Mr. Peacock, welcome to the Arbitration Workshop! Firstly, we are extremely honoured to have you agree to give us your interview and to share your perspective with our readers.
Q. Before we delve in, may we request you to kindly introduce yourself and tell us about the origins of your interest in the field of Arbitration?
A. Firstly, thank you for the invitation and congratulations on The Arbitration Workshop project.
I am a Dispute Resolution lawyer, and international arbitration specialist, based in London. I am a partner in the law firm Herbert Smith Freehills (HSF) and Head of the India Disputes practice. I have been involved in arbitration cases since I qualified as a solicitor some 20+ years ago having been fortunate to work as a junior with Julian Lew QC, Larry Shore and Robert Volterra during their time with HSF. I have been involved on India-related arbitrations since the outset – one of my first cases as an associate involved the interplay between the Delhi High Court and a prospective Singapore arbitration. Since that time, I have been fortunate to act for a number of India’s largest corporations on their disputes in various forums, and also to act for investors into India on their commercial and treaty arbitrations. I have also sat as an arbitrator and had the pleasure of being addressed by Indian advocates.
I spent 3 years heading up the HSF arbitration practice in Singapore, which involved a large number of India-related matters. I am (when circumstances permit) a frequent visitor to India and a long-time supporter of arbitration in India. I have the great privilege to sit on the Council of the excellent Mumbai Centre for International Arbitration (MCIA), amongst my other appointments.
Q. What discernible trends in commercial and investment arbitration do you see emerging as a result of the COVID-19 pandemic? What considerations do you think future Claimants should take into due notice before initiating arbitrations?
A. I think the trend will be for a long tail of disputes arising from the devastating commercial impacts of the pandemic, many of which will of course end up being resolved through arbitration. While some of these disputes have already started to arise, many businesses and industry sectors, are understandably more focussed on ensuring their survival in the near term than in seeking to litigate out now breaches of agreements with counterparties who may not themselves be capable of satisfying any remedies that are awarded. Limitation periods may force some claims to be brought sooner, but otherwise I would expect businesses to want to get to the other side (or what they hope is the other side) of this situation before then deciding what breaches remain significant and what claims to pursue whether in commercial or investment arbitration.
The considerations for claimants will be the same as always - to ensure at the outset that they are clear on the strategy, commitment, and the ultimate enforceability of the arbitration outcome before starting proceedings. There may of course be short-term reasons to threaten or bring proceedings, such as negotiation leverage or the availability of interim relief, but arbitration and litigation are both exercises where claimants need to be clear on their goals and what investment of time and effort may ultimately be needed to achieve success before they press the button to commence.
Q. Do you agree with the general impression that the Model BIT of India is protectionist in scope especially with concerns caused by the omission of Fair & Equitable Treatment standard and the presence of a clause mandating exhaustion of domestic remedy before initiating arbitration proceedings? What changes, if any, would you recommend in the Model BIT of India which could satisfy the interests of India while at the same time providing adequate protection to the foreign investor?
A. The prior question is whether to enter into a bilateral investment treaty (BIT) at all. That is, whether you promise foreign investors standards of treatment and the availability of treaty remedies, rather than no such promises.
Of course, the debate in relation to India includes the backdrop that a large number of BITs which included substantially different provisions to the current Model BIT were unilaterally cancelled. Those cancellations and the scope of the protections in the model BIT certainly appeared, at least in part, to be a reaction to the BIT claims that India was then facing and before it had succeeded in defending any such claims, which it has since done, albeit it has lost on others.
I know that, since the publication of the Model BIT, the Indian government has been consulting and trying to get views from investors on what levels of protection they would like to see, and would be influenced by, in terms of investments into India, but also importantly for Indian investors overseas. The latter perspective is obviously important for BITs with countries where Indian outbound investment may be substantial, so the question of what satisfies the interests of India must include what level of protection its Indian businesses want when they invest overseas.
Q. ICSID and UNCITRAL have now released the long-awaited Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, what is your take on the draft code? How successful do you think will the code of conduct be in addressing issues such as biasness and double hatting in investment arbitrations?
A. There is a lot in the draft Code, and I suspect we have some distance to go before we reach a final text. I certainly applaud the efforts to bring greater clarity on how Investor-State Dispute Settlement is intended to operate and to address criticisms of the process. That is not to say that all the criticisms are valid, or that sweeping changes are needed. Double-hatting, for example, in my view is more of a problem in theory than in practice. Likewise, I simply do not think that the current system is fundamentally undermined by bias. No doubt there will always be some instances or allegations that need to be properly addressed, as there are in national courts. Disclosure is also an area where greater focus is always helpful provided the demands are realistic and do not themselves create unnecessary grounds for future challenges that might undermine the process intended to be supported.
