution. And I and I note that Saudi Center has set its vision to be the preferred ADR choice in the region by 2030. So my question is, it's very clear there is demand for arbitration in the region. But how does ArbitrateAD differentiate itself from the other arbitration centers regionally and and indeed globally? And, and how do you think will it compete in this somewhat crowded market?

Kristin: Well, I'm not sure I would say that the market is crowded necessarily. I do believe competition is good and it will keep everyone on their toes for the benefit of the users. All arbitration centers provide the same fundamental service which is to resolve disputes for businesses. However, we do it in slightly different ways and for a different price. We have brought, you know, some of the top names in domestic and international arbitration to sit on the Center's court of arbitration. We've brought in experienced professionals to the secretariat and we have the most modern and up to date arbitration rules, one could wish for So I think this is a good platform upon which to build reliable, efficient institution in this region.

Laura: Excellent. Thank you, Kristin. And now just moving on both Antonia and myself, saw you speak at GAR Live in 2024 Abu Dhabi. Now you're talking there about the launch of ArbitrateAD and the challenges faced in producing a robust set of rules. So what are the key features of Arbitrate AD's new rules? And how do you feel that these stack up against other international institutions rules?

Kristin: Yes, thank you. Well, in drafting the arbitration rules, we have drawn from what has been developed over the years and we picked those features which we believe serves the users best and in bringing these together, we offer something rather unique, which is that we will ensure the high quality of awards through the scrutiny process. And we will also promote efficiency and expeditiousness in the procedures for instance, by the various different rules such as expedited proceedings, provisions on the appointment of emergency arbitrator. And then, you know, in addition, we have a number of provisions obligating all participants to the arbitration to act in a way which promotes efficiency and expeditiousness. Our digital case management platform DocketAd uh serves this purpose as well internal procedures and policies to ensure the responsiveness on the part of the secretariat et cetera. So I believe it's the full package that will help ArbitrateAD excel into the, the top spot in the region. And that is uh if that is, you know, done soon or a bit further down the line is less important. What I think is the most important is that we are building that very, you know, much needed foundation upon which to build a center that will become and remain the preferred choice in the region. Also in 100 years from now.

Laura: Thanks Kristin. And you've mentioned there the, the challenge of balancing effective scrutiny against the need for expediency and efficiency in the management and administration of cases which I think most practitioners would agree is pretty crucial. You also mentioned article 36 there and the expedited procedure that you have for the smaller disputes. I know we also have article 31.3 which looks at the provisions and the express provisions provided to the tribunal which provide that the tribunal has the broadest of powers in administering proceedings. Do you, do you feel that these rules go far enough to ensure expediency whilst also emphasizing efficiency and scrutiny?

Kristin: I do, I I also do not think that uh scrutiny and, and uh you know, an emphasis on expeditiousness and efficiency are each other's nemesis. The rules contain provisions and tools which may be relevant in a case. Not in all cases, it is basically to facilitate any procedure and it offers the parties a toolbox with tools to use depending on the circumstances of the case. If a particular provision is considered necessary to use in a particular proceeding. And that lengthens the proceedings that is not necessarily the wrong course, but rather it's important as a center to have multiple tools for the parties to choose from. However, I do believe it is the responsibility of all the participants in an arbitration to be loyal to the proceedings. And the rules do contain provisions to sort of keep uh the participants um sort of in line with the expectations of the process or, or honoring the process itself. So we have put in place the obligation for the parties to be loyal to the proceedings and, and uh if they unnecessarily obstruct the proceedings, we have allowed the tribunal the discretion to allocate the legal fees, uh taking into consideration the the activities of the parties and how they have contributed to the efficiency and expeditiousness of the proceedings. And of course, the secretariat also possessed this or has this obligation to serve the parties and be responsive to the needs of the parties. We feel that we have a few checks and balances built into the, the rules themselves to, to promote efficiency.

Laura: Thanks Kristin. That's really interesting. And we'll wait to see how, how that develops. Moving on one feature we'd really like to discuss is the composition of the arbitration court. Now, of course, we have Maria Chedid who's been appointed as the president of the court and this is a landmark moment here in the UAE as it's the first time a woman will serve as the president of an arbitral court in the Middle East. This significant appointment really is a milestone for us in terms of advancing women in law and promoting gender diversity within the international arbitration community. In addition, uh now the new Court of Arbitration under her leadership is composed of 15 leading international arbitration practitioners, nearly half of whom are women. So again, this is a great indication of the big steps forward in terms of gender diversity here in the region. Again, this is great for us because it remains a key goal for the arbitration community here and globally to continue with the progression of gender diversity. And also, of course, it's a particular victory for firms such as Reed Smith and for other institutions and organizations who have been involved in the equal representation of arbitration pledge to see the development here in terms of having our first female president of a court of arbitration. So my question to you Kristin is, is how will ArbitrateAD continue to work towards furthering gender diversity, for example, in its panel and uh when selecting arbitrators,

Kristin: I think the center can do so in in many different ways. And uh one of course is, you know, the appointment of arbitrators. I do believe that this is something that we will develop together with the court of arbitration. So exactly how we will be doing this in practice, I I can't say to you or explain here and now. But what I can say is I do envision us working in a similar way as in my previous jobs, for instance, in, in 2022 after a number of years of working to promote sort of uh well female arbitrators and get them appointments. The previous center that I was head of appointed 54% women in 2022. And that was my last year as Secretary General of that institution. So it it is a very important aspect and the centers and arbitral institutions can help a lot. However, we can only do so much. And it's very important that when parties appoint their co-arbitrators, that this is something that they think is important. We saw that year on and year out that it didn't necessarily increase among the co-arbitrators or party appointed arbitrators, but the institution clearly can do something to contribute. But most arbitrators are not appointed by the centers themselves but rather by parties. So I think it's a common effort and that is important. And um I'm very happy to be joining this center where this has been a very strong drive on the part of Maria. I think it is very cool to, to use that word that the initiative, you know, sought to seek out a female president as well as an executive director. So I think, you know, we're on a good way to to promote female practitioners in this space. So that is one way. But then you know, there are of course other ways of ensuring that you have female speakers on panels that you invite and highlight female practitioners and arbitrators any way you can. I do also think that it's very important that this is a an equal, that it is indeed a drive to seek equality rather than only promoting uh female arbitrators. There, there are very good male arbitrators. But I think, you know, the the 50/50 mark is, is one to aim for.

Laura: Thanks Kristin and we, we couldn't agree more here at Reed Smith that it is also the obligation on council to be putting forward female arbitrators in front of their, their clients. And it's something that we feel particularly strongly about and we, we hope the community here and globally will continue to do that and that it will enhance the position that we we are in.

Antonia: Yes, I couldn't agree more with both of you. And um yeah, as part of the equal presentation pledge, I'm working, we're focusing specifically on parties, users who arbitrators because absolutely right. That is the next aim. Um But, but we're also very keen to see statistics from the institutions here in the region. So of course, with the ArbitrateAd coming on board, we will be very much looking forward in the next few years to see how the numbers stack up. But yes, really great to have you at the helm of this. And as you say, your previous institution has a fantastic track record. So we are very much hoping for for that in the region. So moving a little bit to um another topic we wanted to talk about the transition of caseload. So the ArbitrateAD rules apply to arbitration proceedings commenced after the first of February 24 where parties previously consented to arbitration via the old ADCAC rules and those disputes will now be administered by ArbitrateAD. There are various provisions relating to, for example, emergency arbitrators expedite proceedings that you know, may not automatically apply. So that's quite clear. And then we understand that all ADCAC or existing ADCAC arbitrations will continue to be administered by the existing team. And then I think you also mentioned, uh which of course mak es absolute sense that parties can also um submit to uh administration by the new ArbitrateAD team, even if they have an existing arbitration that's currently being administered by ADCAC. So with respect to the sort of transition of cases and case law, do you have any measures in place to ensure that there's a smooth transition both with respect to sort of any, you know, existing cases that are coming in now from ADCAC or new cases that are being filed and that are now subject to your rules. Whereas previously they were subject to ADCAC rules or how will all this be administered in practice.

