This article is written by Sharad Yadav from the Institute of Law, Nirma University. This article will give you insight into whether learning arbitration prepares one for career opportunities abroad. In addition this will help you to understand the different aspects of international arbitration.
The globalization of different businesses across the countries has been a fact for several decades now, bringing vast economic opportunities in different sectors. However, running a business across borders creates obstacles on multiple levels, such as linguistic, logistical issues, even in successful endeavours.
In this particular environment, lawyers have had to evolve and adapt their services and skills to enable their business clients to accomplish their aims and apply their capabilities most fully. Lawyers with experience in managing cross-border transactions are highly valued by their clients for helping to clear the path and get sophisticated and complex deals closed. If you are interested in developing your legal career and forging a specialization that is increasing in demand and transferable across continents, jurisdictions, and industry sectors, you should consider learning more about international arbitration.
Alternative to litigation
The contracts between the parties or companies do not always work out well. Even the best and the most robust drafting can not prevent the risk of arising a dispute between the parties. The contract happened between the reputed big companies. If some dispute arises, they can not go to court because it will damage the reputation of companies heavily in the international market. There are a lot of examples where the news of ligation spreads and the shares of the companies fall drastically. No company wants its reputation of the company to degrade in the international market. Now the companies are not used to the traditional system of litigation. Firstly they try to resolve the dispute by Arbitration. Presently the companies use it as an alternative to traditional litigation. A study conducted by FTI Consulting “Dispute resolution in the global economy” revealed that the companies which are based in the middle and far east are increasingly looking towards arbitration as the best option for resolving international disputes. There are now more and more companies that insert arbitration clauses into the commercial agreement.
The traditional litigation system takes a lot of time while arbitration takes much less time. Due to the exuberant amount of cases, court decisions are decided very late, which in turn makes the company suffer a lot. Arbitration not only saves time but also saves the litigation costs of the companies which are very high.
Increasing demand for international arbitration lawyers
Arbitration centres around the world publish a report annually on their caseload which provides a clear picture that the demand for arbitration as a method for solving disputes has increased drastically. If the demand for the arbitration method has increased, it is obvious that the demand for arbitration lawyers will increase. The London Court of International Arbitration (LCIA) reported an increase of 10% of the caseload in 2013 as compared to the previous year.
This consistency and significant growth show one thing that there are opportunities for dispute resolution lawyers with experience and expertise in the arbitration proceeding. Increasing the use of arbitration as a method directly impacts the demand of lawyers because without a lawyer the arbitration proceeding can not proceed.
There was a study done by Syracuse University in which it found that due to globalisation the demand for international lawyers with language skills, cultural awareness, and overseas experience has increased. There is one famous quote there that says, “A man who is his own lawyer has a fool for a client”. This is true when it comes to court but it is not necessary to be applicable to arbitration. Gary Born who is one of the world’s leading international arbitration lawyers explains that some parties opt to represent themselves in the proceedings of arbitration disputes in which the main issues are primary technical issues and commodities disputes. However, in the majority of the international commercial arbitration proceedings, parties do retain an external counsel who has the expertise in the particular subject matter. Such parties benefit from the experience and expertise in dealing with the complex procedural and judicial issues which might arise in international disputes especially in circumstances where no appeal is available.
Skills required to become an International Arbitrator
There are certain sets of skills required for a lawyer to become the best international arbitrator.
Knowledge of law
We know a lawyer without the knowledge of the law can not be called a lawyer. When you are going to deal with an issue then the opposing counsel can hail from anywhere in the world so you have in-depth knowledge. One thing which makes one lawyer better than other is the knowledge of the law which comes from experience.
Communication skill is also one of the requisites to become a good arbitrator. They need to be polite and versatile. This communication skill is not only needed for this career but in every career field, this skill is requisite.
It is important that the person is always curious to know something new as in international arbitration many new laws will keep developing with time from different jurisdictions but if the lawyer is not curious to learn new things then this career option is going to be very difficult for him. Every problem which will come to your doorstep, you will need a solution to that problem so it’s better to be curious to know new things.
International arbitration rules
Many international arbitration institutions provide rules and regulations which govern the resolution of disputes through arbitration proceedings. The famously known rules of arbitration include those of the London Court of International Arbitration (LCIA), International Chamber of Commerce (ICC), the rules of the Singapore International Arbitration Centre (SIAC), the International Centre for Dispute Resolution of the American Arbitration Association (ICDR), the Hong Kong International Arbitration Centre (HKIAC), and the United Nations Commission on International Trade Law (UNCITRAL) rules. Investment arbitrations are often resolved under the rules of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). Many arbitrations involving Russian businesses generally take place under the rules of the Stockholm Chamber of Commerce (SCC).
How are international arbitration awards enforced?
A very well-known treaty relating to arbitration is known as the New York Convention, which entered into force on 7 June 1959, arbitration awards can be enforced in most countries, unlike traditional court judgments. Over 150 countries have ratified the New York Convention today, meaning that the arbitration awards can be enforced and applied in approximately three-fourth of the countries recognized by the United Nations.
The basic laws on which international arbitration lawyers argue a case are the governing law of a tort, the law of contract, the arbitration laws of the seat of arbitration, and the New York and Washington convention (alternatively known as the ICSID Convention).
