This interview has been published by Isam Kabir andThe Super Lawyer team.
Dr Kabir Duggal is a Senior International Arbitration Advisor in Arnold and Porter’s New York office focusing on international investment arbitration, international commercial arbitration, and public international law matters, He is a graduate of the University of Mumbai (Gold Medal), University of Oxford (DHL-Times of India Scholar), NYU School of Law (Hauser Global Scholar), Leiden Law School (2018 CEPANI Academic Prize), and is currently pursuing an SJD Degree from Harvard Law School.
1. Your accolades and achievements are known to the world, the career trajectory you have witnessed is one everyone dreams of but only a few achieve apart from all these. What is something the media or the world at large doesn’t know about you?
I am delighted to be here. And very grateful for the kind words. I think two things that people don’t realise, and this is true for everybody, is that we need to be a little more sensitive and give ourselves a little more of a break. Second, there is a lot of hard/smart work behind the scenes but there is going to be a fair bit of failures. For every ten things you do, nine times the answers will be a ‘NO’ but the tenth answer might be a yes! So, you need to keep trying. Keep the good fight on!
Further, you need a little bit of the right time and right place and so we must not take for granted the opportunities. In India, in particular, there is so much talent. You need the opportunity to channel it and that sometimes is not fully within your control. But always try and grab opportunities whenever you can. CaRPE dIEM.
2. Let’s start from the beginning: why law out all the career choices available?
I got into law, unlike a lot of people today. Most people today get into law right after high school. I did not. I did the three-year course after I had an undergraduate degree. The decision to enter law was not one that I had taken lightly. This is what I encourage everyone to do: think about your skill set, think about things that make you happy and try to find a career that combines both of these. So I realised that I like speaking, debating, writing and I thought that that skill set fills itself nicely with the legal profession. When I got into law school, I realised – this is fun!
3.In your academic trajectory, right from GLC to Harvard, routing through NALSAR, NYU, Oxford, Leiden, you have been denoted as a scholar, rightfully so, what about academia or research kept you going?
As noted above, my decision to get into the law was a conscious choice. So I got into something I enjoyed, I mean no one is compelling me to do all this. I do it because I enjoy the process–getting to read things that are fun, getting to talk to people who are very smart. Different people can look at the same thing very differently. I think in Jain philosophy, it is the Anekantavada philosophy, where the same thing can be understood in so many different ways. I do feel particularly privileged to have been affiliated with some of the best universities and study with the best minds.
4. How has your experience before venturing into arbitration i.e as Judicial Clerk, Honorable Justice Sujata Manohar, Consultant, Development Research Group – At The World Bank Group, Legal Consultant To The Child Protection Unit – Unicef has shaped you and can you share an experience or two?
Justice Sujata Manohar is a pioneer, a truly remarkable person. She was able to study law at a time when women did not have equal opportunities (and this is true all over the world). She became a Supreme Court Judge but her humanity and compassion made her stand out. I look at her as a mentor and a role model even today. And if I can become half the person that she is, I will consider that a success.
My interest when I got into higher education was in the areas of public international law and in human rights. And that’s where UNICEF and the World Bank came in. And both of them were very different but very amazing experiences which are really hard to come by. You really do feel quite privileged to have had those opportunities. UNICEF began as an unpaid internship. It started off that way and became a two and a half year stint. In fact, they invited me to come back after my masters at Oxford and before I started at NYU.
While I was at NYU, the World Bank Group offered me a consultancy and that is how that position happened. Again another fascinating experience.
They were very different areas of law. One was looking at child rights and child protection while the other was looking at socio-economic rights in the developing world. This experience has been pretty remarkable because it exposed me to a wide range of areas within international law.
5. One of the most interesting observations we have noticed is you have kept human rights in the centre of your academics, what inspired the shift to arbitration?
My interest has always been in public international law. International arbitration, particularly investor-state arbitration, allows me to pursue my interest in public international law and human rights because the cases often involve an intersection between several areas of public international law. But, my interest in human rights still continues. I am part of a team that has created a global non-profit to increase access for arbitration lawyers from all over the world (https://letsgetrealarbitration.org/) and I work as a consultant for the UN office for Least Developed Countries.