Kristin: Yes. So we have said that parties to existing cases pending with the ADCAC team are welcome to submit their case to the new rules and to be administered by the new team. But of course, it, it requires party agreement that is the sort of the fundamentals of it. But then I think it's important to parties who are thinking about it to, to also acknowledge that the the new arbitration rules also come with a different schedule of fees. So the new schedule of fees would apply to those disputes. And if required, we may need to collect additional advance on costs for instance. And I think in, in, you know, to talk about the practicalities of this, you know, any, any moneys paid already for to cover the cost of the arbitration to ADCAC would be moved to ArbitrateAd’s bank account. And we would administer that deposit for the parties throughout the rest of the proceedings. There's one other practical aspect which is that we will be administrating the cases or such cases on the digital case management platform DocketAd. So if you have a pending case that's been ongoing for a while, there's a lot of material that needs to be uploaded onto the particular site that will be designated for this case on DocketAD and that would be the responsibility of the parties and or the tribunal to populate that site that will not be done by the secretariat, but rather by the parties.

Antonia: Well, that's really useful to know. And I'm sure a lot of our listeners will um will be thinking about these kind of sort of transitional practicalities. So it's really good to hear that um you know, you're prepared uh prepared for these kind of issues because inevitably, of course, as you're going through a transition and these kind of issues will, will pop up. So that's that's all really usefu thank you for sharing. Also somewhat transitional my, my next question is about the type of caseload that you're expecting. On the one hand, of course, this is a new institution. On the other hand, all um agreements subject ADCAC rules will now be referred to ArbitrateAD. So do you have an idea as to the type of case load that is coming your way? Um and also potentially any specific industries that you're expecting to see more of uh than others.

Kristin: So it's difficult for me to give any sort of detailed account on on what to expect because we do not know how many cases we can expect this year. I'm happy to say that we have registered our first case recently. So that's very exciting, of course. But whether or not, you know, the influx of cases will be large or small to start out with, it's more difficult for us to say. But based on the statistics or the information that I have received on the ADCAC caseload. And considering we will be administering ADCAC clauses going forward, I would say that the majority of cases are expected to come from the construction industry likely to be in the English language as most of the cases currently registered with ADCAC are managed or administrated in the English language. But I I do see that where I would hope to see more commercial cases in the caseload of the new center. I think the, the ambition from our end is to be, you know, every industry's preferred choice. And I think we are, you know, very well set to cater for, for both, you know, or any kind of case, but you know, both commercial and not necessarily only construction cases. So we look forward to a diverse portfolio of disputes.

Antonia: Fantastic. Well, we'll be uh uh watching keenly as this develops and I'm sure we'll ask you this question again in a year in a year or two. But um I, I wouldn't be surprised exactly as you say that uh the, the, the the cases will be, will be varied and mixed so that all sounds very positive. Um And you've mentioned just now that, you know, of course, the aim is to become the preferred institution. The institution of choice. Abu Dhabi entities are known to support arbitration. Many entities have arbitration agreements in their contracts and many have ADCAC clauses. We have already had queries from Abu Dhabi clients regarding amending those clauses uh uh to ArbitrateAD so very happy to say that um I have shared the model clause already but um in terms of sort of also taking into account the ICC of course, which has established itself as a very strong competitor in Abu Dhabi and is also attracting um a number of users that included clauses in the agreements. What you know, what is it that ArbitrateAD will do to encourage entities to select it in its agreements. And and of course, feel free to consider entities outside of Abu Dhabi as well.

Kristin: So I think historically, parties haven't really had much of a choice now. They do. And so I think that is a healthy development going forward. I do think that we will compete, of course with the ICC on, on price and expedient, we both will offer scrutiny as part of the package. But I think, I think it's good for people to have a choice if you didn't have one before you do now. And like I said earlier during our conversation here today, you know, all all centers or arbitral institutions, we aim to serve the users with, you know, hopefully efficient and reliable dispute resolution services, but we do it in slightly different ways. And it's kind of like you do when you decide what car you want to buy, you know, you might have a preference for one kind of car, you know, before another and you may have that preference in terms of arbitral institutions too. But I think the choice is very, very important. You need to have a choice and then it's up to, to parties to agree. And if you can't have your preferred choice, you need to know what the second, you know, the second best choice would be for you in your dispute or potential dispute. So I think the the market is big enough for, for both, you know, ArbitrateAD and you know, the continued success of ICC in the region.

Laura: Thanks Kristin. I, I'm sure you're correct there. I'm sure you are. Just moving on slightly and we've touched on it possibly related to this, this choice point. Um And now obviously, we know that some of the frustrations that come with um come with choosing an arbitration institution, relate a lot to case administration, uh your predecessor possibly struggled in this regard. And there are some institutions that, that do put a real emphasis on swift case administration. And of course, this has a huge impact on um user experience. So in, in terms of the case management team and and the things that you have in place at ArbitrateAD, what can we expect to see in terms of, of what you have to enhance expediency and user experience?

Kristin: I think a lot of the differences will be partly based on the new features of the new rules as we, you know, talked about earlier, there are a lot of different tools in the rules and a push for efficiency and expeditiousness built into those rules. The responsiveness of the secretariat is of course, very, very important. And that is something that I also bring from my previous experience. The institution where I had leading positions for 10 years is known to be very efficient and the majority of cases were terminated within 9 to 12 months. And, and that is, you know, really good statistics, administering nearly 200 cases a year. So I come from a background where this has been a very strong focus and something that I, you know, aim to bring into ArbitrateAD it is our purpose to serve the users and uh they come first. And so uh I look forward to, to replicate the success of my previous institution in that regard. In building the case management team it's really important to me to have uh people come on board who are already well versed in international arbitration because I need people to help build the new center and they need to be able to hit the ground running pretty much. So that's very important. Then I do look forward to contribute to enhancing, you know, knowledge and capacity building in the region going forward. But the most important thing here now is to create a case management team that is very strong in international arbitration and that can help establish the center and, and give us the best possible circumstances upon which to reach our goal.

Laura: Thank you. I'm sure our listeners will be, will be keen to, to hear that and, and take that forward. And of course, you mentioned earlier that ArbitrateAD will be using DocketAd, which is a new platform on which it will be hosting communications and file sharing between arbitrators, parties, council, et cetera. I understand that you'll also be moving towards being a paperless institution. Can you tell us a little bit more about the use of technologies by ArbitrateAD and and how this might enhance the user experience?

Kristin: So the the the DocketAd is the case management system through which the center will be communicating with parties and tribunals and upon which the parties in the tribunal themselves will communicate and and share their their case file. I think this is, you know, a very, very important thing. Uh something that we also saw at my previous institution to be very beneficial to the efficiency of the proceedings. It provides also the secretariat with a tool that facilitates the work of the secretariat as well, freeing up more time to do other things in addition to administering the cases. So I think it is the way of the center, the new center to come up with new additional tools also build on and develop the the case management system itself. But to come up with other ways of also facilitating and promoting sustainable practices.

Laura: And you've mentioned their additional tools. Are you able to tell us more about what those additional tools might be?

Kristin: For instance, there, there are possibilities of, of plugging uh or, or adding other software systems that are used by law firms. For instance, in uh when it comes to exhibits and evidence, there was one very uh one single product in Europe that we found was very much used or predominantly used among our users that we partnered up with and made it possible for law firms to basically upload their own folder structure onto the platform the way it was. That was a very efficient way of handling the evidence. And I can see that that is a possible development that we can also look into here. Need to first learn more about what products law firms use over here if they're any different than the one that I'm used to. So there are, there are ways I do know that the provider of the platform itself or the software uh is continuously developing it. So there will be features coming and there will there are features already built into the platform that we may sort of turn on as we go along. But I think it's important at this very early stage to have the buy in from the users. Uh It should be easy to navigate and to understand. So you don't want to clutter it too much, too much stuff in the beginning. But as we make people more comfortable with using the platform, we may sort of add on additional features.

