After 27 years at international law firms, including heading international arbitration practices at Herbert Smith Freehills and Bird & Bird in both London and Singapore, Nick Peacock went independent and says it made him "conflict-free" for the first time in his career. 

In this conversation with Bar & Bench's Pallavi Saluja, Peacock, who has acted for Tata Sons, Bharti Airtel, Vedanta and Reliance over the years, talks candidly about why a large law firm practice meant turning down 8-9 of every 10 arbitrator appointments he was offered.

He also talks about the Mumbai Centre for International Arbitration's (MCIA's) first decade and why arbitrators, unlike counsel, are unlikely to be early adopters of AI.

[Watch Interview]

Edited excerpts follow.

Pallavi Saluja (PS): What prompted you to make the move to independent practice?

Nick Peacock (NP): It was a move of indulgence I think in some respects. I'd done 27 years in law firms, which was wonderful. It's a privilege being a part of an international law firm, but there's also a lot of freedom that comes with being on your own. A number of people at my stage are doing that. I was encouraged by some to consider it and it enabled me to sit more as an arbitrator, which is fundamentally my day job now.

PS: How has the transition been? Has it changed the way you approach arbitration space now?

NP: Yes, it has. In law firms, I was doing both counsel and arbitrator work to an extent. I still do, but my practice has largely flipped and sitting as an arbitrator is now about 99 per cent of what I do. That gives me a different perspective on the market and my interest in arbitration practice now is really about trying to make it work from the bench.

PS:  You also mentioned that going independent made you feel conflict-free for the first time in your career. How significant is independence and freedom from conflicts in building an arbitrator's practice?

NP: Very important. At a large law firm - I was at Herbert Smith for many years, then Bird & Bird - the firm generates an enormous number of conflicts and naturally those are strongest in the areas you're known for. Having spent much of my career in law firms working for many of the larger Indian corporates, I simply couldn't take on many arbitrator appointments while in that position. Going entirely independent has been revelatory in terms of what I can now accept. At an international law firm, you're lucky to take 1 or 2 out of every 10 approaches you get. Now, conflicts are just a small issue in my appointments.

PS: What are some things you now notice as an arbitrator that counsel may not always appreciate?

NP: It depends on whether the counsel has also sat as an arbitrator themselves. I was fortunate to start sitting many years ago and that gives you a different perspective. It informs what you ask a tribunal to do as counsel, because you understand there are things an over-enthusiastic counsel might request that a tribunal simply can't grant, because it wouldn't give both parties a fair opportunity, or it would short-circuit the process.

Once you've sat on a tribunal, you understand you're the guardian of that process: you need to reach the right decision on the merits, but you also have to ensure both parties get a fair chance to put forth their case. As counsel, you don't always keep that front of mind, because you're focused on advancing your client's position, which is right; that's your job. But push too far as counsel and you risk endangering the process and, ultimately, the award itself. Counsel sometimes forget that. As a tribunal, you never can.

PS: What makes an advocate particularly effective before an arbitral tribunal and conversely what tends to frustrate a tribunal?

NP: What makes you effective is putting yourself in the tribunal's shoes and thinking about the hurdles they'll need to overcome to give you the decision you want. As counsel, in court just as much as in arbitration, you're trying to persuade the decision-maker that there's a proper path, under the law and the facts, to the outcome your client wants. If you think like the tribunal that has to write the decision, you'll know exactly what roadmap you need to lay out. That's what makes you effective - if counsel's submissions are ones I agree with, they can form the skeleton of my award. That's great counsel work and it's what I always tried to do myself.

Conversely, if you don't give the tribunal answers to the hard questions it will inevitably face, that's when you stop being helpful. If you're the claimant and there's a difficult part of your case and the tribunal asks about it and you don't grapple with it, you're not being effective because if I can't get to the end point you want, the tribunal can't give you the decision you want.

PS: Having sat both as a sole arbitrator and as a 3-member arbitral tribunal, what are the particular challenges you would say of the two models?

NP: Sitting alone, you're more nimble; you only have yourself to consult, so you can move and respond quickly. On a 3-person panel, you have to act together. If you're a wing member, your job is to make your views known and help the tribunal reach a collective decision. If you're chairing, your job is to ensure everyone gets a fair opportunity to be heard and that you arrive at as unified a decision as possible. There's also time pressure as parties want their outcome quickly. That's inevitably harder to manage across 3 people than 1, but that's part of the role.

PS: Which one do you enjoy more of those?

NP: Good question. The honest answer is I enjoy all of it and I'm fortunate to currently have a practice that includes both. If you only sit solo, it can feel a little lonely and you find yourself wanting the different dynamics, friendship and collegiality of a 3-person panel. But equally, sometimes on a panel, working toward a collective decision, you wish you were sitting alone because you already know the answer and you just want to give it.

PS: You've acted for Tata Sons, Bharti Airtel, Vedanta, Reliance on India-related work. What do you think has changed most in how Indian conglomerates approach arbitration now compared to your early years?

