Ep #4: Professor Kabir Duggal, Akin

Welcome to Aiken asks the Middle East disputes podcast co-hosted by me, Shane Jury. And by me, Graham Lovett, Shane and I co-lead Aiken's Middle East disputes practice. In this series we host discussions with leading figures in the Middle East disputes community. In each segment we speak with judges, institutional leaders and eminent practitioners to hear their perspectives on topics at the heart of Middle East disputes, including jurisdiction, enforcement and regional trends in dispute resolution. Our aim is to inform, entertain and to offer a bite-size flavour of the issues on the top of our guests, minds and agendas. Now, to today's guest, Shane, we've kept things mostly regional thus far, but today we're going global, and happily we didn't have to look far outside our own firm to do it. That's right, we're joined by our fellow Aiken partner, a fully fledged professor and holder of no less than two PHDs. Professor Dr. Dr. Kabir Duggle, based in New York, is one of the leading voices in investor-state dispute settlement anywhere in the world. And as well as being a doctor, Kabir is that rare combination, a serious investor-state dispute settlement practitioner who also teaches the next generation at Columbia and Harvard, and somehow still finds time to write more than the rest of us read. He's also a tireless advocate for diversity in international arbitration, which frankly is a conversation this field needs more of, not less. And, full disclosure, part of our agenda today is entirely self-interested. We'd like the Middle East arbitration community to know Kabir, as well as the communities in New York and Washington already do. So, consider this, his regional launch. No pressure, Kabir. Investment treaty arbitration is increasingly part of the Middle East story, so there's a lot to get into, and it's never been more timely. Kabir, we're all sitting here in New York City today in advance of the Aiken arbitration lecture taking place this evening. Would you be able to tell us a little bit about what to expect tonight? Welcome to both of you to New York City, that looks nice and great to me. Oh, we enjoyed the right, believe me, it was a nice change, it was a nice change to all of Houston. Fair enough. Well, it's a very special arbitration lecture, because it's the 11th arbitration lecture. And after a decade of having the arbitration lecture in London, it's the first time that we're moving across the pond to the United States. To New York City, and we have found two leading towering figures in arbitration, Professor George Berman from Columbia Law School, and Sir Bernard Eeder, today an arbitrator, but also a judge in Singapore, and a very famous judge from the commercial court formerly in London. So, before we start, we're going to ask you a few rapid fire questions to soften you up a little bit. Kabir, I think I know the answer to this, but I'm going to try my luck anyway, arbitration or litigation. If you had to pick one to resolve your own dispute, which would you pick, and why? After having devoted almost 20 years to arbitration, I'm going to say arbitration. That's great to hear. That was the answer we wanted. Complete the sentence. The Middle East disputes market in 2030 will be no longer a regional player in arbitration, but actually a leader defining arbitration. What's the one thing about your job that gets you up in the morning? You can make a real difference at cutting edge issues involving law, politics, commerce, and diplomacy. It's a privilege to do this. Now, this next one, and don't forget Kabir, these are short virtual losses, if he weren't in the law, what would you be doing? Well, I would like to say I would be a diplomat, but because they don't succeed in being very diplomatic, maybe a historian. Kabir, based on your experience of arbitration weeks around the world, if you were to describe, to buy arbitration week in three words, how would you describe it? Fantastic. Friends and fun. So finally, for the quick fire, Jonathan Sumtion once said that most of the law is common sense with bells and knobs on. What would you say about that? It's hard to disagree with him. So I see, are you agree? It's the safe answer. The safe answer, yeah. Great. Well, now we've covered a lot of ground in the quick fire Kabir. We're going to take a bit of a deeper dive into your area of specialism, investor state, dispute settlement, or ISDS for sure. So Kabir, first off the bat, I've got to ask, you have the distinction of being both a professor and holding two PhDs. So my first question for you is whether should we call you professor, doctor, doctor, doctor, or professor, doctor, or can we just call you Kabir? I'd prefer you just call me Kabir. All the other names are generally used when people are mad at me. Well, perhaps we'll wait till the end and we'll talk to the doctor and professor. So, from Middle East audience, less steeped in ISDS, what's the one thing they most need to get to understand about investor state arbitration today? That's a great question because I think most people think about investor state arbitration only once a dispute has arisen. That's when you pick these treaties up. That's when states realize these treaties often have been existed in the first place. And our suggestion