This article is written by Abhyuday Agarwal, COO, iPleaders , with substantial inputs from Anubhab Sarkar, partner at Triumvir Law.
Arbitration is growing in importance each year. Most contracts that are executed today have an arbitration clause, whether it is a terms of service, or a contract with your post-paid mobile phone company, an insurance contract, a joint venture agreement, a shareholders agreement in a private equity or venture capital transaction, a loan agreement with a bank, a government contract or a technology contract.
If you have an interest in arbitration, starting early is important – those who start early reap disproportionate benefits. For example, a friend of mine who was interested in mediation was appointed to the Delhi High Court’s mediation panel at the age of 24. Another friend, who is an industry expert for our arbitration course and who provided me inputs while writing this article, started his own law firm called Triumvir Law at the age of 26.
Merely studying what is taught in your college is not sufficient to give you an edge, because there is tremendous focus on academic issues and grey areas, statutory provisions and case law. Further, everybody in your batch (and across India) is taught from the same syllabus.
To obtain an edge, you will need to develop the following:
- a sense of strategy (how to get the optimal relief for a client through arbitration, how to swiftly get the award or how to challenge the arbitration, depending on whether you are a claimant or a respondent),
- understanding of commercial contracts so you have an idea of where disputes may arise and how to represent your client’s interest,
- Knowledge and insights to create your own arguments and
- the ability to express your thoughts in writing (many of us do not develop our writing abilities at all or to the fullest potential due to various lacunae in the legal education system)
In short, a comprehensive approach to solving problems and providing solutions to clients is necessary.
Even if you subsequently get into core litigation or build your career as a corporate lawyer (whether in a law firm or as an in-house counsel), having deep knowledge of arbitration can be very beneficial for your career.
How can law students prepare themselves for a career in arbitration?
I am suggesting a few actions law students can take in law school itself to start preparing for a career in arbitration below.
Join a chapter or community for ‘young’ arbitrators and attend conferences in or near your city or country
Most arbitral institutions have a specific chapter or community for ‘young’ enthusiasts. You may need to become a member (for free or for a small amount, but for students this is incredibly cheap) to join the community. Some of the communities that exist are:
- Young MCIA (by the Mumbai Centre for International Arbitration, a fast emerging Indian arbitral institution)
- Young SIAC (by the Singapore International Arbitration Centre)
- Young LCIA (by the London Court of International Arbitration)
- Young ICC (by the International Chamber of Commerce)
- Young ICCA (by the International Council for Commercial Arbitration)
- Young MCI Arb (by the Chartered Institute of Arbitrators)
Make an effort to attend and participate in any conferences that are organized, especially in your country. For example, the Permanent Court of Arbitration had organized a conference in October 2018 in New Delhi.
Consider travelling to another city if you can afford it – if you go with a clear plan to meet people and build relationships and keep doing it consistently your knowledge and network will both expand.
Get mentors and actively network with them
Make sure you actively cultivate mentors in the areas of your interest, who have already been where you want to get to. It is much easier to proceed in the right direction with the guidance of a mentor than do it all alone. You will have enough work to do on your own, don’t add to your burdens.
Remember, irrespective of your age, you can get very worthwhile learning opportunities and projects, so make sure you keep in touch with more and more people. Visibility is critical for you to get opportunities. Thus, networking is mandatory. Some meaningful ways to network with people are to follow them on LinkedIn, comment on their posts, read their work and ask questions, share your work and ask for inputs and feedback, etc. At the same time, do not forget or hesitate to ask them for any professional help or introductions when you need it.
Take up additional courses
Taking up a good course that fits your need can really accelerate your learning and provide new perspectives. In my college days taking up the CFA Course (Level 1) was very useful for me in acquiring a sense of how to look at things like a businessman and to think from a financial perspective. I have subsequently been able to use this effort in designing Lawsikho courses with a very practical perspective, identifying legal strategies to solve problems and in helping people draft better contracts.
In the area of arbitration, there is a volume of case law to explain and clarify the provisions of the Arbitration and Conciliation Act, but what happens step by step when there is actually an arbitration and how different aspects of arbitral proceedings work remains a mystery for those who have not already worked on a few arbitration matters themselves. Other questions which remain a mystery are:
- What is the process like and what are the sequence of steps? What are the different proceedings before an arbitrator?
- How to draft different documents for the arbitration, including commencement of arbitration proceedings?
- How can you get the best immediate relief for your client?
- How do arbitrators take evidence?
- How do you speed up or slow down an arbitration proceeding (depending on whether you are a claimant or a respondent)
- Where is judicial intervention possible and what strategies can you use to minimize it?
After recognizing this need, we created the Executive Certificate course Certificate Course in Arbitration: Strategy, Procedure and Drafting to explain step-by-step how an arbitration proceeding works, what is the work of a lawyer at each step of the proceeding and how to perform each aspect of the work. You will even draft different documents through simulated exercises, on which you will be provided feedback.