6. How has your time at Curtis, Mallet-Prevost, Colt and Mosle LLP, Baker McKenzie, honed you in the arbitrator you’re today?
It’s been a very exciting journey to work on some of the largest and most prominent disputes. Every firm has a different culture. Every firm has a different way of looking at things. In the investor-state context, in particular, some firms focus more on state work, some focus more on investor work, some do a hybrid of both. So getting exposed to different people, different ways of doing things, I think challenges you and helps you appreciate things in a variety of different ways. Indeed, you can get very comfortable doing the same thing the same way every day. I think having something to challenge you helps you learn a different skill, a different way of doing things.
7. Can you tell us about your PhD thesis on Investor-State Arbitration at Harvard as well as Leiden?
Investor-State Arbitrations, sometimes you call Investment Arbitration, is a specialised form of International Arbitration. This is arbitration between a foreign investor and a sovereign state. Your Respondent is always going to be a Country or a State and the Claimant is a foreign investor. Here the foreign investor alleges violations of international law that often arise out of investment treaties or (domestic) foreign investment laws. And the dispute is resolved before an arbitral tribunal. Some examples in India are like Vodafone which brought its case against India arising out of a tax measure. This was under the UK-India investment agreement. That would be one example. These are cases against the sovereign so by nature, they tend to be highly political and long-drawn. It’s a lot of fun but there is a lot at stake.
At Leiden, my focus was on evidentiary standards in investor-state arbitration. This is a fascinating topic because international arbitration seeks to avoid detailed rules of procedure and evidence. However, a tribunal is still bound by certain evidentiary rules. The process was to identify what principles of evidence could be derived from the general practice of states and from public international law that would bind tribunals. I was very privileged to receive the Academic Prize from the Belgian Arbitration Center for my research.
My current research at Harvard looks at the intersection of human rights law and investor-state arbitration. Investment disputes often tend to implicate human rights. For example, an investor may allege that a state policy implicates the right to fair and equitable treatment but the state may seek to justify its actions on human rights considerations. My research seeks to unpack this tension between investor protection and human rights.
8. You have been teaching at Columbia for nearly a decade now, and have taught at Madrid, Georgetown University, India, Harvard to name a few that pulled you towards it as given your qualifications you could have easily taken a corporate job or started practising given that you are qualified to practice in New York (U.S.), Washington D.C. (U.S.), England & Wales (Solicitor), Maharashtra and Goa (India)?
I have always wanted to teach. As of this year, I have completed twelve years of teaching. Indeed, when I had started some of the students at Columbia University were older than I was. I enjoy it. It is something that I enjoy. I am a big believer in people doing things that make them happy. If something makes you happy, go for it.
9. You are a part of the Rising Arbitrators executive board, Consultant for the United Nations Office of the High Representative for Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (UN-OHRLLS), you have published over 40 articles and spoken at over 300 arbitration events across the globe, what inspires these endeavours?
Thank you, All these are things that are fun, I enjoy them. I like writing, speaking, and meeting new people. When you do something you enjoy, it does not seem like work. Some of these activities are also opportunities to make a difference and so I feel particularly privileged to have the opportunity to do so.
10. You started your journey as a law student in 2001, in GLC you have been part of this fraternity for 20 years now. What has changed for you in this passage of time?
When I went to law school there was only one national law school. NALSAR & NUJS had started and they still hadn’t had even the first set of students who had graduated. If we look at the legal landscape in India today it is very competitive. With the proliferation of law schools and people with ambition, it is a rather different reality.
Indeed, when I was in law school, there was some amount of stigma in studying law- “You can’t do anything. So, you’re doing the law.” So, I think that would be the biggest change. There’s a lot more dynamism. The law students are a lot more dynamic and are a lot more willing to be enterprising and that’s a good thing. We are seeing the market evolve as well– for example, we are seeing greater think-tanks, non-profits, academic avenues in India. All this is great for our profession. When I graduated, legal education was still in the nascent stages. I look at it now though, you have people who are very thoughtful scholars today; people who are really engaged. That’s good for India at large. The profession is in better shape than when I was in it. So I look at it as a good thing. It’s becoming quite similar to the American model- very competitive, but the people who get into big law, so to speak, have a very steady career path set for them.