NP: Investing into Europe is different from investing into Africa; different dynamics and challenges come with each. Companies that have been through that journey have learned how arbitration can benefit them in ways courts often can't, in many jurisdictions. They've become far more sophisticated users of arbitration, having had exposure to different institutions and jurisdictions and they've developed clear views on the seats and governing laws they prefer. Like all of us, they've been on a journey over that time.

PS: As a founding council member of MCIA, what's your honest assessment of how India has progressed in the international arbitration space? Is MCIA at a stage where you thought it would be when it started?

NP: It's gone far better and faster than I expected. I've been involved in the Indian arbitration market for about 20 years and a great deal has changed. The market has grown and developed very positively. Arbitration here works so much better than it did 2 decades ago. The 2015 amendments brought some big structural changes and some smaller ones too - the tweak to Section 36, removing the automatic stay, changed the nature of court-related arbitration practice here significantly. I'd been hoping for that change for a long time.

The MCIA has done fantastically. It was a good venture from the start and I was fortunate to be involved in drafting the rules and later on the council. Madhukeshwar (Desai) and Neeti (Sachdeva) have done a wonderful job. It's an Indian institution whose growth is helping the Indian market, giving a genuine domestic alternative to ad hoc arbitration, which matters enormously. It's carved out real space for itself and set standards that, in competition with other institutions, will help the wider Indian market.

Last I heard, it had issued 182 awards and not one has been set aside so far, which is genuinely impressive. Challenges will come eventually, but the volume and quality achieved so far and the pressure it's put on others in the market to keep up, make for a very healthy environment.

PS: Having worked both in London and Singapore, do you think Indian parties naturally gravitate towards Singapore for arbitration?

NP: Funnily enough, when I was in Singapore, I saw so much India-related work and such a clear pull toward Singapore that I assumed that everything was moving there. Then when I moved back to London, I was surprised by how relevant it remained. I now have a foot in both jurisdictions, which gives me a nice triangulation between London, Singapore and India.

London has stayed genuinely relevant. There's a strong investment corridor and a strong legal corridor. One thing I've noticed over the last decade is the number of Indian senior advocates who've come to London and set up some form of presence there. London and Singapore are the two jurisdictions where Indian advocates and law firms seem most comfortable arguing cases, and there's plenty of activity in both.

PS: Is there a straightforward case you would make to an Indian company today for choosing London over Singapore or vice versa?

NP: I try not to advise companies anymore, so that's no longer my job. London or Singapore, you don't really need to worry about whether one of them is more effective than the other because they're both effective. Now, of course, depending on who the parties are and what the contract is and where the centre of gravity of the contract is, London and Singapore are comparable in many ways, but they're a long way apart. This is one reason Singapore is so successful: it's a great centre for Asian business, investment into Asia and intra-Asia business. London is still a great global centre for arbitration. It's still the most popular seat in many surveys, so it's still highly relevant. From an India perspective, when you look west, if you have an India-US transaction or India-Latin America transaction, you're going to gravitate towards London just as a matter of the map.

PS: You've worked on technology, energy and financial services disputes. Which of these sectors is generating the most India-linked arbitration activity right now? Do you see the nature of disputes also changing with the geopolitical situation?

NP: Definitely. Different sectors come and go over a career. Construction is ever-present; it drives a lot of arbitration practice across markets and India is no exception. Telecom disputes were all the rage at one point, as the market expanded and then consolidated; that's died down somewhat. Pharma disputes are quite prevalent right now. Tech remains a significant driver, depending on the wider sector. Energy - oil, gas and power- continues to generate a lot of disputes in India specifically. Interestingly, in Western Europe, oil and gas disputes are declining while solar and wind power disputes are rising. India has plenty of solar and wind investment too, but there are still many traditional oil, gas and power-related disputes here.

PS: While talking about international arbitration, do you see a lot of movement towards the UAE market now?

NP: Yes and those centres matter. DIFC, ADGM and the regional centres are significant, but you also see plenty of arbitration from the traditional global institutions being seated in the Gulf now. It's grown considerably. Geography plays a role and you can tell by how the airlines configure their routes; arbitrators tend to gravitate to the same hubs as their arbitrations. There's been substantial inbound investment, especially from India, with real connectivity between India and the Gulf on various projects. Some jurisdictions have also become less accessible for geopolitical reasons. Like a lot of Russia-related disputes that used to go to London are now going to the UAE, some to Hong Kong, some to Singapore. I'm sure some will eventually come to India too.

PS:  Where do you see AI making the biggest impact in the international arbitration space?

NP: It's still some way off for the big international disputes, though it'll happen sooner than any of us think. It's already having an impact at the lower end. As an arbitrator, what I see now is AI use by counsel; law firms are investing in it and using it, in part because their clients are asking them to. You see a degree of AI use in submissions, which is usually a good thing, though it sometimes produces unhelpful results - hallucinations, for instance.

On the arbitrator side, my own experience is that we're not early adopters. We tend to be a bit older and we're not typically within law firms with sophisticated, off-the-shelf AI products. A number of institutions are currently looking at how arbitrators should use AI and what the best use cases are. Right now, I don't see much pressure from parties on arbitrators specifically to use AI; they seem fairly agnostic, so long as we're efficient and give them a good decision. There will certainly be uses for arbitrators in due course, but we won't be at the frontier of AI adoption.