About Prof. Dr. Rab:

Prof. (Dr.) Ajar Rab is a Partner at ANR LAW LLP, Dehradun, and an arbitrator. With over 11 years of experience, his practice areas include international arbitration, corporate transactions, and commercial litigation. He handles several arbitrations and commercial litigations relating to energy disputes, EPC contracts, and infrastructure disputes, amongst others. He has previously worked with ministries, government bodies, and policy institutes. He is also an International Policy Consultant at Lexidale.

Dr. Rab is a ‘Professor of Practice’ at the School of Law, University of Petroleum & Energy Studies, Dehradun, a Distinguished Visiting Professor at the National University of Juridical Sciences (NUJS), Kolkata, Visiting Professor at the National Law School of India University (NLSIU), Bangalore, and visiting faculty in other law schools of the country. He is a nominated member of the Board of Studies, at Nirma University as well as Tamil Nadu National Law University. He frequently trains executives and legal teams of multi-national corporations, and civil servants, and teaches courses on Negotiation and Drafting of Commercial Documents, Litigation Strategy, and International Commercial Arbitration at various law universities in India. He is also a member of several arbitration institutes across the world, a member on the advisory board as well as on the peer-review board of several academic journals.

He has authored books on ‘Interim Measures in International Commercial Arbitration: A Comparative Review’ (Kluwer Law International) and ‘Real Estate (Regulation and Development) Act, 2016’ (EBC) and Drafting of Contracts (EBC). He has published several academic papers in leading national and international journals and his paper ‘Defining the Contours of the Public Policy Exception – A New Test for Arbitrability in India’ was cited by a Full Bench of the Supreme Court of India in Vidya Drolia and Others v. Durga Trading Corporation 2020 SCC OnLine SC 108.

Interview:

1) Please give our readers a little insight into yourself and your career in ADR.

I am a Partner at ANR LAW LLP, Dehradun. My practice areas include international arbitration, corporate transactions, and commercial litigation where I have handled several arbitrations and commercial litigations relating to energy disputes, EPC contracts, corporate transactions, debt recovery, insolvency and infrastructure disputes. I have also had the privilege of working with ministries, government bodies, and policy institutes and representing several reputed clients in various domestic and international arbitrations. One of my passions is teaching, and I have been lucky to teach courses on arbitration and contracts in various national law schools and other law universities and train MNCs executives, legal teams and engineers in ADR methods.

2) What inclined you towards arbitration?

During my masters at Bucerius Law School, Germany, I was taught international commercial arbitration by Prof. Clifford Larsen and international litigation by Prof. Dr. Stefan Kroll. I think it was their clarity of instruction and methodology that really piqued my interest in arbitration. The clarity with which Prof. Kroll explains the conflict of laws and its applicability to arbitration is inspiring. He makes one want to learn more, and with the same amount of clarity.

3) What are your thoughts on the attempts to make India a preferred global arbitration hub through the changes introduced by the amendments of the Arbitration and Conciliation Act? Are these changes effective and in the right direction?

India has made rapid progress in arbitration jurisprudence. I often say that India’s arbitration story is yet to begin. I believe India’s time as a global arbitration hub is 5-10 years from now when the new generation, such as yourselves, will join the bar and bench. It was only a couple of years before the pandemic that arbitration conferences and panels had picked up steam and garnered interest amongst the students in law schools.

Then there was a pandemic of webinars. Today, nearly 8 out of 10 students are interested in arbitration. There are numerous blogs, papers and discussions happening in India. Ultimately, they will lead to a change in jurisprudence which will align more with international practice. Various international arbitration moots have tremendously contributed to creating a more enlightened group of people in colleges and courts with a clear understanding of the arbitral process.

I think you will catch from my previous response that the amendments are not entirely in line with the fundamental principles of arbitration. The amendments are more knee-jerk reactions without a holistic assessment of their impact on other provisions. For example, the recent amendment about fraud and corruption as a ground to set aside the award requires the production of evidence at the stage of setting aside proceedings. However, the 2015 amendment clearly states that the setting aside application can only be based on the arbitral record. Similarly, while the extra-territorial application has been extended to interim measures by courts, there is no extra-territorial application for enforcement of interim measures granted by foreign seated tribunals. India has somehow completely ignored the 2006 revisions to the UNCITRAL Model Law even though India is supposed to be a jurisdiction that follows the Model Law.

Another aspect I believe has slowed India’s growth story is the language of Section 89 of the Code of Civil Procedure which treats arbitration as a settlement mechanism instead of an adjudicatory mechanism. I believe specialised and focused sessions with judges, especially in the lower courts, would significantly boost arbitration jurisprudence, which aligns more with the intention of the Model Law and international arbitration practice.

4) International Chambers of Commerce has embraced Artificial Intelligence in collaboration with Jus Mundi for its Digital Library. What are your thoughts about it? How do you think AI will shape the future of Arbitration?