Laura: That's really interesting and I'm sure the the efforts to streamline um processes using, using those additional tools will be a welcome edition here. And and finally, thank you for those thoughts. But finally, moving on, are you able to tell us about any exciting upcoming plans or any insights into how ArbitrateAD will be going forward in the next 12 months?

Kristin: Well, what would be the fun in doing that? So, you know, you need to leave me some, some room to surprise you? I think there's a long list of things that uh I envision us doing in the next 12 months. But you know, I'm new to the region I have noticed in my five months here that things take slightly longer than expected perhaps. So it would be very unfortunate if I sit here and promise you certain things in in the next 12 months. But I assure you that I will not make you disappointed, but you know, I will keep those exciting developments as surprises and as small gifts throughout the year.

Laura: Excellent. Well, thank you. We, we do wait to see uh wait to see how that develops. Well, thank you very much Kristin, for those incredibly helpful insights into ArbitrateAD, we are very excited and look forward very much to seeing what, what the next 12 months in the near future has for the Abu Dhabi Arbitration Center. Uh So thank you for joining us and thank you to our listeners for tuning in.

Antonia: Thank you very much. Also from me, uh Fantastic thoughts, uh some really good questions answered here, which I'm sure everyone will be keen to hear the answers to. So, thank you for joining us today and um thank you also to all the listeners.

Kristin: Thank you very much for having me. It was great to talk to you.

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 [email protected]. 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.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney client relationship nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome/ Any views, opinions or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

All rights reserved.

Transcript is auto-generated.

Gautam Bhattacharyya is delighted to welcome arbitrator Hasit Seth for a conversation that delves into Hasit’s career trajectory and discusses the individuals who have shaped his professional journey and influenced his approach to arbitration. The duo then explore the evolving landscape of arbitration and thoughts for the future.  

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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 and with that, let's get started.

Gautam: Hello, everyone and welcome back to our Arbitral Insights podcast series. And I'm delighted today to have as our guest on this episode Hasit Seth. Hi, Hasit.

Hasit: Hi Gautam.

Gautam: It's really nice to have you on. I'm really excited about our conversation. Hasit is uh a, an Indian lawyer based in the wonderful city of Mumbai. He's also a part from being an independent counsel, he's an arbitrator and mediator and he's a fellow of the Chartered Institute of Arbitration. He has a very interesting academic background which in many ways instructs his practice because he a part from having a commercial practice, also has a technical specialism in a number of areas in the law. He has a Bachelor of Science in Computer Science and two master's degrees as well as an LLB. He has studied in the U.S. as well as in India. And apart from being an incredibly talented Council, he's one of this new generation that I really love these new arbitrators who are coming in, breaking the mold and gaining real profile. And I mentioned in my introduction that a part from his commercial practice, Hasit has a technical, a technology side to his practice, which emanates from the fact that one of his master's degrees was in intellectual property. So he has a broad range of talents. And I'm very excited to speak to you Hasit. And apart from being an arbitrator in India, I will just say that Hasit is also empaneled as an arbitrator in many other arbitral institutions regionally and in the Middle East. And I've got no doubt that his name is one to watch in the world of sitting arbitrators. So once again, a very warm welcome to you, Hasit.

Hasit: Thank you very much Gautam. And I really appreciate uh Reed Smith's this series of podcasts, Arbitral Insights because I got to know of many people through your podcast who I would not have come across. People from West Indies, people doing mediation and many other names. So it's really exciting.

Gautam: That's very, very kind of you to say. And uh it, it's a real privilege to have you on the series. Let me uh start with what drew you to law as a career in the first place Hasit?

Hasit: Yes. So, uh I, I have seen you, heard you asking this question on many podcasts I mean So uh let me, let me start with the wrong answer. So my wrong answer is that my dad was a lawyer and a judge and that made me do law. But that's the wrong answer, because, he himself was a nuclear scientist and then turned to law. I mean, so it wasn't traditional for him. And it's also not traditional for me because I was destined to be a programmer. I enjoyed computer science and I was a professional programmer. What I heard from him is that law is a very interesting subject to study as a mental discipline. I mean, so I did law for that and he was very open that you don't need to practice law. You can do other things in life after a law degree. But uh what, what fascinated me and brought me to law as a choice is that in computer science, we have very definite determinate answers in any branch of science. It's very perfect in that sense. While in social sciences, of which law forms a branch, there's so many right answers and so many wrong answers. I mean, and different interpretations of the same thing. I think after, you know, like, say around 400 years of common law, we should figure out what is an offer and an acceptance. But yet, you know, it gets reinterpreted after some years all the time. So that's what fascinated me and brought me to law.

Gautam: Well, and that's incredible. I mean, uh you know, it's not often, I hear of a nuclear scientist turned lawyer, turned judge. And I can see that the genes on both the science and the law certainly flowed over to you. Hasit. So, in terms of your career to date, who have been your greatest and biggest career mentors and inspiration.

Hasit: So I'll, I'll start with uh a little broader slate. I've always admired a Maverick scientist, Richard Feynman, Richard P. Feynman, a Nobel Prize winner and a physicist who worked on the bomb. I mean, uh and many other things. So his life has always inspired me in a big way. In computer science. There is a Stanford professor, retired, Donald Knuth and Donald Knuth has written a legendary set of books. But so, I mean, these are artists in their own way. Then my immediate inspiration uh in law and somebody who taught me a lot of things was uh Mr Greg Stobbs. He was a partner at Harness IP where I worked in Detroit for three years and he taught me like patent prosecution and patent litigation. So these have been my inspirations. But uh one of the early inspirations was an old book that I bought called Six Great Advocates. So these were all English advocates. Edward Marshall Hall and others. I mean, so they were small biographies of six great advocates. And I was just fascinated by all that. So I think trial lawyers everywhere, you know, like uh are an inspiration and my dad was a big trial lawyer. I mean, so uh these have been inspirations, but I find the adversarial process fundamentally fascinating and that's what inspires me all the time.

Gautam: Thank you. And you know, it is very interesting, you know, when you say that, that we draw mentors and inspirations from a broad range of fields and experiences and you know what you've said, really resonates with me and indeed many of the other guests on this series have said exactly the same thing. So it's really interesting when we draw these common threads together. Um No, thank you for sharing your thoughts there. Well, you know, one of the things I mentioned I Hasit in the introduction is that you have a very broad arbitration practice amongst other areas, but you, arbitration is one of your core fields. And I'm also very proud of your increasing profile as an arbitrator. And the fact that you're getting the due recognition with a number of institutions that you deserve because I love to see new people, new arbitrators breaking through the system. But let's just row it back and we'll come back to what I just spoke about in a little bit. But let's start at the beginning. How did arbitration find you or How did you find arbitration? How did you first get to do arbitration? Tell us a little bit about that.

Hasit: Yes. Uh So the first arbitration I attended was while I was in the final year of college, my father was doing a trademark plus partnership dispute, a long running partnership dispute. So that's the first one I attended. I mean, uh but I was just like observing as a bystander. But when, and I went to U.S. and had a U.S. career in patent law. But when I returned to India, I was working in house and all that. But when I returned to like Mumbai, I found that patent litigation is a very small niche area. I mean, in India, I wanted a broader canvas uh and disputes was always something that I've done and loved. So went into a firm and then independent. So we have a model similar to the UK barristers, we call them councils in Bombay. Same formal kind of a system because that's what we follow. But I mean, that's where I, I turned to arbitration. And uh fortunately I have like works come in as a council and and increasingly as an arbitrator and the I think there are bigger forces like India is building so much of infrastructure and there is construction everywhere. So it was like round peg in a round hole. I mean, uh somebody with a tech background with the disputes, you know, like this thing experience and this thing. And so it just like, I mean, I, I am there at the right time when so much is happening around arbitration in India.