is think about investor state dispute settlement holistically. And what do you mean by this? For investors, think about these treaties carefully when you're making your investment. Something very important from the region that you both come from, right? We are seeing a lot of outbound investment from the Middle East. So think about it holistically states, think about what kinds of protections do you want to offer? Think about what's form of dispute resolution do you want to offer? The more we think about this regime holistically, a lot of problems that exist could be avoided. Makes complete sense and I think it's really practical and important advice for our listeners. There's a topic you and I have discussed quite a bit previously regarding really the future of ISDS. Obviously there are proposals afoot for a standing ISDS court amongst other things. So given your vast experience in this area, we're really curious to discuss with you bearing in mind the significant pressure ISDS is under globally reform, withdrawal from treaties and legitimacy debates. Where do you think this is all really heading? That's again a great question. I'll take a step back. The first investment treaty in a modern sense was signed between Germany and Pakistan, 1959. So we're talking about a field of law that has developed and we're talking in relative terms recently. Pakistan gets sued in the early 2000s and the attorney general at that time of Pakistan goes to the internet and searches what is an investment treaty and what is exit? Which brings in a very important point. These treaties were often signed as statements of good intention but very little awareness of the teeth that they actually carry. So to answer your question, I think we're going to see more carefully calibrated treaties and that is a good thing. I think everybody will benefit from better drafted treaties. I'll also put a slightly controversial proposition on the table. Europe has been heavily pushing for the creation of an investment court. I think you alluded to that. My hot take for this podcast, we are going to see a court. Is it going to be an exclusive forum? We can't say what kinds of disputes are going to be resolved? We cannot say. But I think we have a very key constituent in the European Union pushing for it and we're likely therefore going to see it. What do you think is driving the push for the creation of this court? What factors are underpinning that news? You can give two answers to that question. One answer looked at genuine criticisms as to how this field has changed. developed. So if you want to be fair this is a response to some of the criticisms that exist stakeholders, arbitrators having vested interest in keeping the system alive, allowing broad expansions, that's the positive response. If you want to be more pragmatic or realistic, we're increasingly seeing Western Europe in particular facing a flurry of disputes, and suddenly we see arguments coming out from Western Europe that replicate arguments we have heard from the Global South. You know, this is a system that doesn't give state sufficient voice and pick your favourite child from the two responses. Presumably Spain is quite a proponent of this. Spain, Italy, Czech Republic. The number two most sued country today is in Western Europe, and I rest my case leaving that statistic floating in the Universe. Turning close at our home, how relevant is investment treaty arbitration becoming in the Middle East for Middle East states and investors in both directions. As somebody who grew up in the Middle East, I say this with great pride that I think arbitration writ large but investors state arbitration in particular is going to have a future because of the Middle East. And I see this and your question also alluded to this working both ways, right? States are trying to attract investment and so treaties become one signaling method to let foreign investors know we are open for business. Middle East has the resources, has the ability to be able to attract this kind of investment and so we see very positive signs in that region but also the Middle East and Middle East in states are increasingly funding investments around the world, right? Think about sovereign wealth funds. It's the Middle East that is keeping that entire field of law running and they're going to need protection and so great moment to be in the Middle East. Well that's a wonderful segue to our next question to be here. When you think about those sovereign wealth fund flows and increased outbound investment which we're seeing enormous amounts of of course in the region, what particular treaty protections do you think Middle East investors should be thinking harder about? That's such a great question because they think Middle East investors in particular need to be thinking about this holistically, need to be thinking about this at every stage and you don't need to just think about this when you're getting into a country. I say this because if you look at the world, the West at large is increasingly becoming protectionist, right? You're seeing this as a global phenomenon? There are spillover effects but if you're investing billions of dollars you may make your investment at an opportune moment when things look okay but things can change very rapidly and one