International Institutions related to arbitration
Singapore International Arbitration Centre
It is one of the best centres for joining as not only high profile cases but a lot of exposure can be gained by working here. If someone is interested in the field of international arbitration then he/she should join this institution but that is not going to be easy as there are a lot of people who will be already in the queue for this.
World Intellectual Property Organisation Arbitration and Mediation Centre
This centre enables the private parties to settle their domestic as well as cross border commercial disputes. This centre specializes in IP and technology disputes. This centre is widely known for solving the disputes of the domain name under WIPO-designed UDRP. One can join this if he is interested in IP and technology disputes
London Court of International Arbitration
Today we are well versed that London is called the financial capital of Europe. This can be the best place to work for international disputes related to commercial matters. Around 80% of cases that are pending here are not of English nationality so here you can get great exposure. It has access to the most eminent and experienced people from many different countries with the widest range of expertise.
Hong Kong International Arbitration Centre
This is a non-profit organization established under Hong Kong law. It has been ranked first worldwide for location, IT service, and value of money. According to a survey conducted by Queen Mary, University of London and White&case it is the 3rd most preferred arbitration centre in the world. It is self-sufficient and completely free from any type of influence and control.
Indian Arbitration Act applicable in foreign seat
In the landmark case of PASL Wind Solution Private Ltd. v. GE Power Conversion India Private Ltd.,2021 Supreme Court of India held that two indian parties are entitled to elect a foreign seat of arbitration.Apex court further said that the arbitral award passed in such type of cases would be considered as a foreign award enforceable under the provision of Part II of the Arbitration Act,1996 (“Arbitration Act”).
Role of dual-qualified lawyers in cross-border arbitration
As we know with the recent developments and globalization trends in the legal profession they are no longer confined to the jurisdiction in which they are born or have completed their education. Now lawyers can work in various countries throughout the world, become qualified in a second jurisdiction to increase their knowledge and experience, and be able to better meet the expectation of the clients.
Dual qualified lawyers admitted as English solicitors are in a better position in arbitration work. As we know that the clients/parties have a preference for either domestic laws or English laws as the choice of law for their agreement. Due to this, international lawyers with expertise in both their domestic jurisdiction and the English legal system are well placed to offer clients a one-stop-shop for the arbitration work done. Although clients, many at times opt to use London as the seat of arbitration, they may also use the LCIA’s rules.
Hence, dual-qualified lawyers whether based in the UK or in their home jurisdiction, have a unique advantage in offering to clients. They have an option to represent their client in arbitration proceedings both in cases involving their domestic legal system and in cases involving English law both locally and in London, the world’s capital of arbitration and one of the command centres of the global economy.
Indian law firms
There are many law firms in India which handle the cases of both domestic as well as international arbitration. If a person wants to make a career and wants to handle international arbitration disputes then he can join their law firm. Few of them are given below:
- Shardul Amarchand Mangaldas
- Economic Laws Practice (ELP)
- Advani & Co.
- Khaitan & Co LLP
- PSL Advocates and Solicitors
- Singh & Associates
- Singhania & Partners LLP
- BRUS CHAMBERS, Advocates & Solicitors
- Clasis Law etc.
Join firm who is having best friend relation with a foreign firm
There are many law firms in India that have best friend relations with foreign firms, which means their employees can handle international cases.
- TT&A is having best friend relations with Linklaters LLP. They frequently collaborate with Linklaters across all practice areas of TT&A. Its associates are regularly seconded to various Linklaters offices and participate in common training and know-how programmers.
- BTG is having a best friend relation with International legal services provider, Osborne Clarke. Osborne Clarke is working on the areas particularly facilitating Indian companies setting up operations in Germany.
- India Law Partners is having the best friend relation with Ashurst LLP which is a leading international law firm headquartered out of London with a network of 26 offices in 16 countries.
- Tuli&Co. has a best friend relationship with English international law firm Kennedy. Benefiting from an official relationship with Kennedys, it is active in such specialist areas as the construction,marine,aviation and trade credit spherence.
Other than this there are many law firms in India which are having best friend relations with foreign law firms in India. If you are interested you can check the particular law firm website where most of the firms mentioned their best friend relation if they are having any.
QLTS as an opportunity to advance your international arbitration career
It is important for the legal practitioner with a keen interest in becoming an international arbitration lawyer to qualify as English law. The key to unlocking the high-handed opportunity is the Qualified Lawyers Transfer Scheme (QLTS) which is basically a fast-track route for international lawyers to qualify for the English solicitors. QLTS is controlled by the Solicitors Regulation Authority (SRA) which is an independent regulatory body of the Law Society Of England And Wales.
It is important to note that the majority of lawyers seeking to become dual qualified English solicitors through QLTS do not intend to practice in London; instead, they prefer to stay in their home jurisdiction and utilize the skill which they gained, by qualifying as an English solicitor. Whether a lawyer chose to work in a leading firm in London or remain in their home jurisdiction and develop their arbitration practice and expertise locally, holding the dual qualification in English law will definitely create many opportunities in the legal profession within international arbitration.
International arbitration is seen as a crucial tool for maintaining confidence in cross-border transactions, and international arbitration lawyers have a vital role to play in this. Demand for international arbitration lawyers with deep commercial and industry knowledge is strong within both law firms and in-house positions. If anyone wants to pursue a career in international arbitration then he has to go on the right path because there is a lot of competition in this field. Now people are seeing this field as interesting and the pace at which people are pursuing this is very high. It’s always better if you start your preparation for this as soon as possible.
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