The Amicus Interviews are meant for broader discussions on legal education, and the legal profession at the global level. Along with the legal research and law schools, these interviews are meant to bring across a slightly “macro” perspective on things.
Shreya Jain is a 2014 graduate of NLSIU, Bangalore who went on to complete an LL.M. from Harvard Law School in 2017. After the LL.M., Shreya worked at Cooley LLP as an International Arbitration Consultant for just over a year, and currently focuses on international commercial and investment treaty arbitration at SAM.
In this interview, I get Shreya to discuss some of the more practical aspects of a career in international commercial arbitration, the utility of an LL.M. in her own professional growth, what Indian law schools ought to do, and a whole lot more.
I know this is a terribly open ended question, but why do you think commercial arbitration is such a popular career aspiration for today’s law students?
I think there are a few reasons for this. A lot of students are interested in dispute resolution through law school – a lot of credit for this goes to the strong mooting, ADR culture etc. in law schools.
However, litigation isn’t every body’s cup of tea. One, on a systemic level, it can be quite frustrating to wait for years for a case to end. Often, the real fight in courts happens at the ad-interim stage or interim injunction stage. Getting to experience the full life cycle of a case—from the start till the final hearing can span a decade if not more. Unlike this, arbitrations move much faster.
This applies for domestic arbitrations too, but more so for international arbitrations which can finish in 1.5 – 2.5 years. This of course depends on the complexity of issues, number of arbitrators, etc. but that only makes an impact of a few months either way. This makes it more attractive to clients and practitioners. We see arbitration clauses being adopted in a majority of contracts.
At a practitioner level, I think it’s very attractive to be able to see a case end to end, even at a junior level. You’re fully committed to the case during this period, there is active strategizing that goes on at an every day level, and there is lots to learn.
Two, not everybody can afford to do litigation in counsel practice. A lot of international arbitrations happen end to end in law firms (including oral advocacy) – like at my firm (SAM). This makes it a more financially secure career option for students.
Three, I think international arbitration in particular has a bit of glamour associated with it. You work with different countries’ laws, there’s a fair bit of international travel for hearings, etc., and you get to observe and learn from foreign practitioners during hearings who’re involved as opposing counsel/tribunal members.
And in your case, what got you interested in this particular field?
I think all these factors played a part. I had done dispute resolution in India (including some commercial arbitrations) during my stint at CAM, Mumbai. That piqued my interest in this field further.
Further, I always had a keen interest in public international law and decided to pursue an LL.M. to build that further. A common way to practice international law is through international arbitrations (particularly investment treaty arbitrations) – that’s how I ventured into this field when I started working in New York. I did a good mix of both investment and commercial cases in New York, and continue to do that in my current practice at SAM, Mumbai.
Now that you have had some experience as an arbitration practitioner, how do you think law students can better utilise their time if they are looking for a career in arbitration?
I think the most important skill to develop as an arbitration practitioner (especially if you’re keen on international arbitrations) is excellent written advocacy skills. Unlike domestic litigation and arbitrations, international arbitration primarily focuses on written advocacy.
I think some avenues students could pursue to develop this skill are mooting and academic writing. This carries a lot of weight on the resume when applying for LL.M.s, boutique arbitration practices etc.
For instance, both the firms I’ve worked in (Cooley and my team at SAM) insist on writing samples before hiring for the international arbitration team. I think mooting in particular also helps develop argumentation and critical thinking skills—which are very important for practitioners. This only improves with practice, so it is better to start early.
You spent two years in India, focusing on corporate litigation and arbitration, and then a year in the US with a greater focus on arbitration – what are some of the more obvious differences in India and US-based arbitrations? I ask this from the point of view of a practitioner.
In the US, I didn’t do any US-based arbitrations as there were other domestic teams which specialized in those. My focus was international arbitrations, particularly investment treaty cases.
These were truly ‘international’ in a sense – we worked against counsels from different countries such as UK, Turkey, France, etc. The arbitrations were conducted under the aegis of different institutional rules such as ICSID, ICC, UNCITRAL etc. and seated in different jurisdictions (e.g. Washington DC, Paris, London, Geneva etc.).
So, I didn’t have an ‘American’ arbitration experience. In that sense, my work in India today is quite similar since I focus on international arbitrations here as well.
This differs significantly from domestic arbitrations in India. The latter is still heavily oriented to the litigation style. The cases progress at a slower pace, they are most often led by counsel and adjudged by tribunals comprising retired judges, and there is still a lot more focus on oral advocacy.