way to make sure that your investments are protected is to consider these treaty protections. So think long, think hard and hopefully you're not thinking about them just when the bad thing has happened that might be too late. Moving back a little bit to arbitration, you teach of course at Columbia and Harvard and I can tell just by your answers and the way you your enthusiasm sort of shines through so I'm sure your students are absolutely love you, Columbia and you also write prolifically I believe that you've just published your tenth book. I have and maybe you could make a plug for your book if you would like to but before you do that what do your students getting right about the future of arbitration that practitioners might be missing? You know we like to give younger people a hard time and especially the current generation we like to blame them as being too soft and too fragile but actually in many senses they are people who are ready to question assumptions, assumptions we take for granted in our arbitration. Lawyers are risk averse and I put all of us in that category if you tell us to do something that hasn't been done it is going to cause different levels of anxiety and that is where we can look at this younger generation with hope because they are willing to question things and force us to think deep and hard about why we do things and if we can convince them we probably have a good answer. So let's talk more to the millennials and post-millennians, I can like put on the spot now give me an example of what it is that they might be thinking about that we're not. Why do we need nine witnesses and why do your submissions in arbitration need to be hundreds of pages? I mean somebody genuinely asked me that and the response that we give as well we are dealing with very cutting edge issues right there at the intersection of policy and regulation and then the answer as well the Supreme Court has page limits and they make decisions that impact everybody's day to day life and there might be some truth to what they are telling us if it's good enough for the Supreme Court perhaps we need to think whether page limits whether Creator consideration is necessary in arbitration. Well the three of us all sit as arbitrators and I think I speak for the collective in saying we would welcome sort of decisions really on that advantage. I would also welcome the deletion of the chronological record at the beginning of every award because you can instantly see how big an award is without throwing the chronology at the front. You know I'm actually working with a high school student she happens to be my niece and she's preparing to go to Princeton but we're actually looking at 100 ISDS awards to see how much of the award is actually the award as opposed to who the parties are what the chronology is what the summary of the argument is our preliminary data shockingly consistent with what you have said that the actual dispositive is just a few pages. Yeah well it can be and maybe that's one further discussion with all of these during arbitration week indeed indeed shifting gears conveyor I know from our discussions how much of a really passionate advocate you are for diversity in arbitration. So could you let our listeners know what practical steps do you think actually make a difference in this space. Diversity is one of the biggest challenges for the legitimacy of arbitration today. People are going to arbitrate if they think arbitration is legitimate and there are serious questions the arbitral tribunals do not appear representative on gender on race ethnicity and this is in part fueling the backlash. Now I think there are a couple of things we can do you know we are often thinking of diversity at the back end right we're thinking about what forms of arbitration we think about a very important question right they are the decision makers but we need to be thinking about the pipeline right becoming an arbitrator is often hitting the pinnacle of the legal profession have we fostered enough people to get out there so pipeline I think is a critical issue. The other problem right and this is when you are doing the selection of the arbitrator again we are lawyers we are risk averse in investment arbitration in particular the social club of arbitrators is like 30 people and they really fit a very specific demographic we need to be thinking holistically once again as lawyers considering candidates more specifically looking at other in this year that could show competence and that's ultimately what we want right we need somebody good and competent I'll also just mention you know in a case that we were involved in the selection we made would not have been a candidate most people would have considered and the reason we did that was just thinking about the right profile the right qualities the right expertise we wanted and we found a candidate that we thought met all Those requirements. so it can be done if you just think about it strategically. I think we've all got a lot of work to do in that space and it behooves all of us to think more deeply about those issues so it could be here but thank you very much for joining the podcast hopefully we'll see you during Dubai arbitration week. I hope so too and it's been a real pleasure. Thank you. Thank you. [BLANK_AUDIO]