Mr Ashutosh Kumar is Principal at AnchayilKumar — a boutique law firm based in Delhi. He is qualified to practice in India and in England and Wales. He holds a BA.LLB. (Hons.) degree from the National Law School of India University, Bengaluru, and an LLM degree from Columbia University, New York.
He has around fourteen years of experience in dispute resolution, advisory work, and transactional work. He specialises in complex arbitrations, shareholder disputes, regulatory disputes, and other commercial disputes. He also assists clients with regulatory queries, contract negotiations, and general legal advice.
He previously worked at Clifford Chance (a leading international law firm), Amarchand Mangaldas and S&R Associates. He has acted as a sole arbitrator in multiple commercial arbitrations pursuant to appointments by the Delhi High Court. He is also empanelled as an arbitrator with the Delhi International Arbitration Centre. He teaches arbitration law, contract law, and investment treaty law as a guest lecturer.
1. Your legal career spans around fourteen years with experience in dispute resolution, advisory work, and transactional work. Could you elaborate on how you balance these different facets of your practice and what challenges you face in doing so?
Balancing disputes work, advisory work and transactional work is indeed difficult. The longer you practise law, the more there is a tendency to specialise in and focus on a certain type of work. To pursue multiple types of work, one must take on diverse assignments, be willing to step outside one’s comfort zone and learn new things constantly. This is the crux of my approach.
The biggest challenge in pursuing multiple types of work is to remain in touch with the latest developments in the relevant field. Another major challenge is to appreciate the differences in client expectations when it comes to disputes work, advisory work and transactional work.
2. You specialise in complex arbitrations, shareholder disputes, regulatory disputes, and other commercial disputes. Can you walk us through a particularly challenging case in one of these areas and how you strategized to achieve a favourable outcome for your client?
This case was a petition under Section 34 of the Arbitration and Conciliation Act, 1996, which challenged an award passed in an international commercial arbitration. Regrettably, the issue of damages had not been properly discussed or decided by the arbitrator. In fact, the arbitrator had awarded (unliquidated) damages without any proof of actual loss or any quantification of such loss. In short, it was a windfall for the party concerned.
Despite this glaring defect in the award, this was a tough case because the award was passed in an international commercial arbitration and therefore, could not be challenged on the ground of patent illegality. The challenge would have to rely on the ground of public policy — which presents an exceedingly high threshold. That apart, challenging an award before the Delhi High Court is a difficult task because of the high bar set by courts in setting aside arbitral awards.
In light of this, I devised and adopted a prudent and cautious strategy. I first reviewed the award objectively and advised the client to limit the challenge to certain claims only — that too based on a handful of compelling arguments which did not delve into factual issues at all. I further advised the client to promptly honour the award to the extent that it was not being challenged. This strategy aided the client since it restricted the client’s interest liability on a substantial portion of the award before such liability could escalate to an unreasonable amount. In addition, this strategy demonstrated the bona fides of the challenge which helped us pursue the challenge before the Delhi High Court. While the outcome of this case is awaited, this strategy has helped the client manage its liability and find firm footing before the Delhi High Court.
3. Can you discuss the process and considerations involved when acting as a sole arbitrator in commercial arbitrations, especially those appointed by the Delhi High Court? How do you ensure impartiality and fairness in your decisions?
As a sole arbitrator, there is a lot more pressure on you because you do not have the benefit of consulting co-arbitrators. So, you must work much harder to ensure that you are fully prepared for hearings, understand the positions of the parties, and avoid procedural slip-ups that could create potential grounds for challenge.
The process itself is essentially the same. The focus is on completing pleadings as fast as possible and then holding the parties to a time-bound cross-examination and oral arguments. The most important step here is to provide adequate and proximate dates to the parties. As an arbitrator, if you do not give adequate and proximate dates to the parties, then you can easily end up frustrating the entire process. This is because cross-examination or oral arguments cannot happen effectively over sessions held several days or weeks apart. That apart, you need to push the parties to manage their time efficiently.
For example, instead of letting cross-examination proceed as per the whims of the parties, you could specify the total time allocated for cross-examination by a party at the outset itself — with a provision for further time being granted only upon sufficient cause being shown. This approach puts the parties on notice that you are keen to ensure efficiency and do not intend to let cross-examination drag on for no good reason. Similarly, it can be useful to allocate the time for final arguments in advance and insist on parties filing skeleton submissions in advance. As a sole arbitrator, the onus is on you to proactively push the parties to be efficient and timely because you do not have the benefit of co-arbitrators who will advocate along with you for that kind of diligence.
If you are fortunate to be appointed as an arbitrator by a court, then you must appreciate that an incredible amount of trust has been reposed in you. The court expects you to provide a high-quality professional service to the parties which justifies its faith in you. Thus, you must work even harder to ensure that your work upholds the reputation and standing of the court along with your own professional reputation.
Lastly, impartiality and fairness are a given; you cannot decide a case without these qualities. It is simply non-negotiable. You must ensure that both parties receive an equal and fair chance to present their case without turning the process itself into a farce. That said, you cannot let any party take the process for a ride. You must draw the line clearly somewhere, and I prefer the instrument of costs to do this. So, for example, if a party amends its claims or counterclaims belatedly without good justification, then I still allow this, but I also award costs to the other party. The message to the parties is clear: while a flexible and fair process is paramount, this is not a free-for-all where a party can do whatever it feels like, and the arbitrator will meekly allow it.