Gautam: Yeah, and arbitration is really happening. India and arbitration are now synonymous in so many ways. It's, it's fair to say, isn't it Hasit that there are challenges in India with arbitration law and it's an area still in development which is no bad thing because everything needs to develop. But I wonder what if you could just share some of your thoughts about what are the challenges for arbitration law in India? And what sort of reforms do you think might be valuable to assist as part of bringing arbitration in India into a much if you like better place?

Hasit: Sure. So I I've been thinking about this, you know, observing like global jurisdictions where arbitration is a big success that legal culture in a place within which arbitration operates. So arbitration is never divorced from the courts completely. I mean, challenges to the awards under the ancestral model, et cetera have always been there. So the courts have a role, I mean, now what kind of role the courts want to play? Uh That's actually, you know, very jurisdiction specific. So if English courts don't set aside the awards, I mean, easily, uh that's a choice with that jurisdiction is made. India I mean, one of the challenges is that we have a certain litigation culture here also and arbitration is like a new flower that has grown up in that garden. How much of that litigation culture comes into arbitration and how much of it influences the court system? That's an ongoing process. It's almost a dialogue between arbitration and the legal courts and part of the whole legal culture, what I see as challenges and you're absolutely right when you say that there are challenges because it's growing and growth always comes with challenges. So one thing I would suggest is or think is, you know, there is need to move from ad hoc arbitrations to institutions and we can start with appointments, a government had made amendments but they have not notified them. And we have fine institutions like say Mumbai Center for International Arbitrations and others who can easily do in Delhi, there is a DIC who can easily do the appointments. I mean, why do the courts need to do them? So that's in low hanging fruit which can be easily uh brought in and then we can reduce the roll of courts uh for both interim relief and uh essentially anything that happens during the arbitration because people, litigants, think that, you know, you get an order in an arbitration, then again, you have to go to courts to enforce it if the other side doesn't follow. So why don't we go to courts directly? I mean, so the courts should discourage any uh that's written into the law so that they need to discourage anything in the interim while the arbitration is progressing. So that, you know, the focus is only on the completing the arbitration process. I mean, and other thing is I think there, there have been some efforts but we fundamentally need to rethink how awards are executed or enforced so that there needs to be some work because that's all in the domain of civil courts, I mean, the enforcement of the awards. So there needs to be some fundamental reengineering of it. And I, I understand the older rules are meant when land was the only biggest asset, the real estate was the biggest asset against which you could enforce the awards. But today money is in bank accounts is in stock markets, all that, all that can be target for enforcement quite easily instead of a long drawn process.

Gautam: Thank you. And, and you know, and I think these are the things because I mean, you know, we we often hear don't we Hasit that India has ambitions to become an arbitration hub. And I love that because I truly believe that India will become an arbitration hub. And why shouldn't it? Because it's one of the biggest economies in the world, it's now the fifth biggest economy in the world. It's got the world's biggest English speaking population. It's got an absolutely world class legal profession, a great legal heritage. And there are huge companies operating in India and from outside India operating in India. So why shouldn't it become a hub? So I wonder though, can I ask you this question? And this may be a mischievous question? But you know, I'm a mischievous man. If, if you were to look at your crystal ball and just think about the future. Do you have a feeling as to how long it might take for India to get in a position where with reforms with all sorts of experiences along the way it can become that arbitration hub.

Hasit: Yes, I'll, I'll take the risk of saying that my crystal ball says it will be within 5 to 10 years period. I mean, I don't see any longer time required because all the forces are aligned. Uh you, you come to, you know, India, uh often, I mean, to arbitration conferences, other things you can understand the, what the judiciary thinks when the judges come and speak uh at the conferences and also the government's, you know, willingness to support the economic reform. The, the direction of India's growth is now primarily economic. I mean, so the rest of the software hardware now is in place. So I think it's just a matter of time of taking less than 10 right steps, less than 10 right steps and it will be a hub. You look one of the biggest aviation markets, people say flying in and flying out would hardly be a problem. Uh It has got great tourist centers like Goa or, you know, Bombay or I mean, any place where the rest of the infrastructure of like hotels and you know, hearing centers, et cetera, we have got one of the best, you know, like mobile telephony. I mean, you come to India and the mobile speeds are excellent and a very reliable mobile infrastructure and it consumes data like nobody else. I mean, so what's, what's left? I mean, I just think we need 10 steps, 5 to 10 year period of stability and 5 to 10 right steps in sequence. And we are there hardly a problem.

Gautam: You know, I, I love that Hasit because, you know, I'm looking forward one day to, to see India become that hub because I'm genuinely excited about that. I don't see why it shouldn't become a hub. I think for all the reasons that I've mentioned. But more importantly, those that you've mentioned, India really should be that hub, you know, as you know, there's been so much progression over the years. And so I, you know, I just think it's just a wonderful thing to see and, you know, I actually share your prediction about the timeline it will take. So, um I'm glad that you and I, and you know, you and I didn't share our thoughts on that at all. So, and one thing I think just so that our listeners know, these, these podcasts are not orchestrated, they're not scripted, they're all completely impromptu. So everything we're saying here is completely off the bat as they say. Um, well, look, Hasit, thank you for that. Now, before I turn to ask you about your role as an arbitrator, because I'd like our listeners to hear some of your thoughts about um your role as arbitrator. I wonder whether you could share with our listeners if you see any trends in arbitration in India, um some significant trends that you think are gonna be happening in the next. Well, in well in the short term.

Hasit: Yes. So one thing is the efficiency in arbitrations is going up. Interestingly, India is one jurisdiction that experimented with a fixed time for arbitrations that you must finish it in this time. Otherwise there are consequences and that has worked really well. I mean, so that's one very good thing. We have a very good set of young arbitrators who are coming up. I mean, so and also it is exhibiting the, you know, the general trend in India where women outnumber men in legal profession, the women are entering, you know, legal profession in much larger numbers than before, obviously. But I think the ratio is now slightly tilted, more women than less men. And that's also being reflected in arbitration. I mean, both the party councils, uh the arbitrators and also like women, business leaders who are taking active role in all management positions also. So everybody, all stakeholders in arbitration, you will see these changes.

Gautam: Yeah, and that's one of the things that's wonderful to see, because there are, there is, happily much more diversity in the world of arbitration. Now, we, you know, women are, are rightly getting the profile they deserve and the recognition they they deserve. I also noticed just as we're doing this podcast, just a couple of days ago, the new round of senior advocates were announced in India and there's a large batch of female senior advocates who've been left. I think it's 11 new senior advocates who are women. Now many years ago, that was unheard of that was heard of. No one would even be thinking that. And it's just so wonderful that we are now seeing this and we're seeing more and more female managing partners of law firms, uh more and more female arbitrators coming up in India, which is great. Um So no, look, that's a trend Hasit that I'm very, very happy to see as indeed you are. So let us turn now to your role as an arbitrator because as I mentioned in my opening, one of the things that really has been wonderful to see is for me that I've been so proud to see and I will continue to be very proud to see with you. Hasit is your continued rise as an arbitrator because I love to see new people coming through and, and although I love judges, ex judges being arbitrators, I think there's definitely a role for more and more non judges, but just tell us a little bit about some of the lessons you've learned from your role as arbitrator because I know that you've sat as a sole arbitrator as, as a member of a tribunal and as a presiding arbitrator. So tell us some of your thoughts as to what you've learned along the way so far.

