Sumeet Kachwaha

Kachwaha & Partners

New Delhi www.kaplegal.com

skachwaha@kaplegal.com Tel: +91 11 4166 1333

Biography

Sumeet Kachwaha has received top rankings from international directories in dispute resolution, construction and infrastructure sections. Sumeet’s past positions include, chair of the Dispute Resolution & Arbitration Committee of the IPBA; Advisory Board of Kuala Lumpur based AIAC (formerly KLRCA); and vice president, APRAG.

The legal profession has changed 180 degrees since I joined it in 1979. Initially, I practiced as a junior counsel and was involved in some of the largest matters ever to come up before Indian courts. This included the Union Carbide Bhopal gas leak disaster case in 1984 – the then largest damages case in the world, arising out of the worst industrial disaster faced by mankind.

With the growth of international arbitrations, I set up a specialist firm (Kachwaha and Partners) in 2002.

Over the years, I have been privileged to handle disputes from all corners of the world and in wide-ranging fields.

I have stepped in as an expert witness on Indian law in the courts of England and Singapore and also served as amicus curiae in several matters before the High Court of Delhi, including the very first BIT dispute to come up before Indian courts (the over US$2 billion dispute between Vodafone and the government of India).

What is it about working in the construction industry that you find most interesting?

I am naturally attracted to large infrastructure projects and have a keen interest and instinct in the intricacies of heavy engineering and construction. I find brainstorming and strategising to be particularly interesting, especially when heavy engineering issues are involved along with the dynamics of construction issues.

What short and long-term effects do you see covid-19 having on the construction industry?

Covid-19 had an unprecedented paralysing effect on the world at large and we are still grappling with it. In the construction industry, almost everyone (big or small), was impacted and invoked force majeure. In the short term I do see projects getting delayed and the consequent litigation impacting players and projects. While there will be a churn, infrastructure growth is critical for the economy and I do not see any long-term adverse effect. I see the government stepping in and ameliorating the covid-19 impact and overall encouraging and stimulating the construction industry.

You have published extensively on international arbitration. Are there any trends and developments emerging that you have written about recently?

India needs to render challenges to awards to be dealt with expeditiously. The government is actively engaged and has brought about certain amendments. A 2016 amendment in effect provides, that an award for payment of money can be stayed only upon a pre-deposit or securitisation of the sums awarded. Further, “patent illegality” stands excluded as a ground to challenge an international arbitration award.

However, all this is not enough. One issue I strongly advocate for is the need for an ‘adjudication’ system enabling interim relief to the industry. India should keenly look at the models available in Australia and the UK in this regard.

Another development which I support relates to third party funding and the need for a comprehensive legislation on it.

What motivated you to set up your own firm?

Cross-border work is fascinating. The opening up of the Indian economy created the right environment. Now (over two decades later), I can say that it was clearly the right decision to take.

What measures would you advocate to improve efficiency in construction arbitration proceedings?

India needs to adapt and mainstream the best practices followed in developed jurisdictions in construction arbitrations. Briefly, this includes document management; case management and use of technology. The chief obstacle here is a lack of trained arbitrators. Arbitrators in India are usually drawn from the pool of retired judges who are too steeped in court traditions to embrace change. There is an urgent need for Indian arbitral institutions to proactively orient and train arbitrators in construction arbitration best practices.

In which direction do you think construction arbitrations will develop in the next five years?

Construction is one of the biggest drivers of the Indian economy and therefore, construction arbitrations will gather more and more importance. With the growth of construction arbitrations, better case management techniques will be embraced and sanctified.

Currently, India has some ground to cover. At the same time there is enormous political will to render arbitrations more effective and efficient. I would expect (over a period of time) the government to address and find solutions, rendering arbitrations more efficacious. I would also expect more arbitrations to be institute administered, (rather than the current ad-hoc mode) and I would expect technology and better case management techniques being used more widely.

What advice would you give to budding practitioners hoping to one day be in your position?

The Indian legal profession is quite differently structured from the developed country models and lawyers do not have a professional groove to readily settle into. Only a fraction of young lawyers find themselves in good, professionally run firms. Most lawyers usually end up in the courts as sole practitioners (we do not have the equivalent of barristers chambers). Most lawyers are benchmarking themselves locally and not globally. My advice to these young lawyers would be to enrich themselves by intermingling with their international peers through international conferences and events.

Peers and clients say: “Sumeet never fails to produce work of a very high international standard” “He has a regular roster of high-profile clientele”