Not only arbitration, but I think all forms of litigation will immensely benefit from AI. When I was in law school, online research databases such as Westlaw, SCC and Manupatra only recently caught steam. We were still researching from books. Today, interns do not even touch books. Technology has transformed research.

Similarly, AI was already being used for arbitrator profiling. The ICC embracing AI will only add to creating a more efficient and quicker resolution of disputes. For example, the use of AI in the production of documents can substantially overhaul the entire process of determining relevance and materiality. However, the accuracy of AI would always be up for a challenge and that is where the industry has to align with legal requirements.

5) What are your thoughts on the rise of third-party funding in Commercial Arbitration?

Third-party funding is undoubtedly a boon for providing access to arbitration for claimants who have already suffered at the hands of the opposite party and do not even have the funds to file a claim. However, third-party funding also brings with it challenges regarding confidentiality of proceedings, disclosure requirements etc. However, if I remember correctly, there was some data about third-party funding not being used as often as was anticipated. Parties are hesitant to let a third-party drive their arbitration and strategy.

There also exists a problem of further litigation if the claimant, after winning the arbitration, refuses to pay the funder. This problem assumes more significance in jurisdictions such as India, where a funding arrangement may be considered champerty and consequently, illegal.

6) What advice would you like to give students who have a penchant for ADR? What are the most viable steps an Indian student of law can follow to pursue a career in ADR?

Every university I visit or internship application I receive has the magical words ‘a career in arbitration’ or a ‘career in dispute resolution’. To my mind, and I may be wrong, a career in arbitration is equivalent to saying a ‘career in a procedural law’ and ‘dispute resolution’ does not mean not going to courts. You see, parties pick arbitration for its flexibility of procedure and efficiency, as opposed to court litigation. That does not mean that substantive law such as the Indian Contract Act or the law of torts, or company law will change in court or in an arbitration proceeding. Students should focus on the clarity of concepts in substantive law first, then move to the clarity of procedure as envisaged by the CPC or Indian Evidence Act. Only when students understand what is applied in courts will they be able to fully appreciate what and why the same rules may not be followed in arbitration. I am saying that arbitration is not a creature in and of itself where students can ignore every other law and make a career. More importantly, an excellent legal practitioner has basic knowledge of most laws and specialises in one particular industry or practice area. Simply chasing a career in arbitration, is not the right approach, to my mind.

7) What International opportunities would you suggest to students in case they want to pursue International Commercial Arbitration for L.L.M or PhD?

I think this question has been asked so many times by any arbitration practitioner that one can almost create a standard form response to it. I think it’s vital to understand arbitration as a mechanism before jumping for a master’s or doctorate in it. One can only understand as much from moots or competitions, which are limited to specific issues. I think 2-3 years of experience in a litigation or arbitration chamber is a must before deciding whether to pursue higher education and specialise in a particular field.

There is a myth that pursuing a post-graduate degree in International Commercial Arbitration is the only way to enter the field. On the contrary, I know several highly reputed and skilled arbitration practitioners who have never pursued any specialisation in arbitration. To my mind, one pursues a postgraduate degree to learn more about a subject in which one is genuinely interested or a subject one is passionate to learn more about. Pursuing a postgraduate degree to make a career in something, just because the world is doing it, doesn’t make sense to me. You will never excel in anything that doesn’t inspire you to do better or learn more. One of the reasons I write pretty often about arbitration issues is because it makes me think, and I enjoy it. In fact, my colleagues often make fun of me, saying I would have finished something in minutes if it was arbitration, but take much longer in any other area of law.

8) You have also been associated with the prestigious Willem C. Vis International Commercial Arbitration Moot and 2nd Asia Pacific Vis Pre Moot. What would be your advice to the ones who are preparing for one of these moots currently?

My advice to current or even future mooters would be to realise that the vis moot problem or any moot problem is never created in a vacuum. Every moot intends to educate the students about what an actual case would be like and how one needs to think like a practitioner. Therefore, you cannot ignore the parties’ business aspects or commercial realities. For example, an objection on jurisdiction is not made only based on research. Most often than not, it is part of legal strategy. So students should also think about how the party will benefit if parties are forced to go to another forum for adjudication. What are the pros and cons? That will determine the prejudice to a party.

Moot problems also help develop and address current issues in jurisprudence. The students are also supposed to think of creative and logical solutions which may add to the jurisprudence. If students were to forget that it is a competition and think about how they would behave before an actual tribunal in the shoes of a client whose millions are at stake, the performance of the mooters would change tremendously.

Lastly, the obsession with authority and case law is slightly misplaced. Yes, authorities are essential, but they are not the facts of the present case. The arguments should revolve around the facts on the moot problem and should be supported by authorities, not the other way around. Students often argue that a position of law has been upheld in a case and hence, this case should be decided the same way. That, to my mind, is an incorrect approach to advocacy. Authorities support your logic and interpretation of the law, which is then to be applied in any case at hand.

[This interview was organised and conducted by Kaushiki Singh, an editor at Mapping ADR.]