Hasit: Yes. So one of the first, from the very first arbitration, I sat as an arbitrator. I realized that you need as an arbitrator's support of the party councils, councils, representing the parties and parties also to conduct the process of arbitration very smoothly. So you need for them to buy in and believe in the process that is happening. You don't want them as your adversaries, you want them as your allies. I mean, as such on the procedural part, the substantial part merit, I mean, it depends on the facts. I mean, but essentially for the procedural smoothness, you need their cooperation from very early on from the po one when you are setting up, you know, the whole uh like you know, the timetable for the arbitration and how it will go about. That's a big lesson that I quickly learned. I mean that uh you need their cooper operation. The other thing I have observed is that although it's an adversarial process, you need a series of small a agreements on the procedural side with all the stakeholders for that, when the hearing should be held, how evidence should be taken, you know that there is always a challenge if one side wants the evidence to be of the traditional style where every all the documents are proved and all that or you would want, you know, like it to be the redfern style uh objections, all that. So uh extent of cross-examination role of the experts, all that needs a series of small agreements at every stage. So a very congenial kind of atmosphere, non pressured atmosphere where procedural things are taken care of in a very fair and efficient manner. I think the arbitrator has a big role in it and he has to be uh somebody who builds that consensus. So that's those are the early lessons. I got. The other thing, sir. Uh And I think most arbitrators would be feeling it at this time. Even the party which loses appreciates the efficiency of the arbitration. Ultimately, when the party which is on the losing side, they say we have saved time and money because the arbitration went on very efficiently and smoothly. So they also appreciate. So, I mean, this is something I really like that. Uh And consider it as a badge, you know, like uh you would get at the end that you did a good job.

Gautam: I, yeah, I completely agree with you. I think that whole issue about efficiency and the process is something that I think can never be underestimated. One of the things that I must say Hasit that I've always thought over the years that I've been in practice is that the arbitrators for me who always stood out are the ones, as you say, who build a rapport with the parties because that's really important, not thinking that they're aloof from the parties, but that they're there for the parties because one of the things that I think some arbitrators over the years have unfortunately got wrong is they've lost the sense that they are there to serve the parties, not vice versa. Arbitration is a consumer business. The arbitrators are there to serve the parties. And I think so what you say, I completely resonates with me totally. And I think the other thing that's hit me over the years when I look back at my experience over the years is that point again, it's tied to efficiency. But the fact that the parties feel that the arbitrators have done a really good job that they haven't cut corners that they've been fair. They haven't just taken a compromised position on things that they've actually decided things on the merits each time. And that can range from a document request issue that could range from other procedural issues uh to other procedural issues. It could even range to how a witness feels they've been treated in the witness box. It's just a question of that overall feeling of fairness and that the arbitrators have been engaged in the process because one of the things I'm sure you'll have found and of course, I won't say anything about names. You won't say anything about names, but there are some arbitrators who are very invisible in hearings who don't make their presence felt enough and some who are overly visible and overly audible. And I think there's a balance to be struck. I mean, I'm sure. And I, I would like to say you'd agree with that. But, uh, but no, I think, you know, but I mean, I'm very interested as I say in your thoughts. So thank you for sharing your thoughts as an arbitrator. So let me, um you know, we as I'm sure you, you know, Hasit, we, we like to end our podcast with a little bit of more lighthearted discussion. Everyone knows now about your incredible academic background, your journey to become what you are now, the fact that you've studied and worked in the U.S. that you've got an incredibly varied practice. You're an arbitrator, you're a mediator, you're, you're an independent council. I should have said that you're with H Chambers in Mumbai. And uh you also write extensively for many journals, you give me lectures. So you've got a lot of things you do in the law. But let's now stop talking about law. Let's stop talking about arbitration. Let's talk about you, the person when you have some spare time. What do you enjoy doing?

Hasit: Yes. So, I, I mean, long ago, you know, had this thing that I'm too much drowned into words. I wanted something non verbal as an interest. And what caught my fancy was drawings, drawings as a discipline. I mean, and starting from, you know, like caveman drawings, I mean, Neolithic stuff to like very modern practice. But I, I started collecting a lot of prints of many drawings. But uh and I have a very large collection of drawing related books. I mean, which I've collected in the U.S. and I still collect uh but what I find, you know, like the most fascinating are the drawings of the Renaissance era. I mean, and of old masters like Rem Brown and others. I mean, that's just a superlative human achievement. I mean, there are, there is now research showing that some of them use camera obscura and uh those kind of tools to aid. But despite that, I mean, you know, you look at uh Leonardo Vinci drawing or Michelangelo drawing, I mean, Queen has a number of them in her collection and they're like extraordinary human achievement. How how can you draw like that? I mean, so I just find those things very interesting. I have a large collection. I keep like reviewing that all the time.

Gautam: Oh, well, yeah, really, you know, I mean, art is a great thing and, and, and so varied as well in terms of. Um so, and, and you know, and is there a particular place outside India that you enjoy traveling? To, is there a favorite travel spot?

Hasit: Yeah. U.S. I mean, any day. Uh but I mean, obviously because I used to live there but uh the city which is New York City, I really like it with uh its museums, particularly the Metropolitan Museum of Art. I mean, New York is a great place. I mean, so, and, and also I like U.S. national parks. I mean, they, they are amazing. I mean, the scale of U.S. don't think so. Anybody living outside U.S can imagine. It's a continent, it's not really a country and I got a chance in five years to explore it, but I still love going back. I mean, any opportunity I get and within India, I really like Rajasthan. Rajasthan is amazing. Uh with Udaipur, I mean, in particular, it's, it's a very lovely place. I mean, in desert people have created such wonderful places.

Gautam: Yeah, I I agree. I think Rajasthan is an incredible place and uh I've been very fortunate over the years Hasit to have been to a number of places in Rajasthan. I've been to Udaipur to Jaipur just to name two places. And uh it's, I mean, those in themselves, I mean, are incredible places. Um I've also had the very good fortune to stay on the Lake Palace in Udaipur. That's, you know, that is so for those of our listeners who don't know that was, it's a very famous Taj Hotel in the middle of a lake. But it's also where the James Bond film movie um had some scene shots and uh uh you know, and uh Octopussy was a Roger Moore uh film. It was a very, uh I still remember those days.

Hasit: I, I am a James Bond fan and I watched all the movies and series. I find that to be the weakest movie ever made there is a circus at the end and all that. I think Roger Moore must have regretted doing it later on.

Gautam: Yeah. Yeah. Well, I'm sure I'm, I'm sure he didn’t regret staying at the Lake Palace, but I'm sure.

Hasit: Launched from a cannon and all that. They were like, it's too much.

Gautam: I know. Very strange. Some of those things, some of those films were very strange. That's, I suppose what makes them so enjoyable because people don't forget those scenes, they're talking about it on this podcast.

Hasit: Yeah, because I, I have read all the Ian Fleming books also and I was wondering, you know, what would he feel about, you know, like watching Octopussy?

Gautam: I know it's amazing. I mean, we, we can only speculate but one thing that I don't need to speculate on is that this has been a fantastic podcast. I really enjoyed doing it with you. Has thank you very much for being such a wonderful guest, being so engaging, so open with your thoughts and for giving us an insight into how you think about many, many things. And so thank you very much for that. Hasit and I look forward to seeing you in person very soon.

Hasit: Thank you very much, Gautam and Reed Smith for having me on the show.

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 [email protected]. 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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Explore the art of cross-examination in international arbitration with J.P. Duffy and Raj Pillai KC (3VB). In this episode, the duo discusses strategic insights, preparation techniques, tribunal expectations, and question dynamics that lead to effective cross-examination.

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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. And with that, let's get started. 

J.P.: Welcome back to the next episode of Arbitral Insights which will discuss effective cross examination and international arbitration with Raj Pillai KC, who's a barrister at 3VB in London. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both council and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I participate in several hearings a year as both council and arbitrator in which witnesses are cross-examined and can offer a more American point of view on this subject. As I mentioned with me today is Raj Pillai, who's a King's Council based in London. He acts in international arbitrations and also appears in English courts and various others including the BVI, Abu Dhabi and Singapore. His role is generally as lead advocate. So he will determine strategy with the client and the legal team and then run the arguments and carry out the cross-examinations. Raj is gonna offer some insights based on both common law litigation and his arbitration experience. So welcome Raj and thank you for joining us today. 

Raj: Thanks J.P. Nice to be here. 

