In the News Law360

Q&A With Kirkland & Ellis' Rajinder Bassi

Rajinder Bassi is a partner in the international arbitration and litigation group in the London office of Kirkland & Ellis International LLP. She has represented multinational corporations, government entities, and high-profile individuals in high-stakes treaty and international commercial arbitrations around the world under the auspices of many of the leading arbitral institutions including the ICC, LCIA, SIAC, AAA, and ICSID. These cases have involved a wide range of complex subject matters, industry sectors, and applicable laws, and venues. Bassi also serves as an arbitrator. She is listed as a leading international arbitration lawyer in Chambers U.K. 2015 and 2016, where she is praised for “handling several multibillion-dollar energy disputes" and commended for being “tactically astute” and having “excellent judgment.”

Q: What attracted you to international arbitration work?

A: In the U.K. before you can qualify as a lawyer you must undertake a two-year training contract where you typically complete four six-month rotations in difference practice areas. By the end of my third rotation (which was in Clifford Chance’s New York Office) I was absolutely convinced I would become a finance lawyer in New York and live the glamorous life of a lawyer in Manhattan. My final rotation was in the international arbitration group in London. If I am being completely honest I am not sure I even knew what international arbitration was at that time but as one of the previous trainee lawyers had got to fly to the Caribbean to file a legal document I was hoping I might get a similar excursion.

Much to my surprise I loved it straight away as I was very fortunate to get involved in two interesting cases — one for a Chinese real estate client and the other for a U.S. engineering client in connection with a dispute in Jamaica, which involved some trips to Miami and Jamaica (rather handy when escaping the cold weather in London). I loved getting to grips with the facts of the case, looking at our clients’ best arguments and helping to draft submissions. After only six or seven weeks into the rotation I nervously approached one of the partners in the group and asked if I could qualify into the group and I was extremely fortunate that he gave me that opportunity — thank you Audley Sheppard.

Since that time I have never regretted my choice. I never get bored as the disputes are so wide-ranging and interesting. Aside from all the legal experience you build up you also end up learning about lots of diverse topics you never expected to know about e.g., how diesel engines work, how metals are warehoused, how auto repair shops should be designed, and how diabetes drugs work to name but a few topics.

Most importantly the job has enabled me to travel far and wide and meet clients and lawyers from many different cultures and traditions. The civil law and common law approaches to handling cases are very different so it is fascinating to see those different approaches in action.

The “international” in international arbitration is what I have really enjoyed. I have had cases that have required me to travel to places like Lebanon, Kuwait, Kenya, Argentina, China, Singapore and Russia to name but a few so I have been very extremely fortunate.

Q: What are two trends you see that are affecting the practice of international arbitration?

A: Firstly, international arbitrations are undoubtedly getting more complex. It seems less and less often that I work on a stand-alone international arbitration matter. More often than not there are court proceedings taking place in another jurisdiction or possibly more than one jurisdiction so you are often fighting on a number of different fronts. This requires more careful coordination and strategic input which makes cases more challenging but more interesting. Most recently I worked on a SIAC arbitration in Singapore but there had been court proceedings in the courts of the British Virgin Islands and ongoing civil and criminal claims in the courts of Thailand.

Secondly, there also seems to be more strategic challenges/obstacles being used in international arbitration. In particular, we have seen the number of arbitrator challenges (particularly in investment treaty arbitrations continue to increase). For example, Venezuela has unsuccessfully sought to challenge one arbitrator four times in the same case. Such challenges significantly delay matters. We have also noticed that even if parties are not going as far as filing a formal arbitrator challenge they are asking more questions about the choice of party-appointed arbitrators to assess whether they want to make a formal challenge.

It does bring into focus the need for arbitration practitioners and clients to be very careful in the selection process for party-appointed arbitrators. There are welcome moves which are aimed at reducing arbitrator challenges such as the 2014 IBA Guidelines on Conflicts of Interests in International Arbitration (which revised the 2004 IBA Guidelines). The IBA guidelines state, in the introduction, that “Parties have more opportunities to use challenges of arbitrators to delay arbitrations, or to deny the opposing party the arbitrator of its choice ... ” and “ … that it is in the interest of the international arbitration community that arbitration proceedings are not hindered by ill-founded challenges against arbitrators.” Certainly, diminishing the number of frivolous challenges would be welcomed by clients and arbitration practitioners alike.

Whilst certain arbitral institutions such as the LCIA have provided reasoned decisions on arbitrator challenges for some time (and formally confirmed this in its revised 2014 rules) other institutions have not done so. The ICC announced in October of last year that the ICC International Court of Arbitration will start explaining its reasons on challenges to arbitrators under Article 14 if parties request reasons. It is hoped that more arbitral institutions will follow suit and that this will provide more transparency and certainty for parties. It could, of course, end up with increasing the number of challenges of arbitrators as parties have access to a growing body of jurisprudence on the issue but that remains to be seen.

Q: What is the most challenging case you’ve worked on and why?

A: I worked for two years on a case for a respondent energy company (owned by a high-profile Russian oligarch). It was a hotly contested shareholder dispute in respect of a major metals producer in Russia. I was on a tiny island in the Maldives in the Indian Ocean when the case began. Surprisingly, there was a business center but it comprised a little hut with a small table and a rather old-fashioned computer which belonged in a different era — a memorable start to the case!

There were multiple respondent parties and the amounts in dispute ran into tens of billions. It was complex as there were many different allegations to deal with and a number of different jurisdictions involved. It was very much like a chess game and the case required huge amounts of dedication and strategic input. As with all multi-party cases, there was much ongoing coordination with co-respondents represented by other law firms.

The case, however, involved very interesting and novel questions of law in a number of different jurisdictions so despite its challenges it was a fun case to work on. I will admit there were a few sleepless nights along the way!

Q: What advice would you give to an attorney considering a career in international arbitration?

A: Do it — you will never regret it.

My advice would be not to specialize too early in a particular sector or type of arbitration e.g. construction arbitration or investment treaty arbitration. I would suggest immersing yourself in as many cases as you can and gaining as much experience as you can. From my perspective I have enjoyed having a very broad practice — the cases are all very different, which keeps it interesting.

With a career in arbitration you have to be patient, tenacious and dedicated as cases can last from 18 months to three years (and longer for investment treaty arbitrations). However, ultimately, it is very satisfying when you get a great result for your client (whether it is a very favorable settlement or an award in your favor). I have acted as counsel in international arbitration for nearly 19 years and I have yet to regret it. Thinking longer term there are also other opportunities that arise from a career in international arbitration such as acting as an arbitrator on tribunals rather than as counsel.

Q: Outside of your firm, name an attorney who has impressed you and tell us why.

A: Philip Clifford of Latham & Watkins was my supervisor when I began my career at Clifford Chance and we shared an office when I qualified into the arbitration group. He was always generous with his time and willing to take time to explain things to me, as well as providing me with some great opportunities. He also introduced me to my first pro-bono project — a death row case in Trinidad & Tobago, which was engaging and very different to anything else I had done to that point.

Most importantly, he was also a fun office-mate and we had many laughs which is an important thing to have when you are spending endless hours in the office. He went on to have a very successful career setting up and building up the international arbitration practice at the London office of Latham & