Tag: Arbitration

This interview has been published by Anshi Mudgal and The SuperLawyer Team

To start with, why and how did you choose law as your career? And if there was any specific inspiration or anything that you feel made the change in your mindset to choose law, being in India, having those kinds of challenges, we would request you to share those insights with us.

In response to your specific question, I do recognize—having grown up in India, having spent almost the first 28, 29 years of my life in India—that, at least when I was growing up, law and the study of law were not seen as a very attractive career option.

Let me put it very simply: people were more interested, as I recall, in studying the sciences, engineering, medicine, and architecture. Those kinds of professions were seen as more lucrative and more rewarding, from what I recall growing up.

So, law was definitely not an attractive career option. Having said that, I was someone who was always interested in the study of social sciences, in the study of politics. You could say that that’s something that was bestowed upon me by my father, who is a professor of history. He is basically a social sciences academician himself. I was always surrounded by these books that were in the house—about world history, about ancient history, Greek history, Roman history, Indian history obviously. So, I used to be very fascinated by reading those books. Those used to be like coffee table books, from what I remember.

My father used to bring them a lot. There used to be encyclopedias, so I was always interested in politics and history. And although I was a good student in science and maths as well, I always wanted to do something more related to how our society works, how our social systems work, how our political institutions work.

And by the time I entered high school, I realized that studying law was probably the best way to understand it, because the law governs most of our political and social institutions. That was my motivation. I did not have any specific role models growing up, although I knew very well as a student of history that most of our leaders during the freedom movement—not only in India but almost all around the world—were lawyers. I realized that there must be something about the study of law that makes good leaders, that makes these leaders, these very cherished leaders of not just our freedom movement, as I said, but if you take the history of any country.

You will see that most of the people who have risen to the top have studied law in some form or the other. So that was my interest, and that’s why I ended up being a lawyer. I did not have any specific branches or any specific disciplines in law in mind when I entered the legal profession. I just wanted to understand how, as I said, our society and our political institutions were.

And that’s how I ended up being a lawyer.

You were also equally interested in politics and that made the way towards law career because yes, all over the world, most of the politicians and leaders are lawyers also, and really in every country they have brought in a lot of changes. So was that the reason that you started your career from a leading Indian law firm which was specially focused on trade policies and government affairs. And later you also served as legal advisor to the Department of Economic Affairs, government of India.

How did you end up there? First, my curiosity is that, and another thing, how did that form your perspective towards moving ahead and getting into international practice?

That’s obviously a very relevant question that your listeners might be interested in hearing about.

So, as I said, I did not have a specific practice of law in mind—whether it’s international law or arbitration, or litigation or transactions—when I started my life as a law student, because, from what I recall, in those days we did not even have this kind of information about the various disciplines and branches of law and the various types of legal practices or law firms. I started studying law in 2003, and the internet and the information age at that time were very much in its infancy. 

I was just fascinated, as I said, by the concept of law and how we make laws, how the Parliament makes laws, how our Council of Ministers works, how the Cabinet works, from what sources they derive their powers—things like that. I did not have anything in mind, but as I started my student journey, there were a couple of events that shaped my career towards a more international practice.

The first was that, you know, at that time—and I think even now—as law students, we do a lot of moot courts. So I was given an opportunity to do a moot court that was an international moot court on WTO Law. And this was organized by the European Students’ Law Association, ELSA, and our team at that time qualified for the world finals that were held in Geneva. I think this was in 2006. So I went to Geneva and argued before a tribunal a case that was related to the WTO, or the World Trade Organization, and the various laws that constitute that organization.

I think that was a very prominent factor in shaping my career because I realized that law doesn’t just govern our national institutions but also governs international institutions—how countries trade with each other. There are defined, specific rules about how you trade, how much subsidies you can grant, what kinds of duties you can impose, what kinds of anti-dumping and countervailing measures a country can undertake against another country. I realized that law as a discipline is far broader than I thought, and I was just fascinated by the international aspect of it.

And then, I think we had a professor at some point in my university career who was a professor from the University of Vienna. He was a professor in international law and a visiting professor for a semester. I developed a very close relationship with that professor who came to our university and taught us public international law, and he basically served as a mentor at that time in shaping, again, my career and my understanding of public international law.

Again, public international law governs how states interact with each other on the international sphere. So that was again a very big motivating factor. So I think those two factors shaped my understanding of this international practice that I developed. And then we had specializations at that time.

In our university, they used to have honors courses, so I chose an honors course in international law and trade. And that is how I specialized in what I do right now. And that is also how I ended up joining Amarchand in 2009. Amarchand had a very small practice of trade policy and government affairs, which was focused towards, again, working with the Government of India—obviously in Delhi—but also with other governments around the world on how they negotiate trade agreements, how they negotiate bilateral investment treaties.

I joined that practice, and I can answer more, but that’s how I ended up at Amarchand. And one thing led to the other, and I’ve been doing this for almost 15, 16 years.

Wow, that’s an amazing journey. You later pursued your LLM at the prestigious NYU School of Law and received notable scholarships like Vanderbilt and Inlaks. What do you think helped you secure these, was it your work, your clarity of purpose, or your passion for international law? How did these recognitions shape your professional path? And how have they contributed to establishing you as a prominent international law practitioner today?

Again, a very relevant question. I did my stint with Amarchand & Mangaldas in New Delhi. Then, as I said, I moved on to the Government of India, where I worked as an in-house lawyer in the Ministry of Finance, Department of Economic Affairs, helping the government again negotiate bilateral investment treaties, free trade agreements, as well as manage disputes with foreign investors.

So I had that kind of experience, and when you’re in the government, the government works with all kinds of people—whether they’re lawyers, policymakers, or people in international institutions. So I interacted with people from all around the world when I was working as an in-house legal counsel in the Ministry of Finance. And that shaped my thinking in terms of taking up advanced study of international law, because I realized that international law is a very academic discipline—perhaps more academic than other disciplines—because you need to write a lot.

There’s a lot of critical research and critical thinking. I’m not saying it doesn’t happen in other branches of law, but in international law, perhaps it happens a lot more. So I realized that I needed an advanced degree because it was a very academic discipline, based on my interactions with the people that I met at that time.

So yeah, I applied to a lot of universities. I was accepted into many universities—Harvard, Columbia, and Berkeley. But I ended up choosing NYU because I think New York is the hub, the center, probably the global center of international arbitration as a practice. And that is what I was interested in.

And I also received this very prestigious scholarship, which you just mentioned—the Vanderbilt Scholarship at NYU—which covered a lot of my tuition and expenses. And I received that scholarship because I think I had a very clear sense of purpose about what I wanted to do. I think these kinds of scholarships are awarded by universities to people who are keen to learn, who absolutely show in their applications that they’re going to be at the university—it’s a very short time, the LLM is only for a year—so in that one year, they’re there to actually learn something new, and then utilize the instruction that they received or the education they received to do something more meaningful. So I think I was able to very clearly explain in my application what I wanted to do—not just with my time at NYU for a year, but beyond that. 

I was also awarded another scholarship in India, which is called the Inlaks Scholarship, I think, which is also very prominent. And from what I recall, I was able to bring forth to the selection committee for that scholarship as well how my career in law had been up until that point, what were the kinds of things that I hadn’t done, and what it was that I wanted to do beyond my LLM at NYU. And I think they were also very, very impressed by the fact that I had worked in the government for about two and a half, three years, because that’s not something very common—especially if you are working in a big Indian law firm.

Most people generally move to another law firm or do something else—they don’t generally go to work for the government or take a pay cut. So I think I was able to explain that I went to the government because I think in international arbitration, if you see, one of the biggest defendants—one of the entities that is sued the most—I mean, it’s obviously common in domestic litigation as well, but in the international sphere too, governments are sued and also sue very often. The government is a huge, huge stakeholder in the international arbitration system—not just the Government of India, but governments around the world. I again wanted to understand from the institutional perspective: what are the priorities, what are the policy interests that governments have in these kinds of disputes?

And I also knew that there are lots of law practices, especially in the West—in the United States and in Europe—that are focused on the defense of sovereign governments in these kinds of disputes. I knew that if I worked in-house as a government lawyer, that experience could help me find a career at an international law firm or an international institution which values that kind of experience. Again, all of this was brought forth, probably in my application, which is why I was lucky enough to be selected for these scholarships.

