Ben Giaretta
Ben Giaretta
Apprentice Lawyer

There is a generational change taking place in Indian arbitration: Ben Giaretta, Mishcon de Reya

More and more, younger Indian lawyers are working in different parts of the world

Gaurav Kumar

Ben Giaretta is a Partner in the Dispute Resolution department, Mishcon de Reya LLP. In this interview with Bar & Bench, he outlines the skills that all arbitration counsel should possess, shares advice on how to use LinkedIn, and also discusses the ways in which India could build its' arbitral practice.

What do you think are the most important skills that one requires as an arbitration practitioner?

This is a difficult question to answer because there can be many different facets to one's career as an arbitration practitioner, but for me two qualities that stand out are an ability to have an open mind about things; and determination.

It's important to have an open mind because arbitration requires you to address so many different things – different cultures, different industries, different ways of doing things. You have to be able to adapt to each situation that you find yourself in.

This is one of the key ways in which arbitration differs from national court litigation.

While there is a fair amount of variety in litigation, there is also continuity from one case to the next (the same courtrooms, the same judges, the same opponents, etc.). But with arbitration, each case may look radically different and you need to be able to take that on board.

Determination is vital, too, because I often find that it is not through genius that the best ideas arise, but through hard work (more perspiration than inspiration!). You have to be able to look at things from every angle, and work through all the implications of every point.

For example, when you analyze a filing made by the other side, you need to think very carefully about what is being said, in every single line. It is only by doing that analysis that you can build up a proper response.

What are the ways in which arbitration practitioners have adapted themselves to the new normal, post COVID-19?

I've been very impressed with the way that arbitration practitioners have adapted. We've gone from a work pattern centred around offices and hearing-rooms, to a way of working that involves connecting up with everyone via email, phone and video.

We'll look back on this time in the future and be amazed at how everything was transformed virtually overnight. I've also been struck by the way that arbitration practitioners have used the time to reach out to people across the world. I think I've spoken to more people in more locations during lockdown than at any time when I was in the office!

But then I've reminded myself that arbitration has always been a global community, and it has always been easy to link up with people across the world.

We've just never done it in this way before.

Where do you think India stands, in terms of its arbitration regime? What would be two areas in which you would recommend India to invest in to build its arbitration practice?

India has always had an outstanding legal profession, which is a key part of building a successful arbitration infrastructure. I can't think of anywhere else in the world that I've been where such a high proportion of the lawyers can so easily recite the latest case law relating to arbitration, and the relevant parts of the arbitration law!

But what I think India could do more of is internationalize its arbitration regime and profession.

That's a huge generalization, I know – India has of course produce outstanding international jurists, such as Fali Nariman, and there are many Indian lawyers that I know who are equally at home in London, Singapore and New York, as they are in Mumbai, Bangalore or New Delhi.

But again and again I see the domestic arbitration scene in India outweigh the international. Changes to the Arbitration Act, for example, seem more often to be about domestic concerns than international; and arbitration commentary from India appears to be more about case law from the Indian courts than about developments elsewhere.

I think there is a generational change happening, however. Older arbitration lawyers may have spent most of their careers within India, but now, more and more, younger Indian lawyers are working in different parts of the world, and gaining qualifications and experience elsewhere.

And in time, hopefully, international arbitration (in contrast to domestic arbitration) will become even more prominent in India.

To support this, Parliament might consider whether it would be appropriate to have two separate arbitration laws, one applying to domestic arbitration and the other to international arbitration.

Allowing the two to develop along separate tracks might enable both to thrive.

We have noticed that you are quite active on social media platforms such as LinkedIn. Does networking through these platforms have a significant impact for law students? How can they be optimally utilized?

I think it's vitally important to build connections in arbitration. Using social media platforms is just one way of doing this. Other ways include attending conferences, participating in moots and joining organizations such as the Chartered Institute of Arbitrators (a disclosure here: I'm the Chair of the London Branch of the Chartered Institute of Arbitrators).

But just to focus on LinkedIn, I recommend that law students get into the habit of posting things regularly. It's often only after you have exhausted the obvious topics for posts but still have to write something, that you hit upon the most interesting thought or angle for a post.

It's also vitally important to engage in what other people put onto the platform. LinkedIn is a way of building a network, not just an opportunity to talk about yourself. If you show genuine interest in what other people are doing and saying, you are more likely to have people show equal interest in you – and thereby you build real connections.

What do you advise to the young lawyers who wish to pursue arbitration in the EU region?

Moving to another country to live and work is a big step. I know this from having done it several times in my life (I've lived in Singapore, Greece, South Africa and Malawi, as well as in the UK).

Sometimes it's simply not possible to move, for example because of family circumstances. But if you get the opportunity, you should grab it with both hands.

That opportunity could be big or small: it could be a job at a prestigious, international law firm; it could be a temporary contract at an arbitration institution; it could be an internship somewhere. All of this is valuable experience, and may lead on to other opportunities.

So if you're particularly set on spending time in a EU country, look for any opening you can. It can often be a springboard to something else; or if it doesn't turn out that way, you will still have gained valuable experience that will advance your development as an international arbitration lawyer and will make you stand out among your peers.

(Gaurav Kumar is a student at Dr. Ram Manohar Lohiya National Law University, Lucknow)

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