J.P.: So let me begin by talking about the importance of cross examination in international arbitration so that we can set the stage of it for our discussion. As many of the listeners will know in international arbitration, direct witness testimony is usually offered by witness statement and that's written witness statement. And what that means is that the witness will tell their story through a written document that has been prepared with the help of lawyers. There's a trend in occasion for some of these witness statements to be written entirely by the legal team and then signed off by the witness that can be a mistake because oftentimes it doesn't present the witness in a manner that allows the witness to seem very authentic or seem like they're offering their true factual story. Typically, the way that we like to do things is we like to interview the witness, hear their story, prepare them in at least from the US perspective in a way that we might prepare a witness for direct examination and then put their witness statement down on paper and then have them sign off on that. That's usually the way it's done in the US I should mention, I'm qualified in England and Wales as well. So we can have issues occasionally with how we prepare witnesses and the differences between the two systems. But I think that's usually the way most people would do it from a general perspective. Now, what that also means is that cross therefore becomes the first opportunity for the tribunal to really hear from the witness themselves and to assess the witness. So it's one thing and I've noticed this sitting in as arbitrator, it's one thing to read a witness statement and to get a sense of what you might think the witness is, it's a very different experience. When you then see that witness hear from them live, see their mannerisms, hear their words coming directly from their mouth, with their own timber, their own tenor and their own delivery. So cross really takes on a disproportionate value and importance in international arbitration because you've not heard from them before. Now, there's in my experience at least, and Raj may have different ones, There are rarely any surprises on cross. Although Raj and I did have an experience many years ago in Singapore where a witness um that I was crossing started to offer a lot of testimony that that no one had ever heard before. But for the most part there's rarely those sort of TV moments where someone admits to everything that they've been accused of or admits to something that's been a key issue in a case. But it's still allows you to discredit witnesses and to highlight the other party's weaknesses and the strengths in your case. So it is a critical, critical phase and a critical skill. And it's one that many lawyers, particularly in jurisdictions like the US may not have as much experience with. And just to give some background on that, statistically, the vast majority of US cases never get to a trial, which is where you would cross examine a witness in the US. Many, many, many US lawyers are very familiar with direct, which is a fact gathering exercise um because they depose witnesses, they conduct direct examinations all the time, but many do not have experience with the process of cross, which involves really testing a witness's direct testimony. It's a very different skill set and a very different approach. And notably, it can really backfire if it's done improperly. Um A good cross is highly effective and highly persuasive. A bad cross can be more damaging than no cross at all. So with that, let me ask Raj a few questions about how he approaches cross. Raj, what's the first thing that you consider when you're preparing to cross a witness? 

Raj: The first thing really is whether you need to cross them at all because as you pointed out J.P. the question is how you test a witness. Now, you gotta ask yourself, is there a point I need to make by referring uh this witness to a document, can I undermine their credibility because they've said X in their statement? And there's a document that shows entirely the opposite. Also, if you're looking at a case that involves fraud allegations, there is a different aspect to it because the way we call it, uh put it in England is that the witness should have a chance to respond to the allegation. So do you have to put the point to the witness? And there are some differences in practice and expectation in this regard between court and litigation. And I just want to pick up on one of the things you said about the preparation of the witness statement because that feeds in to how a witness will react to cross-examination. If it's too technical, if it's too legalese, then when they're preparing it in the week before the hearing, the night before the hearing, you know, they're busy people. They haven't been focusing on the case in the way the legal team does. Um, they need to be able to understand what's been said and they need to understand their story because if they can't, then they're, they're gonna be more vulnerable when it comes to the cross-examination. And that's one of the things I think it's important to teach your legal team, particularly younger lawyers when they're drafting these first cuts of these statements is don't say something that your client is not gonna be able to hold up that isn't in simple language. 

J.P.: Just on that point as well. I think you raise an excellent point, which is to say as well when you're preparing these witness statements, do it in the language that the witness himself or herself would use and don't make it overly legalistic because there's nothing worse than seeing a witness cross-examined on a phrase that they don't understand at all because they would never use it. But I've seen that experience and it's quite, it's quite embarrassing on cross. 

Raj: And it's one of those easy things to avoid. But what often doesn't happen, I think it feeds into experience both, you know, in US litigation, but also in London Court and arbitration is that a lot of commercial disputes and heavily complex, expensive, high value ones, you know, people settle them so they don't fight. But you've always got to remember as the lawyer, what's this gonna be used for in two months, six months, two years time, you know, and, and for younger lawyers again, where's this? Where's this paragraph I've written? Then next going to come to light and if it's in cross-examination, then the witness needs to be able to uphold it. So we're talking about, um, whether you need to cross examine and the key thing is what you need to get out of the other side's witness to make your case go forward. If there's fraud allegations, you might need to put those points and say you lied on this and then you take them to the evidence that supports your case and why you say they lied. But particularly in arbitrations, there is some flexibility about that. Really think as an advocate, you've got to focus on what's important because you might have very long witness statements, you know, with 50 factual disputes of which only two or three are important. And remember time is often tight in an arbitration, you're gonna have slots for each witness because of their availability and the and the tribunal's availability. So really uh make sure you can focus on the key points and also don't ask questions to which you don't know the answer. We're gonna come to this in a little bit. Um But you don't want to allow witnesses to correct weak points in their evidence. So don't ask questions which give them an easy goal. And also there will be a difference which we'll pick up on between factual witnesses. Those are the ones who were involved in things that happened at the time. They're telling their story and expert witnesses who are generally brought in to assist the tribunal with their notionally independent expertise on a given technical area like valuation or technical specifications in the particular sector. 

J.P.: Yeah, Raj, you raised a few excellent points and one I just wanted to pick up on that I'm sure we're going to hit on more later, is being really selective about what you cross the witness on and you made a really good point about not allowing the witness to correct weak points. Um, and one of the things that comes out of that, that I'm sure we'll talk more is when you oftentimes read through a witness statement, you will see things that are occasionally glaring errors and sometimes those glaring errors are ones that would be easy to pick apart on cross. Other times, you just want to leave them alone because it's much better to address those in written submissions and point out the glaring inconsistency than allow the witness to go back and say, oh yes, I misspoke or yes. What I really meant was this and I think that's what you're getting at. It's a real art form when it's done well. Um But it's, it again, goes to your point about being, being selective. Now, Raj, what are some of the other things that you consider um when you're preparing for cross examination? 

Raj: So I, I think we're gonna come to it. It's about preparation. But one of the aspects of that preparation is picking out by analyzing the legal case and the documentary record, what you need the tribunal to understand what documents they need to have seen. You won't always get a chance in a, in a compressed hearing or a timetable to have brought that out in a, in a long opening speech or similar. So with a witness, if they've written the key email or they were copied in on the email and, you know, you could expect them to have responded. If it was important to them at the time and their account differs in their witness testimony, then you've got to make sure that you're gonna bring those out in a, in a carefully planned cross examination. Sometimes that can be thematic. Uh But otherwise it might be chronological depending on what sort of case you've got. And you've got to do it at a pace and, and with a clarity that allows the tribunal who won't be as well prepared as you and won't be as well prepared properly as the witness to understand and to follow. Ah, I see this email fits into such and such. That's the aspect of the case this goes to. So you don't want to leave them behind and you've got pace it accordingly and check that you're bringing the tribunal along with you. 

J.P.: Yeah, those are, those are excellent points. And, you know, if I were to sort of summarize that, I think really what you want to do is be pick a few key points that you need to hit in your cross-examination. And this is something I know we're going to talk a lot about. But you have to go into these with a clear strategy, objective and knowing exactly what you want to accomplish. And sometimes you can accomplish it clearly right away. Sometimes it may become apparent from speaking with the witness that you will not accomplish certain things, but that other things will be easier to accomplish. You really do need to understand what you're trying to get out of the witness and to make those points accessible to the tribunal. Because if you don't, it becomes a rather long exercise in confusion. That can be, that can be really, you know, really a waste of time. And your, your point about addressing key points in your case is really, you know, it seems axiomatic and it seems obvious, but it's amazing how oftentimes parties start crossing on points and either the tribunal or opposing counsel sitting there staring dumbfounded because they have no idea why you're getting at something. Um, and wasting time on meaningless points is really an ineffective way to go about it. 