Q. How important do you think Data Protection is in International Arbitration? Also, in simple terms can you describe what exactly does the term “data” include within its ambit in the context of data protection in arbitrations and what possible repercussions emerge in case of a leak of such “data”?
A. Unfortunately, there are few simple answers when it comes to managing data in arbitrations. It is a topic that was seldom discussed 10 years ago, but now is – rightly – absorbing a lot of considered thought from institutions, arbitrators, parties and their counsel. Fundamentally, the arbitration process (like many others) needs to ensure that it has adequate measures in place to prevent the improper dissemination or use of personal data belonging to those who may be involved in the dispute, or may be peripheral to it. The harm that may arise of course depends on what data is leaked and to whom. Individuals may suffer personal, reputation or financial consequences depending on the nature of the data. Companies, governments and other organisations may suffered their own harm if their data is improperly access or used, including by criminals who may view the arbitration process as a repository of often sensitive data about valuable or otherwise important projects.
A good entry to the topic is the ICCA-IBA Joint Task Force’s Roadmap to Data Protection in International Arbitration which was published as a consultation draft last year (https://cdn.arbitration-icca.org/s3fs-public/document/media_document/roadmap_28.02.20.pdf).
Q. Given your varied experiences as a member of HSF’s India Executive, working in the Moscow office on English law Russian disputes, co-chairing the Nordic Group and also having previously led the Singapore arbitration practice of the firm, do you think cultural considerations and different legal traditions are an important aspect that every law firm needs to address while interacting with clients? If yes, then how should a law firm go about doing that?
A. Another big topic! Yes, any firm or practitioner who deals with cross-border transactions or disputes must try to understand the differing perspectives of the various stakeholders to the process. This is not just the clients, although of course they are the entry point for the law firm. In an arbitration context, think also about the counterparties, the arbitrators, co-counsel, opposing counsel, witnesses, experts, arbitral institutions. If you are addressing an arbitral tribunal of 3 diverse practitioners in the same way you would address a judge in your domestic courts, then you are probably doing it wrong. If you are making submissions in English, are you using the right English for your audience? The use of cricket analogies, for example, may be common enough in the Indian or English court, but confusing at best for an arbitral tribunal whose members do not know or care about “straight bats” and the “front foot”.
Q. How is your firm adapting to the Work from Home culture? Do you think virtual hearings will become the norm beyond the quarantine period as well?
A. The success of moving into a fully or mostly ‘work from home’ environment has surprised me, and I think many others. Obviously, the circumstances under which we have been forced to adapt are not welcome, but the rapid evolution in the use of technology has been beneficial in terms of providing options for the future. Virtual hearings are one such option. Even before last year many procedural hearings in international arbitration would take place by telephone in order to avoid the cost and disruption of travelling to meet in person. 2020 has seen those hearing move onto virtual platforms, and I would expect that to endure. For final hearings involving witnesses and lengthy oral submissions, I suspect we will see more flexibility around the use of virtual or hybrid hearings. That said, many tribunals and counsel (not to mention parties and witnesses) may retain a preference for in person hearings where possible. For example, where there is conflicting witness testimony, a tribunal may well prefer to see the witnesses in person to give their evidence and be questioned on it, rather than have them appear virtually. There will always be a trade-off in terms of time, disruption, costs, and the carbon cost of flying to meet in person. I think what 2020 has done is re-set expectations in terms of what can effectively be done virtually. That lesson will remain with us.
Q. Are there any specifics of arbitral practices that you particularly enjoy? Is there any particular practice you would recommend young lawyers should regularly engage in to become better in the field?
A. For me, the best parts of the job are the strategic planning and the advocacy. In both cases, it is vital to try to see the dispute as others may see it. What is it that the counterparty sees in this case? Why is it acting the way it is, and what does that tell me about how I should address them and the dispute? Likewise, for an advocate, it is vital to think how the case appears to a neutral decision-maker who has less familiarity with the details and less time to reach a firm view on the merits. It is too tempting to fall for your own arguments, and just to focus on your own perspective. You will do yourself and your client no favours if you do.
Q. What would be your word of advice to the readers trying to make it big in the transnational practice of international arbitration?
A. Focus on doing each role you are given as best you can and learning from those around you. Repeat at the next steps and then learn also how to delegate and work with those junior to you. After a few years, you will be astonished how much you have learned and how far you have developed.