Kabir Duggal

Arnold & Porter

New York www.arnoldporter.com

kabir.duggal@arnoldporter.com Tel: +1 212 836 7141

Biography

Dr Kabir Duggal is an attorney at Arnold and Porter serving both as arbitrator and counsel. Dr. Duggal is also an adjunct professor at Columbia Law and Fordham Law, and a course director for the Columbia Law School-Chartered Institute of Arbitrators. He acts as a consultant for the UN Office for Least Developed Countries on the creation of an “Investment Support Program”. Dr Duggal works closely with the US Department of Commerce’s Commercial Law Development Program (CLDP) and has also conducted training and capacity-building sessions for several governments on public international law and dispute resolution matters. He is the co-founder of REAL (Racial Equality for Arbitration Lawyers), a non-profit seeking to create greater representation in international arbitration.

As a person born in Saudi Arabia, raised in the Middle East and in India, educated in the UK, the Netherlands, and the US, and working in the US and the UK, I wanted a career that was truly international. I toyed with and explored the possibility of becoming a diplomat or working for the Ministry for Foreign Affairs when a professor introduced me to international arbitration. The rest as they say is history.

What do you believe are the most important issues for clients when looking to begin an arbitration?

For clients, the first principles of international arbitration (ie, a cost-effective, timely process that respects due process) can be top priorities when it comes to international arbitration. It behoves both counsel and arbitrators not to forget this especially during passionate moments of a proceeding. Strategies to keep costs under control (eg, avoid repetitive witness statements or restricting document production to a limited category) can make a critical difference towards procedural efficiency.

In your experience, how efficient have virtual hearings been? Do you consider them to be a suitable replacement for in-person proceedings?

It is notable how quickly counsel, parties, and arbitrators – really all stakeholders in the arbitral space – pivoted to virtual hearings against national court closures at the onset of the pandemic. In parallel, the international arbitration community developed best practices to conduct a virtual hearing effectively in real time. These developments demonstrate the flexibility of the arbitral process and the international arbitration community’s ability to be resilient and respond to challenges. As we slowly emerge from the pandemic, I believe we have an additional option in our arbitral arsenal, ie, optionality to consider whether a given matter warrants a virtual or hybrid format. For smaller disputes or disputes that do not have many witnesses, virtual hearings can be effective. Similarly, preliminary and prehearing conferences can be virtual barring exceptional circumstances. For larger or more complex cases, hybrid formats can be explored to provide tangible benefits.

How has your membership of the International Centre for Dispute Resolution (ICDR) enhanced your practice?

The ICDR, like most international arbitral institutions, provides invaluable resources, inclusive of trainings and networking sessions, for those developing their arbitrator career and those already established to refine their skills. I remain grateful to institutions like the ICDR for their support and trust in me. Moreover, institutions are often at the forefront of innovation, evolution, diversity-related activities, and best practices, with access to the full compendium of global stakeholders critical to our practice. I am very honoured to serve on the ICDR’s Council and also serve on its diversity, equity and inclusion committee, publications committee, large and complex cases committee, and international committee. Each of these committees strives to innovate and develop best practices within their respective areas of focus.

To what extent should more be done to improve the transparency of arbitration proceedings?

Our community has already adopted several, positive initiatives to facilitate transparency such as allowing amici submissions, making certain details of arbitral proceedings public, permitting non-disputing party submissions and the like. Efforts of this nature can be further strengthened. For example, tribunals can be encouraged to actually refer to the amici submissions in the award. Further, institutions can be encouraged to provide more granular details on diversity. Most institutions provide details on nationality but if institutions also start capturing data on the racial and ethnic make-up, we will be further able to assess how minorities within a country fare when it comes to arbitral appointments. These efforts will increase the legitimacy of international arbitration.

If you could implement one reform to investor-state arbitration, what would it be and why?

I would allow greater consideration of human rights and environmental issues in investor-state arbitration. We can accomplish this through a variety of means including allowing amici submissions and expert testimony, and the tribunal proactively asking questions on these issues. I believe these options (and many others) can increase the legitimacy and buy-in into arbitration, and is the right thing to do.

How has the relationship between arbitrators and parties developed over your career? How might this affect tribunals?

I have seen arbitration change for the better from a much narrower pool of arbitrators (who may also have had close relationships with counsel) to a much larger (albeit not consistently diverse) pool of arbitrators today. A more diverse and representative set of independent arbitrators supports the overall legitimacy of our practice and I welcome it, for the success of international arbitration lies in its global representation of all stakeholders in the process.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?

There are three things I am keen to accomplish: (i) I want to support efforts for greater representation in our field for both visible and invisible minorities; (ii) I want to support initiatives looking at the mental health and well-being of lawyers in international arbitration; and (iii) I want to facilitate practices that support the key, founding tenets of international arbitration (ie, cost efficiency matched with timely and reasoned awards). As international arbitration grows and expands to more regions of the world, demonstrated in the recent launch of local and regional arbitral centres and institutions, we must remain diligent and determined to deliver the benefits that this disputes practice brings all over the world.

Peers and clients say: “He always offers thoughtful insights and positions” “Mr Duggal is truly a leader in the arbitration market that people all turn to for his opinions” “Kabir’s methodical, effective approach lends great stability to any matter”