Even the written advocacy is akin to how one drafts pleadings in litigations (as opposed to international arbitrations, where the writing is more crisp and moot court-style). As these are ad-hoc arbitrations, they are often not run as professionally as international arbitrations, which are often managed by institutions such as SIAC, ICC, LCIA, etc and follow a strict schedule.
So, as a practitioner in international arbitrations, one needs to be very good at written advocacy and constantly engaged with the case.
In between these two phases, you enrolled for and completed a master’s at Harvard Law School. Again, how do you think the LL.M. better equipped you as an arbitration practitioner? What were the skills honed during this time or practice-specific knowledge gained during the master’s?
The LL.M. was a terrific learning experience – both in terms of course work and outside it. In terms of arbitration specifically, I was able to build upon my expertise in dispute resolution through courses such as International Commercial Arbitration, International Investment Law (for which I cross registered at Fletcher), and International Trade Law, and through my thesis.
As a Submissions Editor of Harvard International Law Journal and member of Harvard International Arbitration Law Students Association, I got first hand insights into contemporary debates and cutting edge legal scholarship in international arbitration, and had the opportunity to network with leading arbitration practitioners.
I also had a great experience at the Harvard Mediation Program, where I trained and certified as a mediator in Boston courts. This gave me hands-on experience in problem-solving techniques, conflict management and thinking on the feet.
But even besides arbitration, the LL.M. opens a whole new level of learning opportunities.
I greatly enjoyed the inter-disciplinary course curriculum and the chance to cross register for courses in other Harvard schools and Fletcher. I consciously chose half my courses in other areas of law that I was interested in (constitutional law, LGBT rights etc.) which HLS specializes in. That experience was extremely rewarding.
Not to put you in a spot here, but what was your reading of the employment opportunities in the US for a foreign trained lawyer looking for a footing in the US arbitration practice? How does a US LL.M. help here?
Happy to answer this.
As I noted above, I worked in international arbitration as opposed to US arbitration. I think a lot of people go to the LL.M. with the expectation of landing jobs abroad. This is a big reality check – which colleges caution you about as they give you the letter of admission.
It is extremely difficult to get jobs abroad—particularly in the US, and more so in international arbitration. This is not only because of systemic issues such as visa restrictions, but also because there’s tremendous demand for jobs in international arbitration and language skills (such as Spanish, French, Portuguese) where Indians have a disadvantage.
I suspect this is much harder now with the pandemic and recession.
But despite these odds, if you want to break in this field, an LL.M. from a top Ivy League is a must. Aside from learning from top professors, it adds a lot of brand value – which is the first filter law firms abroad apply when recruiting. You also get vast networking opportunities and have access to a very strong alumni network.
Coming back to India, how do you think the country can encourage one, institutional arbitration and two, when it comes to Indian law schools, encourage the growth of Indian arbitration?
I think encouraging institutional arbitration requires concerted effort at a systemic level. In Singapore for instance, the SIAC was given impetus by the government and private players alike. India has seen multiple institutions being set up over the years, but none has fully taken off (although MCIA seems very promising).
It would help to identify one flagship institution that India cohesively pushes as a whole – in terms of advertising, government impetus, etc. It will also need to be managed professionally and firmly, without succumbing to external pressures on things like quality and standards.
On the second question – I think law schools are doing some things very well, like co-curricular activities like moots, ADR competitions, etc. But I think there’s a need to focus on the basics. Teaching the arbitration courses well and in-depth (instead of clubbing them in one arbitration or ADR course) is very important. When I was in NLS, we just had one course on ADR—and arbitration was barely touched upon.
I think the situation has improved now and there are a host of offerings as seminar courses etc, but teaching the course well is the best way to build an arbitration Bar. It is also important to encourage academic research on arbitration.
We see law schools having centres on IPR, constitutional law, environmental law—but there is a dearth of cutting edge research happening on commercial laws.
Lastly, are there any myths or misconceptions related to arbitral practice that you would wish to highlight? I ask this again, from the perspective of an Indian law student interested in joining this field.
Haha – yes, the ‘glamourous’ image. While it sounds like arbitration lawyers are globe-trotting attending hearings and conferences, that’s most often not the full image. Hearings are extremely difficult periods, you barely get any sleep, you’re basically living on adrenaline.
There’s no time to enjoy the city you’re in; even after the hearing, you often get no break as you need to start working on post-hearing briefs immediately.
But on the flipside, hearings are also the most rewarding periods. It marks the conclusion of months or years of concerted effort and to argue a case before an engaged and well-prepared tribunal is an amazing experience.