And then I had a great time at NYU, and after that I joined Foley Hoag, which—as I think was explained in the introduction—is an international law firm which specializes in the defense of sovereign states and state-owned entities in international arbitration and international litigation. So that is the kind of work I do. When I was in India, I obviously did a lot of work for the Government of India, but now I’ve done work for governments all around the world.

I can name a few—I’ve defended Croatia, Ecuador, Bangladesh, Indonesia, Japan, Thailand, Nepal, Mauritius. There are so many countries around the world that I’ve been fortunate enough to work for and defend.

So I think I am still very much a student and a learner, but what I’ve been able to do is utilize my experience that I obtained while I was in India—working in a law firm and in the government—and now I’m applying and using that experience to further and broaden my legal career and legal perspectives beyond just India.

 After listening to you, I cannot stop myself, but ask, as I understand learners will also be very much interested, that how did you make move from one of the top law firm private practice to the government of India work because it’s not easy transition and you do not get such kind of work or as a legal counsel, you do not get appointed without having certain amount of experience, the kind of portrayal of your practice, what was the process that you followed maybe that will help our learners?

And next, like you explained that I wanted to get into international arbitration and international law, by then you had already decided. How helpful was being with the government of India? Not only to get the scholarships, but also get the right kind of subjects being chosen?

Because as far as I understand, LLMs, you choose as many subjects as possible in the US, and you are allowed to have a lot of interactive subjects also. So how did you do that? How helpful was your stint with the government of India in doing all of this?

It was very, very helpful to put it mildly.

I don’t think I’d be where I am today if not for my experience with the Government of India. Now, as I said, it’s not a common transition from private law firm practice to the government, and it’s not an easy transition. But as I explained a while ago, at Amarchand we were already working with the government and various government institutions on things like negotiation of free trade agreements, negotiation of bilateral investment treaties.

We were also working on various law reform initiatives. I remember, at that time, we were working, for example, with the Ministry of Corporate Affairs on the redrafting of the legislation called the Societies Registration Act 1860. From what I remember—I don’t know if that’s been done—but those are the kinds of things we were working on.

I was already very familiar with government institutions in my work as a private lawyer with Amarchand. And that also was not a very common practice. But we had set this up in Amarchand with a very small team, just three people, and we were doing this kind of government public policy work.

I was already very familiar with government institutions, and what happened was that the government at that time was facing a lot of these international disputes. It was receiving notices from a lot of multinational companies, which had grievances and disputes with regard to various measures that the government—not just the Government of India, but also various state governments and local governments—had undertaken.

The people, the relevant powers that be in the government, were very familiar with our firm and very familiar with me and my work. They liked what they saw, and they felt that they needed someone not as an external—I mean, of course they would hire external lawyers—but they also needed someone in-house to manage these disputes and manage these treaty negotiations for them.

And they really liked my profile because at that time I was quite new, relatively new. And they needed someone who was a doer, who was a worker, who could actually sit and draft things. And they probably liked my passion for international law and international arbitration.

It’s not something that I actively sought, but it was something that I was offered—a chance. And this was, again, not very common even for the government, because as you know, in the government they don’t generally hire people from outside. I know there are some initiatives that have been taken in the last four or five years where they have hired people, but in 2013, there were virtually no people from outside being hired.

There were a few people hired as consultants. But I think those were people who were retired or had a very significant amount of experience—which in my case, there was not, because I had barely three or four years of experience. It was a very significant and groundbreaking initiative undertaken by the ministry at that time to hire an external, young professional, which was me at that time.

And they offered me the opportunity. I did not actively seek it. And that’s how I ended up there—because they were very familiar with my work, and I think they saw me as the right person who was going to be managing these cases for the government. And I managed all kinds of disputes with foreign investors generally, because the Ministry of Finance at that time—there was a body which has been abolished by now—but it was called the Foreign Investment Promotion Board.

And the Foreign Investment Promotion Board was responsible at that time for the entry and admission of all foreign investors in India. So I used to work with that cell, managing disputes with foreign investors—whether it was before domestic courts or whether it was an international dispute. And so that’s how I ended up there.

And again, I think that was a very relevant experience because, as I already said, in international arbitration—especially when you’re talking about investor-state arbitration—it’s literally called “investor-state.” One party is the investor; the other party is the state. Working for the state is a very, very relevant experience that any young professional can have, and I would encourage people to get that experience, especially if you’re keen in this field, because 50% of the dispute is about the state, and 50% is about the investor. You get a wide perspective about how state institutions work, what the policy priorities are—things like that. I gained that relevant experience and then used it to advance my career in the ways that I could at that time.