Raj: When that happens, when my opponents start doing that, I'm entirely relaxed about it because they're wasting their own time and the tribunal will spend a couple of minutes thinking where are they going? And then, you know, they'll pick up on this being a waste of time. They'll switch off, you know, when you see them going glazed over when your other side is using up their time. That's perfect. 

J.P.: Yeah, that's exactly right. And you, you also hit a point that I think we're going to talk more about, but it's really, you have to understand your tribunal when you're doing this. Um It's really key to understand the background, the legal, the legal tradition from which they hail what type of experience they have with both hearings and cross-examination. You know, it can be the case that you can have a tribunal member who was not a practicing advocate and that party or that tribunal member may well not understand the purpose of cross or may not see cross the way that you do. You know, we talked in advance of recording this about, you know, perhaps having a uh a tribunal member who hails from a different civil law tradition that would not use cross or would not understand it. So you really do need to understand, um you do need to understand your tribunal and in that regard, you really need to understand the witness too. You know, some, every witness is different, just like every person is different. Some can be more combative, some can be more talkative, some can be more cagey and you may or may not know that going in. Oftentimes in the types of cases that Raj and I do the party that you are representing as the advocate will have a very good sense of what type of person the witness is because they will have dealt with them a good deal, but that's not always the case. So you really do need to fill out the witness as well. Let's then talk a bit about because we were talking about how to do this effectively. Let's talk about some of the steps that we take to prepare for one of these. And the first one again is, seems obvious, but it's one that gets lost on occasion and it's really to prepare thoroughly. You really need to know all the key facts and all the key documents in order to effectively cross examine someone. It happens where you see someone who's pulled into a case at the last minute or they've not thoroughly prepared themselves, they've left the preparation of someone else or picking up and they will start a cross-examination and they will ask a question and that question, will there be in artfully asked or they will miss an answer. Um You know, the witness might have given an answer that would lead to a new line of questioning or a key admission, but they've not picked up on that because they've not known all the facts or they will simply ask a question that's inadvisable. You know, as Raj said earlier, don't ask a question to which you don't know the answer. Um That happens and that happens when someone's not prepared. And you, so you really need to know all the key facts of the case and the documents. You need to know the witness statements cold both the witness that you're cross-examining and the other witnesses in the case. If you don't know what the other witnesses have said, it's very, very difficult to effectively cross examine the witness in front of you, and Raj, I'm sure you've had this experience where you've seen someone make an admission that's addressed in someone else's witness statement, but an advocate hasn't necessarily picked up on that because they've not fully prepared the case. Have you ever had that, that happened in a case for you? 

Raj: Not on my part, but it, it occasionally happens on the other side. I mean, I've never had it happen on a crucial point because generally, you know, we've been talking about the big picture things. Um But yeah, you do have that and equally, you have witness statements which just have verbatim, same chunks sometimes just cut and paste it and there you trust the tribunal as well because you make the point softly, it's all there. But yeah, it's, it's all about the preparation. 

J.P.: Yeah, that's right. And I think, you know, part of part of this to a, a preparation is having a game plan for how you're going to go about each witness, right? And that again seems obvious, but you need to go in with not just a set script because every script will deviate instantaneously, but a game plan that understands where you need to get to and how you plan to get there. But you need some flexibility for how you're going to do that. Now, one effective practical way to go about that is to consider making a bundle for each witness, right? So if you know that you need to hit three points with a certain witness and that three of those points are going to be addressed by five different documents, have a bundle together of those five documents that you can give the witness in advance, that you can give to the tribunal and have copies for the other side as well. So that you can effectively move through that part of what we're going to talk about as well is the pace and the tenor of cross and how you control a witness, which is something Raj is going to address next. But part of how you control that witness is the pace at which you move, how quickly you're asking questions and the tenor by which you're doing it and having a bundle of documents for that witness to address without giving them the opportunity to pause thumb through things, go searching for documents in the record. It really adds to the effectiveness of cross. And the last thing is is we talked about know the witness themselves, we touched on this a bit earlier, but to the extent you can get as much intelligence in advance about the witness, how talkative they are. Um you know what type of culture they come from some cultures, some cultural backgrounds may be that people speak less, some cultural backgrounds, maybe that some people speak more, you know, some people may be more aggressive, less aggressive, those are generalizations. But it also comes down to the individual. Obviously, you know, any individual can be um combative, can be shy, can be meek. You need to understand that as quickly as you can, the best way is to get intelligence in advance. But you will also start to suss that out as you cross examine the witnesses themselves And we're going to talk about this more too. But you can also encourage those types of responses by the manner in which you cross examine someone as well. So we talked a bit about, we started to touch on controlling the witness. Raj, why don't you give the audience a bit on the importance of controlling the witness and how you go about it. 

Raj: So a witness comes to the court of tribunal to tell their story. Sometimes it's their chance of having their day in court. Now, tribunals and courts are not that interested in which uh in witnesses giving speeches. So what you want to do is have a clear strategy and line of questioning that doesn't allow them to deviate and go on to points that are either irrelevant and are wasting your time that are dead ends, which are also wasting your time or otherwise are giving them a chance to make their position better than appears on the documents they prepared beforehand. So you want to get the key evidence on the transcript and do it as efficiently as possible. And you're always going to be under time pressure because as we've said, claims run on timetables, you know, the witness, when they go, they're gone, you're not going to get a second go. Um, and, and the key is to remember, you're in charge as the cross-examining advocate, nobody else knows where you're going to go. Now sure you'll see, particularly in our line of work, some very confident individuals coming to the stand. But you know, sometimes that confidence can be their own weakness, cos they will try to assume that they know what your story is, the line you're taking and they will try to prejudge answers and jump ahead sometimes to show how clever they are. But often always just to keep telling their story and spin it. Our tribunal, particularly an experienced one is unlikely to be impressed by attempts to speak or attempts to jump ahead or second guess. But you will always ultimately have to let witnesses finish their answers. We, you know, we'll touch on being respectful generally towards the tribunal, but also to the witnesses. So don't try to cut them off, particularly if they're giving an answer that you feel will damage you. The best thing to avoid damaging answers to is to adopt a technique that doesn't encourage wide ranging or long winded answers. So we say use leading and closed ended questions, things that have a yes or no answer or as narrow a scope. So not what did you do yesterday, but more at four o'clock PM, you'd sent this email which showed that you are at such and such, hadn't you? So that you focus on a narrow answer. Keep the question simple. Usually, generally get going with uncontroversial matters so that the witness has to agree. And one of the, the classic instances of, of trying to trap them is to you have four or five questions. So they agree. Well, if this concept was right, then it must be the following concept was right, then the third concept and then finally, they've got no way nowhere to go when you hit them with the final document to the final point. And if they do try to bluster out of that, that of itself will make them seem unconvincing. J.P. has already touched on controlling the cadence and speed of the questions. And that also includes giving them a chance to respond fairly because as, as J.P. touched on the concern of tribunals from different contexts and different experiences and different legal cultures, they will sometimes look askance if you are too abrupt with a witness or you don't give them a chance to respond to a question. After all, it's got to be a two way street. Keep up your eye contact with the tribunal so that you can see that they're coming along on your journey. Um and sometimes be flexible. So if you haven't got an answer you want in a particular way, you may need to come back to it in order to ensure that you have got the point out. But that's really what we're talking about control is to make sure that they're not given a chance to ramble on in a freestyle. There are some very limited examples where you've got a witness is garrulous and you know, or you, you think from how things have been going, that they might get themselves into trouble by talking too much, you know, by undermining um some of the the narrowly constructed legal arguments they have been given so it can assist your case to let them speak at a certain point. But you need to um you need to be sensitive about that and that's got to be in the right situation because generally I think control is the key. 