11. How often have you been the only Indian in the room? Do you think silent racism towards Indians or Asians still persists or they’re still underrepresented in board rooms and classes?
I think this is a great question and is worth addressing. Does racism exist? The answer is yes. Does racism exist against Indians in the law field in the west? I think the answer to that is also yes. It may not always be direct or overt but it does exist. If we look at the United States, Indian Americans have done extremely well in business, science, technology, engineering. That has still not been the case for the legal profession. But hopefully, things will change and we should always strive to do two things. First, we should always be aware of the privileged position that we are in and we should try, whenever we see bad things happening, to stop it. We’re lawyers and we are in a privileged position to stand up to injustice. There are people who don’t have that, both in India and in the US, and it’s important for us to stand up for injustice (this can often be taking a stand against innocuous sexist or offensive stereotypes). The second point I would just mention is, last year in the US (although this is not unique to just the US), you looked at violence against African Americans and then Asian Americans, which really got us to reflect on the inequities that exist even in our profession. We, therefore, launched an initiative called REAL- Racial Equality Arbitration Lawyers and one of our goals there is to advocate and give access opportunities to people who otherwise don’t get it. We give a lot of scholarships to attend arbitration events which can often be very expensive. I would encourage the viewers to look at this if they’re interested in arbitration, these are put on our LinkedIn Page: https://www.linkedin.com/company/real-racial-equality-for-arbitration-lawyers. We are free to join the organization so if you are interested, consider signing up.
12. What are a few pieces of advice you’d like to give to students or lawyers who want to pursue foreign education through scholarships?
First, You need to start the planning process early. There will be an academic component and there will be an extracurricular component, both are important. Make sure you’re not doing one at the cost of the other. Sometimes you see people who have done like 15 moots, leadership positions in many organizations but grades are mediocre or you see people who’ve only focused on grades and done nothing else. So my suggestion is to find a good balance.
Second, have a nice consistent narrative to tell. Can your narrative change? Yes, it can. Tell it in a manner that’s interesting, that’s personable, but reflect a little bit on your story.
Third, pay particular attention to scholarships and see the requirements that they have as well as the deadlines.
Fourth, access your financial situation and make an individual assessment of whether or not it makes sense for them to pursue higher education if you have to take out a loan. Be prepared for the best and worst-case situation. Jobs outside India are few and far between and highly competitive.
Finally, consider the visa reality. This is probably one of the areas that are not within your control. This is increasingly becoming harder and harder, as countries are restricting immigration. So when you’re doing your pros and cons, you really need to factor in this reality.
13. It is known to us that apart from Hindi and English, you are fond of Urdu and have learned Spanish and Sanskrit as well, what are some of your favourite reads?
I think with time my interest has been becoming greater and greater in reading books on history. And my specific focus, not exclusive, but the specific focus has been on reading about different aspects of Indian history. When you don’t live in India this is one way to remain connected with your heritage. I am currently reading the Age of Wrath by Abraham Early that discusses medieval India (even though the book focuses on the Delhi Sultanate there is a very interesting discussion on the Vijayanagara empire as well).
14. In your opinion, how will pandemic change the way we perceive education? Do you think it has achieved the philosophy of the world being a big classroom?
The pandemic has definitely caused a lot of suffering. I will acknowledge that at the outset. Having said that, some good things have come out of it. And one good thing that has come out has been embracing technology. There is something to be said for in-person meetings but there’s something to be said for having opportunities like this where you can talk to people across time zones, across different countries. So, hopefully, post-pandemic, we keep some of this alive. The world has become a lot closer.
15. How does it feel to be a source of inspiration for so many people?
I am very grateful to hear this and am touched that people feel inspired. I believe that my journey has still just only started 🙂
16. What would be your parting advice to students and everyone dares to dream big?
Have a plan and go for it. Dream big and also be realistic. But there’s nothing wrong with aspiring. Take advantage of avenues around you. Avenues like Law Sikho didn’t exist when I was in Law School. Take advantage and be positive, failures will happen and that’s fine. To quote Kelly Clarkson- ‘What doesn’t kill you, probably makes you stronger. Therefore, take charge of your career.