‘The Indian Arbitration framework is moving towards a new institutional arbitration-friendly regime. However, with respect to Investment Arbitration, we are still a long way from becoming an encumbrance-free jurisdiction.’ – Anubhab Sarkar

Anubhab Sarkar is the Founding Partner at Triumvir Law which he started three years ago at the age of 26. Triumvir Law specialises in the field of International Dispute Resolution. Anubhab advises and aids clients in high stakes international dispute resolution matters and corporate-commercial transactions. He also runs a separate pro-bono research wing focussing on climate change.

Q. Could you tell us about Triumvir Law and the firm’s key practice areas?

Triumvir Law is a boutique law firm based mainly out of Bangalore and Mumbai.

As a team of millennials, we try to use technology, teamwork, organisational skills, and uninhibited communication as efficiently as we can to take on complex legal problems and to deliver the best to our clients, whom we regard with the utmost care and respect. We provide a wide array of services in the fields of corporate and commercial laws, dispute resolution, and intellectual property, to name a few. Our main focus, however, remains International Commercial Arbitration and Bilateral Investment Treaty advisory. Additionally, we hand-hold start-ups through the initial stages of setting up their businesses while simultaneously identifying and advising them about potential legal risks. Essentially, we work in various areas of law depending upon the needs of our clients. We also have a strong consultancy chain based out of many cities (including some abroad) that we do not directly operate out of. Therefore, in the event that a client requires immediate legal advice pertaining to another jurisdiction, we are able to connect the client to another lawyer operating therein.

We also a run a separate pro-bono research wing on climate change and forced migration. We believe that climate change is an alarming reality and that we, as lawyers, can significantly help address the concerns that it poses. On this basis, we are creating a task force from all walks of life in order to help us build a community to tackle climate change in all ways possible.

Q. What sort of cases do you handle? Can you share any memorable case with us?

I work extensively in the practice areas of Arbitration, Corporate Commercial, and Foreign Investment Laws. But I have also been involved, lately, in corporate transactions focused on the technology industry including Cross-Border Mergers & Acquisitions.

Every project we take on is memorable in some way or the other. If I had to choose, however, I believe one of our latest International Commercial Arbitration projects has proven to be a truly memorable experience. We appeared on behalf of a respondent in a high-stakes multi-party international arbitration in which we were faced with an incredibly competent and experienced team of lawyers. Before the pandemic, we travelled back and forth between three cities for the case, and had countless sleepless nights in between. The transition to virtual arbitration sessions was particularly memorable too. At the end of it all, leaving a courtroom or arbitration hearing (virtual or not!), with the knowledge that you have successfully defended your client against the most capable of opponents, is an incomparable feeling – and that’s what makes it all worth it.

A particularly notable landmark in our journey was our first investment treaty arbitration mandate. While starting out, it was unimaginable that we would have the chance to represent a large Indian conglomerate in an investment treaty claim against a South Asian state. And yet, at the age of 27, I was given this opportunity. We were handling an incredibly complex dispute and were up against opposing counsel comprising established members of the bar. Till date, I consider this to be among my biggest achievements.

Q. What is the scope of International Arbitration in India? 

India has always been an attractive destination for foreign investment. However, foreign companies were historically sceptical about choosing India as their seat of arbitration on account of the hitherto prevailing uncertainty regarding arbitral procedures and enforcement of foreign arbitral awards. In 2015, the Government of India took a noteworthy step towards the goal of making India an arbitration-friendly jurisdiction by introducing the Arbitration and Conciliation (Amendment) Act, 2015 to amend the Arbitration and Conciliation Act, 1996 (“the Arbitration Act”); later, the Arbitration and Conciliation (Amendment) Act, 2019 to the same; and now, the newly released Ordinance of 2020. There is also now a gradual trend towards institutional arbitration, with the growth of centres such as the Mumbai Centre for International Arbitration (MCIA) and the prospective New Delhi International Arbitration Centre. Things are certainly getting better, with the Supreme Court in fact recently referring two cases to the MCIA for institutional arbitration. 

While significant measures are being taken to make India a favourable forum for international arbitration, and to mould the judicial framework into better upholding party autonomy, there is still a long way to go.  However, I strongly believe that the golden age for Indian arbitration is right on the horizon, and India will certainly grow to be an integral part of international arbitration history.

Q. You have had the opportunity of interning with the International Arbitration team at Freshfields Bruckhaus Deringer and the Essex Court Chambers. What do you have to say about the Arbitration mechanism in India and its comparisons to other countries?

In my first year in law school, I made it my ambition to explore public international law, which soon led me to the fascinating world of international arbitration. I shaped my activities, time, and efforts in law school accordingly – acting as Research Assistant to Professor Martin Hunter at Essex Court Chambers and interning at Freshfields Bruckhaus Deringer ended up being among the most formative experiences of my life. Apart from observing an extremely professional and inspiring work ethic, I had the opportunity to gain unparalleled international exposure by interacting with some of my idols – who, coincidentally, are also luminaries of the profession. I learned about so much more than simply work and the law, and that is something I consider priceless in my growth as a lawyer and a human being.