 You have represented, as you said, many, many sovereign and private clients across the globe within arbitral work.   In your view, what kind of procedures do you look forward to, or what kind of strategic restrictions have you seen while working with these kinds of forums in different jurisdictions? How do you see those differences and how your study in India and your study as an LLM student in the US has shaped your understanding and has helped you build such procedures, such strategic points to develop those drafts?

Because they are the only ones which we are privy to and we learn from those. So how have you worked towards these concepts and aspects to make sure that it is understandable by the layman I would say? Also how do you make sure that governments make it easier for the society, in any jurisdiction whatsoever you have worked with?

Each case, each country, as you said, it’s very different. I mean, obviously there are certain common international law rules and standards which all states have to abide by.

There are certain normative standards in any international treaty—whether it’s a bilateral treaty or a multilateral treaty—there are common standards that have to be followed, whether it’s by the state or by a foreign investor, whether it’s by an international institution or individuals.

That is there. But I think what I’ve learned is that each case and each dispute, in your capacity as a practitioner—probably if you practice dispute resolution in any form—you would’ve realized and understood that each case is different.

I think it’s about understanding and applying the specific facts of each case, because these are complex disputes. The moment a state is involved in a dispute, it gets more complicated than any other private dispute, because when you’re talking about a state—and let’s take the example of India, or we could take the example of any state, honestly, in my view—even a small state, like a small country, relatively small like Mauritius, because I’ve done a lot of cases for the Government of Mauritius, it’s an island. But the government in any country is a very large machinery. It’s probably one of the largest employers. It has many organs, it has many departments, ministries, and the government under international law is not just the central government, the federal government. Under international law, state responsibility arises not just for the actions of the government at the central level, but also at the state level, also at the municipal level. Any actor, any person who’s acting on behalf of the state or exercising governmental authority—the actions of such a person or entity—can give rise to state responsibility under international law.

So what you’re dealing with is a very large and complicated institutional mechanism. You have to understand how it works, and it works in different ways in each system, each country. Now, there are certain common threads. For example, one common thread that I’ve learned in all of these cases is that each government has an interest in protecting its policy space, protecting its regulatory space.

So, for example, one of the earliest cases that I did while I was here in Foley Hoag was a case for the government of— I mean, I was not directly involved in that case, but I know of that case. We did a case for the Government of Uruguay. And this case was a challenge by a very big international tobacco company called Philip Morris against the laws that were passed by the Government of Uruguay mandating that all cigarette packets should only have plain packaging—like you cannot have any advertisements or logos or any form of branding on a cigarette package that is out for sale in a supermarket or in a shop. And I think, for example, India also has some kind of similar laws, because you need to display on a very wide and big scale on any cigarette pack that it’s injurious for health. And you have all these kinds of gross photos and everything that show what cigarette smoking can lead to.

So foreign investors—not just in Uruguay, but I’m aware that in other countries around the world—also challenge those kinds of actions because they said that it is an attack on their intellectual property, because as manufacturers, they have a right to advertise and to display their brand on cigarette packets.

But the government’s position was that no, this is something that is undertaken in public interest. This is something that is undertaken to protect public health, because the government has an interest in protecting the health and environment of a wider degree of population. So the argument is that the public interest of the state in promoting health and promoting the non-use of cigarettes takes precedence over the intellectual property rights of a foreign investor. So that’s the tension. That was the tension in that dispute.

So, as I said, all governments have some sort of policy interest and regulatory interest that they want to protect. And whenever that clashes with the interest of the commercial—mostly commercial—interest of the foreign investor, that gives rise to disputes.

And that is the challenge that you have to understand in each case. Each case has different facts, and you have to first understand the facts—what are you dealing with? And then obviously, there are certain common standards and norms that you have to apply to those facts.I think that’s the challenge that I faced in every case or every dispute that I handled.

You are also admitted to the bar of Washington DC, New York, and New Delhi as well, which is in itself an achievement. How has this multi-jurisdictional licensing for yourself helped your legal practice? And how do you see that managing all of these demanding practices across different legal systems has helped you not only understand as a person how much you can influence public policy making, especially keeping in mind your strength in India and the way you are working internationally as well. We would request you to share some nuggets about those so that we can understand how one can plan their future the way you have done?

