Ms. Jhangiani, welcome to the Arbitration Workshop! Firstly, we congratulate you Ma’am, for being appointed the Queen’s Counsel by her Majesty the Queen and for being the first female Queen’s Counsel at your firm Clyde & Co. Secondly, we appreciate the opportunity 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. Thank you very much for your kind wishes.
I have to confess that my entry into the field of international arbitration was actually by accident. I was a barrister specialising in High Court work in London when my husband and I decided we wished to relocate and move eastwards. It is not easy to practise outside your home jurisdiction as a litigator, because litigation tends to be entirely domestic (although we have seen the emergence of international commercial courts in the last decade or so…).
I therefore applied to study international commercial arbitration at Queen Mary University in London, and before I had even commenced the course, I was offered a role at my current firm in Dubai, specialising in international arbitration. I have no doubt that my interest in studying the course assisted in landing the job. Once I started the course, I found I thoroughly enjoyed the field, and I graduated with distinction.
Q. The recent Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings highlights the issue of Gender Diversity in international arbitration appointments. Do you agree with the aforesaid finding of the Task Force? What is your opinion regarding this issue?
A. The Report is an excellent piece of authorship. It highlights that positive steps have been made in recent years towards more gender diversity in international arbitration appointments, but there is still a great deal of work to be done. A key feature of the report is that it makes recommendations on how to improve gender diversity of both Counsel and arbitrators. I hope those recommendations are heeded by all of those involved in the field, including institutions and law firms, so that we can continue to make the progress which is very much needed.
Q. Would you agree that disputes regarding interpretation of the contract form the core of most arbitration disputes? How do you navigate the principles of contract law and contractual interpretation in different arbitrations where the substantive law of contract is based on different laws and legal systems.
A. Most commercial arbitrations deal with contractual disputes, and I do agree that the interpretation of the relevant contract will often be in issue. The way I have dealt with this in my own practice is to address what the relevant principles are for contractual interpretation under the substantive law of the contract, before arguing why, based on those rules, the Tribunal should agree with the interpretation put forward by my client.
Q. What do you think about the liberalisation of third-party funding in top global arbitration centres? As a member of SIAC Users’ Council and Director of Chartered Institute of Arbitrators’ do you propose any further changes in provisions to streamline the process especially given that both UK and Singapore have legislations governing third party funding?
A. Third Party Funding has developed organically in different jurisdictions and each jurisdiction has adopted an approach which works best for that jurisdiction. For example, funders are essentially self-regulated in England & Wales, but are regulated by legislation in Singapore. Whilst this means that the approach is not streamlined globally, I think each jurisdiction is best placed to consider what regulation and legislation is most appropriate for its own legal landscape.
Q. How are you adapting to the Work from Home culture? Do you think virtual hearings will become the norm beyond the quarantine period as well?
A. Like everyone else, I have been forced to adapt! And the process has been smoother than I thought it would be, to be honest. My experience of virtual hearings – including cross-examination at virtual hearings – has been very positive. I expect we will continue to reap the cost and convenience benefits of virtual hearings, even beyond the pandemic. That said, my personal view is that virtual hearings are better suited to shorter hearings (for example, those lasting one week or less), than longer hearings.
Q. Are there any specifics of arbitral practices that you particularly enjoy? What practices do you employ to engage and keep up with the recent trends in arbitration? Is there any routine you would recommend young lawyers should regularly engage in to become better in the field?
A. Thankfully there are many aspects of arbitral practice that I enjoy. I particularly enjoy advocacy, but I am also very interested in arbitration practice and procedure. I regularly read the Kluwer arbitration blog (and also contribute to it on topics that catch my interest). I would highly recommend that young lawyers sign up to receive the blog. I would also recommend regularly participating in seminars and webinars in the field, as the field is continually evolving and it is good to be abreast of latest developments, as well of the discussions and thought leadership which may foreshadow future developments.
Q. What would be your word of advice to the readers trying to make it big in the transnational practice of international arbitration?
A. If you can gain any experience from an arbitrator's point of view, that will stand you in excellent stead as Counsel. Receiving arbitral appointments is not easy, but receiving an appointment as a tribunal secretary may be easier to attain for younger lawyers. The experience you gain as tribunal secretary will be invaluable, as will the impression you will make if you work hard and do a fantastic job.
The Editorial Team at the Arbitration Workshop would like to thank Ms. Sapna Jhangiani for taking out time from her busy schedule and for sharing her perspectives with us!