Regarding the Indian Arbitration framework, I believe that we are quickly moving towards a new institutional arbitration-friendly regime. However, with respect to Investment Arbitration, we are still a long way from becoming an encumbrance free jurisdiction. With India’s refusal to ratify the ICSID Convention, and also its recent termination of around 58 BITs and replacement thereof with a new Model BIT, it would appear that radical policy changes need to be effected in order to inspire and strengthen the faith of foreign investors in the Indian market and induct our economy into a global ISDS regime.

Q. During your college days, you participated in a lot of moot court competitions. How important do you think is mooting for law students?

I was passionate about mooting from the beginning of my time at law school. I believe that mooting is one of the few activities in law school which truly prepares you for the outside world. Your research skills, strategy, communication, and ability to handle yourself under pressure is rigorously tested – and that is precisely what the profession demands from you. Even though it might be an overwhelming experience initially, learn to enjoy the thrill of it and keep yourself calm. Remember that the judge, too, was once in your position. Comb through your proposition multiple times – the hidden details may often be the key to your issues – and ensure that you are clear with the facts and applicable law. Employ a constructive and strategic approach to the problem, and do some background reading on the general position of law as well as the specifics of your issue. Teamwork is in fact among the most important part of mooting – learn to communicate effectively and honestly with your teammates, and you will be good to go.

Q. What are your views on the role of artificial intelligence and legal technology being adopted to enhance the legal future?

The role of Artificial Intelligence in our lives, and particularly in that of a lawyer, has increased exponentially. From basic task management and scheduling of meetings – hail Google Calendar! – to conducting operations online such as legal research and due diligence, AI has been a godsend for legal professionals. In the Indian legal sector, I believe there is still much scope for further integration of AI into our daily legal processes, with contract review, document automation, electronic discovery, and more. In the Arbitration world, specifically, Arbitrator Intelligence is revolutionizing the way counsels approach international arbitration cases. Their efficient system of research and feedback on arbitrators, which is then compiled into arbitrator reports – enables lawyers to mould their strategy according to the tribunal they are arguing before.

On a more fundamental level, our firm is using MS Teams to facilitate our transfer from a physical workspace to a virtual one at the start of the pandemic. Despite a few small hiccups, there have been several benefits – we have become more efficient with our functioning, communication, and resourcing. We are also slowly able to maintain a better work-life balance, and also connect with interns from across India, who may not have been able to come to Bangalore and work with us before. 

In my opinion, the belief that AI poses a threat to the existence of lawyers is misplaced and rather exaggerated. While AI holds tremendous potential to revolutionise the way lawyers operate, making us more efficient and accurate, it can never replace the humanity which forms the bedrock of the legal profession.

Q. According to you, what are the pros and cons of Online Dispute Resolution?

ODR, in my opinion, has the scope to usher in a new era for Indian dispute resolution on both domestic and global fronts. Concerns around distance and travelling are effectively dispelled as the mediators and parties can connect at any time from any corner of the world; parties and lawyers can move between virtual rooms at a click of a button while simultaneously having a guided, productive discussion. An irrefutable advantage of ODR, additionally, is the cost and time effectiveness for all stakeholders – parties will now bear minimal costs, and also virtually eliminate long waiting hours/multiple adjournments. Another notable change that ODR will bring is the minimising of in-person confrontation, which curtails chances of any emotional overhauls – an otherwise fairly regular feature of direct mediation sessions.

It does, however, have its fair share of cons. Party confidentiality stands at a constant risk with virtual hearings capable of being recorded. Infrastructural disparity between parties and lawyers could put one at an undue disadvantage or create more encumbrances in the proceedings as compared to in-person hearings. Such disparities may also, at times, create an exclusive environment similar to denial of access to justice for certain stakeholders. The in-person human element is lost, which can sometimes be the key to resolving a dispute.

As a nation making leaps forward in the work from home/ODR regime, India needs to strategically direct investments towards making structural changes that facilitate infrastructure and accessibility across the country. Clear and stringent regulation for data safety and confidentiality are the need of the hour, with hearings and document exchanges moving online. Most importantly, the judicial system must work towards inspiring the confidence of the international community in our legal system by ensuring unencumbered accessibility for all parties involved.

With institutions such as the LCIA giving formal recognition and encouragement to ODR, other international bodies will soon follow suit, simplifying the ADR process even further.

Q. How do you stay up-to date with all the latest legal developments?

The legal industry is constantly evolving. Between firm mergers, court cases, politics, policy and international relations, not a day passes by without a legal issue making news. To stay up to date with such developments, I have access to prominent international commercial arbitration and dispute resolution journals/databases, and also follow Supreme Court developments regularly. News apps and legal blogs are also very useful resources for such updates. Personally, I prefer to be engaged even when I’m on the move – podcasts often help me in this endeavour, since I learn and absorb better while listening rather than reading.

Apart from the above, our internship program encourages interns to develop the habit of keeping track with relevant legal developments, wherein they regularly compile corporate law and arbitration updates on a daily or weekly basis. These updates also serve as excellent resources for me and the entire team. 

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