Firstly, let me take a step back. If you want to practice as a lawyer in the United States, you have to be admitted to the bar. So I don’t think it’s something very revolutionary. I mean, you have to pass an exam, which I think is a very tricky exam. I’m not gonna say that it’s a tough or a difficult exam—it’s quite tricky because it’s quite unlike what students of India must be used to taking in the form of exams.

It’s a very practically oriented exam, and it’s an exam that is focused more on your legal writing and your practical skills—bringing out your practical skills as a lawyer. So you have to pass that exam to be able to practice as a lawyer in the United States, like it is the case in India.

I passed that exam, which, as I said, was a very tricky and different kind of exam. And then, when you practice as an international arbitration lawyer, you practice in various jurisdictions—because it’s literally international. The dispute or the parties or the elements of the case could be from anywhere around the world, which is why I am also admitted in DC, because Washington, DC is a very relevant jurisdiction. We have the World Bank here, we have the DC Circuit Court and the DC District Court where a lot of these lawsuits by foreign investors are filed—whether it’s for the enforcement of awards or whether it’s for set-aside.

I think, as an international arbitration lawyer, you have to have a very international profile, and it always makes sense to be admitted and recognized in these various jurisdictions so that people know about your profile. That also helps with attracting more work, and people again know about you.

And so that’s why I’m not just admitted in DC, but for example, I’m also—I think it was mentioned in the introduction I’m a fellow of the Malaysian Institute of Arbitrators. So again, what I try to do is cast a very wide net, because in terms of building my international profile, it’s very important that I am visible and present in various jurisdictions—and which is why I’m admitted.

Thank you so much. I know it’s very important to be admitted to the bar just to practice, but as you’ve said, it’s very tricky in the US unlike to what we are accustomed in India, there is a huge difference between the way we take this here and how it is there, so definitely it’s a super achievement. I want to say. Although it’s mandatory, it’s still a big achievement.

But I just wanted to add one more thing for people who may listen to this interview. I don’t know how many people would, but if you want to practice and come here in the US, one very, very important thing—as lawyers in India, at least from the time that I was studying—is that there’s a significant amount of difference in legal writing. I mean, the US is also a very common law-based system. Although it’s developed in a very unique way, India is still very rooted and very similar to how the English legal system has traditionally been. But the US is also a common law system.

So, understanding the laws here and understanding how institutions work is not an issue, but the practice of law—the practical aspect of practicing law—is very, very different. I do not think, and I do not recall from my time in India, whether it was as a student or a practitioner, devoting enough attention to and developing my skills as a writer.

But as opposed to that, in the US, writing is probably the most important skillset you will have as a lawyer. Of course, oral advocacy is important, and in India, I think we are very good oral advocates. We are brilliant orators, and we are good debaters. That is something that comes naturally.

But I don’t think there’s enough attention paid to legal writing. I think even the bar exam is a test of your legal writing skills, because I think there’s one day—from what I recall now, this is 10 years ago—but one day is devoted specifically to writing essays. And in India, I remember when I used to write essays in exams, it was all about filling the number of pages. You just write as many pages as you can in the shortest time possible and cite as many cases as you can. If you do that in the US, you’re most certainly going to fail. There is absolutely no doubt. The professor or the evaluator is not even going to read your paper.

They’re going to throw it away in the bin. So it’s not about filling the pages—it’s really about being succinct. Being precise and being concise is very, very important. There’s a famous quote that “brevity is the soul of writing.” I don’t know who this quote is attributed to, but this is very, very important.

Brevity is very important. In the US, you have to be able to write and convey things in a very simple, in a very layman sort of way. Unlike India, where we sometimes use these heavy proses, complex words, and very long paragraphs. That doesn’t sell. Even if you look at the judgments of the courts in India—sometimes we have Supreme Court judgments—I remember reading some of these constitutional law judgments of 500, 600 pages. I remember there was a case, a famous case called Indira Sawhney versus Union of India. This was a case on reservation. This was like some thousand pages. It was a very landmark case. But if you take a landmark case here in the US, written by the Supreme Court, it would no longer be more than 30, 40, 50 pages.