4. What opportunities and key challenges do you foresee for young lawyers with the establishment of the Arbitration Bar of India?
The Arbitration Bar of India is a promising idea and is headed by some of the most well-regarded arbitration lawyers in the country. My sincere hope is that it will help individual practitioners, in particular, become better arbitration lawyers. Frankly speaking, when it comes to law firms — particularly the larger national law firms — we do not have a lack of knowledge or ability in relation to arbitration. The lawyers working here are fortunate to get a lot of exposure to domestic and international arbitration and can learn from senior colleagues with decades of experience and leading foreign practitioners. However, when it comes to independent practitioners, they have not had these benefits and naturally struggle to develop expertise in arbitration. I hope that the Arbitration Bar of India will help address this shortcoming.
So far, all attempts at connecting with individual practitioners have been largely unsuccessful since arbitral bodies and institutions fail to move beyond law firms — especially the larger national law firms. Therefore, the challenge for the Arbitration Bar of India, as I see it, is: Will it go beyond the law firms — the arbitration elite so as to speak — and actually reach the entirety of the profession?
5. Reflecting on your LLM experience at Columbia University, how did this advanced degree contribute to your understanding and practice of international law? Are there any specific courses or professors that had a lasting impact on your career?
I greatly value the time I spent at Columbia University. It exposed me to a way of studying the law that I feel is largely missing in India. This approach is focussed on understanding key principles and concepts rather than specific sections of statutes and corresponding case law. You understand these concepts, critique these concepts exhaustively, and see the underlying issues from all sides. Naturally, this was a great learning experience for me.
In terms of improving my understanding of international law, my time at Columbia University allowed me to explore investment treaty law, international arbitration and private international law more closely. But more than that, it gave me the understanding that when faced with a dispute with an international dimension, one needs to understand how different systems of laws will apply and interact with each other.
In terms of specific courses, two courses that really helped me were — Professor Anthea Roberts’ course on Investment Treaty Law and Professor Rahim Moloo’s course on commercial arbitration. The course on Investment Treaty Law provided a vital foundation in the subject and I soon relied on what I had learned while assisting the Additional Solicitor General of India in the Vodafone BIT anti-arbitration injunction matter before the Delhi High Court. The course on commercial arbitration helped me broaden my understanding of arbitration practice and international arbitration principles.
6. What are the limitations of the IBA Guidelines on Conflicts of Interest that practitioners should be aware of?
In my view, two limitations of the IBA Guidelines are — first, that they are mistakenly treated as exhaustive, and second, that they lack social and cultural context. The IBA Guidelines identify certain relationships that may give rise to conflicts of interest — but they do not claim to be exhaustive in nature. There can be — and indeed are — other relationships that also constitute serious conflicts of interest. Yet, most lawyers are unable to see beyond the text of the IBA Guidelines. That apart, the IBA Guidelines are generic in nature and lack cultural and social context. In the absence of such context, the IBA Guidelines fail to identify relationships born out of specific cultural and social contexts which constitute a conflict of interest. For example, the IBA Guidelines refer to persons who work/have worked in the same law firm but do not talk about persons who work/have worked in the same law chamber. In India, it is common for a junior lawyer to work in the law chambers of a senior lawyer for several years and develop close bonds with other junior lawyers. Arguably, this relationship is also a potential conflict of interest — but the IBA Guidelines are silent on this type of relationship.
7. As someone who has worked in both national and international firms, what are the primary differences in legal strategy and client expectations between these two settings?
There is not much of a difference when it comes to legal strategy or client expectations. The top national law firms in India and the top international law firms set very high standards when it comes to legal strategy and client expectations. Where the differences lie is in the way the work is executed and in the way that the training of lawyers takes place.
To be frank, the top international law firms invest much more time, money, and effort into training lawyers. I remember completing hours upon hours of training covering every aspect from using software to structuring transactions before I even started doing actual billable work. This training was given by experts — including Partners or Senior Associates who had spared their valuable time to train young lawyers.
That apart, the kind of infrastructure provided to lawyers sets international law firms apart. Typically, you have access to well-trained secretaries, document production specialists, and knowledge management teams with lots of experience and knowledge. These facilities ensure that a lawyer working on an assignment is given the best possible assistance to complete his/her work efficiently and without errors.
8. What trends or challenges do you foresee in the future of arbitration, and how should legal professionals prepare to address these?
In my view, arbitration in India is going through a period of great unrest and dissatisfaction. Clients are increasingly dissatisfied because of the high costs involved; arbitration was supposed to be cost effective, but it has become unfathomably expensive. It is not uncommon to see arbitrator fees and legal fees cross several crores of rupees in larger cases. Clients are also unhappy because of the inordinate time being taken to decide disputes; arbitration was supposed to be fast and efficient, but it has become almost unbearably slow. Some arbitrations go on for more than 4-5 years for no good reason.
Also, arbitration was supposed to provide high-quality adjudication to parties because the parties choose an adjudicator voluntarily, but the overall quality of awards in India have been very poor — to say the least. The courts have upheld many of these poor quality awards reluctantly perhaps to ensure a degree of finality to arbitration. However, the entire system of arbitration reflects poorly on India’s legal system and legal profession. The major challenge now is for arbitration to win back the trust of clients and redeem itself. It will not be an easy task — but stricter measures to improve the efficiency of arbitration could help immensely.