J.P.: Yeah, I agree and you raise excellent points Raj and part of that control is listening to the answers that they give, right? And you, you mentioned that, but when a witness gives an answer that you may or may not expect that can open any number of new questions, it could really be problematic for them. And if you know your case and you thoroughly prepared, that becomes very obvious, but it is very, very important in that case to listen and to actively listen. Um It's amazing how often, how often times parties are ticking boxes um asking questions, not, not listening to the answer and then just moving on. And you're thinking as the tribunal member, wow, there are 10 questions. I would have loved to hear the answer to there. Um And in international arbitration, unlike some courts, it is likely that the tribunal may circle back and ask those things and if you have not asked them the way that you want to, you may not get the answers that you were hoping for. Um So really, really important and that is a big, big part of controlling the witness. There is no better way to really, really, really control a witness than to take what they've just said and follow through on it. It creates a connection with them. Um It controls the cadence of things and it allows you to be in charge as Raj said, of the questions are being asked. So do actively listen. And you know, Raj's point about keeping eye contact with the tribunal is a great one. You need to be following through to see what the tribunal, how the tribunal is reacting. But in the same token, make sure you're keeping that contact with the witness as well. You know, it's a very basic animalistic dominance thing. But looking someone in the eye while you're questioning them can truly, truly help you control how the questioning goes and how the answers go. Now, Raj, you talked a bit about being respectful. Can you just explain that a bit further. I think that's a really a really critical point. 

Raj: Yeah. Uh, the tribunal or a court in, in a complex commercial dispute is really there to get to a fair outcome, to get to the answer as efficiently as it can. Right. It's, it's a commercial, practical exercise. Expensive, sometimes long winded. But that's what they're trying to do. And they don't need grandstanding and they generally don't like disrespectful questioners and they don't like grandstanding council either. Disrespectful questions were counselors rude to a witness can make it harder to control the witness because they may have an emotional reaction to it and really sidetrack the entire process. Uh And it can also break the flow of what you were getting to with your transcript. We talked earlier about building up questions and trapping witnesses. But if you have gone too hard on something, then that can break it all up and, and worst of all, if you get told off by the tribunal that's on the transcript that you know, that doesn't look professional and it isn't helping your cause or the client's cause. And I, and I think J.P., this is one of the things you, you'd picked up before when we were having the discussion, it conveys your weakness to the tribunal as council. It undermines your position because the tribunals, I'm thinking, why is this guy playing tricks rather than just getting on with it and helping us get to the bottom of this problem and just take a step back. If the questioner asks a series of questions without really paying attention, you're rattling through it. If the questioner plainly hasn't got control of a witness or is rambling a bit, that makes me as a tribunal member or a judge lose faith in the questioner. And it's a real show of confidence from your advocate where they ask fewer questions are more incisive. Don't ramble. They're clean and when they hear their answers or if they get a good answer for them, they're not fist pumping or looking back at their team or looking triumphant, they just carry on and equally and we've all had this, you ask a question, you get a bad answer for your side. You know, the witnesses, you has got a better position and, and gives a good answer that hurts your case. Then you've gotta shut that down politely and quickly and move on without grimacing and, um, you know, smashing the desk or something, you've just gotta be grown up and move on and be professional. But all of these are things that, uh, are important for the advocate and when you're a client, you've gotta see that from your advocate. 

J.P.: Yeah, I agree. And I think one, you know, one thing about that, that I would simply add because I think it is, it, it's an excellent point is you do again need to understand the cultural differences. So, for instance, as Raj said earlier, there's a notion under English law of putting it to the witness when you're accusing them of fraud or lying in US practice, that is the exact opposite of what you would do. Um You take the witness directly to the edge and you stop right there in English practice, you do have this notion of saying, well, I submit to you, sir, you're lying about XY and Z or it can be done that way. It doesn't have to be done that way. But you do need to understand your tribunal again because if that's done improperly, if that's done in a manner that seems disrespectful to the tribunal, not only can it be ham handed um but it can be highly, highly damaging. Um conversely if you've not done that in a way that it's expected by the tribunal that can come off as weak as well. So those are all, you know, we could, we could go on for hours because luckily Raj is a highly, highly, highly experienced counsel. But I think it's useful now to move on to effective tactics with experts. You touched earlier, Raj on the difference between cross-examining fact witnesses and cross-examining experts. Perhaps you could just talk a bit about how you effectively cross an expert when you're posed with that challenge. 

Raj: Sure. So we talked about fact witnesses being there to tell their stories, an expert will generally be there to deal with. Uh something specialist and technical such as um working standards in a given industry, perhaps a valuation of a shareholding or a business for the purposes of future business claims, lost profits and so on. Generally, they have no skin in the game. You expect them to be independent and they're there notionally to help the tribunal. Though of course, each side generally has their own expert. So they give a professional opinion based on material they've had provided them. So the key areas of attack think are usually threefold. Firstly, expertise and competence, are they actually experts in the field? Second methodology. So have they used the up to date methodology for evaluation the right um comparators and so on for a particular sector, have they drilled down into all of that detail properly? Thirdly uh their attention to detail and the material have they taken into account everything that's important in, in in the material? And then I think there's also a final sort of step back when you're looking at an expert is looking in the round. Is their outcome reasonable in a case where an infrastructure project never, never got built. Is it reasonable for them to say there would have been $7 billion of damages if this had been built so on and so forth. Um And I mentioned that we expect experts to be independent but sometimes they cross the line and they'll go into fight for, for the party that appointed them uh and if an expert is partisan, then you can point that out. But you do that by showing generally how unreasonable and how, how on every or on a majority of options, they've already always taken the one that's favorable to their client. Now so the main challenge when you're cross-examining an expert is that they're experts in that field and you're not. So you need to prepare with as much care as you would for any other witness. But also rely on your own expert from the outset to assist in developing the questions. And then most importantly, knowing what your follow-ups are. So it's almost like a flow chart or decision tree. If X then you go to this question, if Y then you go to the next question. And in some instances, you really have to delve into the detail. When I've cross examined um on financial models, often you have to get your expert to teach you how the spreadsheet was set up to go into the cells to show where the formula were wrong, to show where something was hard coded where it shouldn't have been. And often you need to have a few practice runs to ensure you get it right and then do it clearly and effectively because just as with your fact witnesses, you've got to bring the tribunal along with you on an expert witness. And often times a court or tribunal may not be the most technically minded. So then you've got to pitch it at the right level and take them to what you need to so that they can see it and understand the point that you're trying to make. For me, it's the same. Therefore, building blocks as with the fact witness be methodical. Keep it simple and ensure those building blocks are clear as you go through the cross examination. And uh finally, when you're preparing that cross-examination, again, often you're facing very thick reports with lots of appendices and schedules. You've got to ensure you've got the key points because that's really what's gonna get you home. You're not gonna be able to address 100 points in half a day. So make sure you know what the key points are on, methodology, expertise, so on and so forth. And that's in my experience is gonna get you the best outcomes. 

J.P.: Those are excellent points, Raj. And I think if I could just add one personal insight is don't quibble with experts. Um It is when you're, when you're cross examining an expert witness, you need to be highly selective about what you're going to cross upon and you need to be extremely careful about not getting sucked into an argument with an expert about their area of expertise because you will invariably lose that argument. Um It's very apparent to tribunals when that occurs. Well, this is great Raj. Thank you so much for all your valuable insight. I think we actually probably have enough material that we could come back and do a follow on one with a few more, a few more additional points. So we will certainly, I reserve my right to call you back as I, as I would like to say, well, good. Well, that concludes our discussion of effective cross-examination and international arbitration. I want to thank our guest, Raj Pillai for his really invaluable insights and his helpful comments. And I want to thank you for listening. Please do tune in to our, to our podcast and we look forward to having you um having you back Raj in the future to continue talking about this really critical subject. 

Raj: Thanks very much J.P. 

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