So, if you want to come here and practice as a lawyer, think about developing your writing skills. Think about being concise. Think about being precise. And do not think about just filling in the number of pages, because then you’re going to not just do poorly in your master’s or whatever other legal studies you pursue, but also not do well on your bar exam.

I think that’s a very important lesson that I learned—and I’m still learning—because it takes time to adapt between different legal systems.

Thank you for honestly highlighting the need to unlearn and relearn, especially around precision in legal writing. As we near the end of this conversation, I’d like to ask, how have you managed your work-life balance while engaging in high-intensity arbitration, academic writing, and speaking at global forums? What practices have helped you maintain your mental, physical, and professional well-being? Could you share your checklist with our learners?

That’s again a very relevant question. I think, especially in this age where there’s so much intense competition and there are obviously work pressures everywhere.

I think that’s something I don’t think I’ve mastered, but I’m happy to share what I do. I’m still a learner, and I think most of us are learners. So, one thing that I certainly have is the capacity—the mental capacity—I’ve developed to be able to switch off and on. When I’m working, I’m fully focused on working, but I do know that at some point during the day or during the week, I’m not going to be working. So I have the capacity to switch off and focus on my personal life. I have a family, I have kids—I have two young boys—which I think helps. I’m not saying it’s going to be the same for everyone, but people could have different motivations and things to do in their personal lives.

It could be a hobby, it could be anything, but I think it’s important to recognize that your life extends not just to your profession or your practice—it extends beyond that. There are important things beyond that. So I have the mental capacity to switch on and off, and it doesn’t take me a long time to do that.

I’m very, very flexible, and fortunately, I mean, work is very intense, but my colleagues and my employers are very flexible in the sense that I can switch off at any time. For example, on a day when I do not have a lot of work and I have sufficient downtime, I can completely switch off and focus on my family—take my kids out to play soccer or football, as you call it in India—or do something with them, or just read a book or watch a movie.

So I think I do that. The second thing I’ve very much learned—and I think this comes with age; for very young people, this may be difficult because you’re still trying to develop and establish yourself—but I think it’s very important to focus on your physical health, because we ignore that.

I certainly have learned in the last, I would say, three, four, five years to focus on my physical health. I at least take out like 30 to 40 minutes in the day—not much, because you don’t get more than that—to just focus on my physical health. I get up early in the morning, do some sort of physical activity, eat the right kind of food. I think it’s very important, because sometimes as lawyers—I remember, especially when I started my career—we used to eat all kinds of junk food. I have realized, I think these are very small things, may sound insignificant, but again, all of it is connected and affects your mental health and your physical health.

I think eating the right kind of food, getting enough sleep is very important. You will have days and you will have zones where you will not be able to do these kinds of things. For example, when I’m in a hearing—in arbitration, especially in international arbitration—hearings are held in a block.

It’s not like in India where you have a court date, and then you get another date two months later, and then you come back. Our hearings are like 5- or 10-day hearings, and they’re held in a block, in a consecutive period. So, for example, when I’m in a hearing or preparing for a hearing, there would be two or three weeks when I’m not able to do any of this.

When I’m not able to do any exercise, when I’m not focusing on eating the right kind of food, when I do not have any personal downtime. But that’s something that you have to accept, because it’s a very intense and demanding practice. And at the end of it, there is a reward.

When you finish your hearing, when you finish these intense periods, then you know that you will get a downtime. So, you focus on that downtime, you work hard during that period, and then you switch off once that is over. I think switching on and off, eating the right kind of food, physical activity, and recognizing that there is a life and there are important things to do beyond the law and beyond your practice—

I think these are the three or four things that I have recognized as important. That said, again, as I said, I’m still learning, and it’s not like I’m in peak physical health or anything, but mentally—I think also mentally—it’s very important. Sometimes mental health is ignored—I would say more in India than in the US.

It’s very important that if you have an issue or if you have a challenge, you speak to your peers, you speak to your colleagues. You don’t hesitate to speak out. If you’re facing a particular issue in your workplace, you speak to your family. Don’t keep it within yourself.

Don’t be lonely. I think go out and make friends, make acquaintances, and recognize that law is just—ultimately—it’s just a career, right? You know it’s going to get over at some point, and then you’re going to do something different. So find something different.

That’s the challenge, I would say.

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