Write for blogs
Writing posts for different blogs online such as Indian Corporate Law blog, Mondaq or iPleaders blog enables you to build an online identity and expertise amongst different audiences. Indian Corporate Law blog is an excellent forum to build your credibility as an academic or a writer on cutting edge developments in the law amongst a community of lawyers, academics and other technical readers. As a student, although you cannot directly write on Mondaq, you can co-author an article with a senior working at a law firm (if they publish on Mondaq).
Similarly, writing on the iPleaders blog provides an opportunity to provide a solution-oriented approach on the problems that businesses and other stakeholders face and how to resolve them. This will enable you to build your expertise and network with a varied set of people.
This approach will also help in getting shortlisted for interviews. Recruiters go through your CV before shortlisting you – if you share links of published articles on your CV, recruiters can go through your article and get a sense of how deep your understanding of the subject is.
For this reason, Lawsikho’s Executive Certificate Course in Arbitration: Strategy, Procedure and Drafting has a focus on developing your writing abilities. We give you a number of writing assignments to do so that you get trained in writing articles of publishable quality. Articles which meet our quality standards are published on the iPleaders blog. You can take a look at a recent article around dawn raids by the Competition Commission published by a student of a Lawsikho course here.
Many students wonder why they should take up an online course for improving their writing skills, but we have seen their legal research, analysis of law, ability to create a logical structure for their article, articulation and the timeline in which they write an article drastically improve after getting coaching and feedback on the articles they write. Their timelines for writing an article reduce from months to writing a publishable article in one day. You can imagine what kind of authority you would command if you published even five articles per month from your law school days.
Learn contract drafting and how business works
You need to have a sense of how businesses work and understand the commercial sense behind different kinds of contracts. That will give you a sense of where disputes will arise. You will also have an understanding of how the entire agreement works, which will be critical in representing your client’s interest if a dispute arises. You can refer to this Diploma Course in Advanced Contract Drafting, Negotiation and Dispute Resolution to understand how business contracts work. One ancillary benefit of this approach is that it will also enable you to draft more effective contracts and arbitration clauses, and serve clients through advisory work as well, in addition to helping them with arbitrations.
Go beyond theory and trivia
I will illustrate this through an example. If you read a case on a theoretical proposition, such as whether arbitration proceedings can be initiated when third party rights are affected, don’t always look for a Yes/ No answer. Sometimes, the situation you want an answer to could be a grey area. At the same time, if the proposition is not finally resolved and you find conflicting judgments and authorities, don’t just conclude that it is a ‘complex’ issue and abandon your inquiry. That is a shallow approach inquiry and will not yield benefits for your career.
Instead, try to understand in which factual situation courts have decided the way they have. Many aspects could be different in different cases such as the context, the situation, the evidence available or the arguments taken by the parties, which leads to difference in the court’s views. If you read carefully you will be able to recognize a consistent pattern or theory that is followed in all the cases, even though their conclusions are different. You can write about these discoveries and insights.
Which approach do you think will have a greater impact and influence on prospective recruiters?
Track global developments on blogs
If you have an interest in international commercial arbitration and in investment arbitration, it is important for you to track legal developments and case laws globally. Referring to free blogs such as Kluwer Arbitration Law blog, Global Arbitration Review, Herbert Smith Freehills Arbitration Notes, Arbitration Nation, blog of EU Investment Law and Arbitration Review is a great way to start.
Leverage participation from arbitration-focussed moot court competitions optimally
You would have known about this one, but I still want to write about it so that you know how to ‘leverage’ your moot court experience for career benefits, which is something people are weak at. Mere recognition as a ‘stud’ in your law school is not sufficient if you cannot translate it into real career benefits.
If you have an interest in arbitration and want to learn the subject better, you can strategically focus on arbitration-related moots for practice. It will challenge your mind to develop arguments and give you practice in performing legal research, reading case laws and articulating your arguments to solve a problem or to make a point.
Make sure you have clear takeaways for your career (something you can say in your interviews) from your mooting experience. Typically, this will require you to perform some additional legal research and stay updated on subsequent legal developments and articulate how the situations or legal propositions relevant to the moot problem will apply to an Indian context or where an Indian entity is a party. Many people skip this step, which hurts their chances of cracking interviews successfully.
For those of you who want to know of some reputed arbitration moots, here is a list::
FDI Investment Treaty Arbitration Moot,
- Willem C. Vis International Commercial Arbitration Moot held in Vienna
- Vis East Moot, held in Hong Kong
- NLS Trilegal Investment Treaty Arbitration Moot
- Frankfurt Investment Arbitration Moot
Choose an arbitration seat if you get a vacation scheme
For those of you who want to specialize in arbitration and secure a vacation scheme or a training contract with a foreign law firm, you can also opt for a seat or a short stint in international commercial arbitration to get a sense of the work. It can really widen your perspective, even if you do not eventually work there. Your approach to understanding a client’s concerns and how international disputes are handled will develop.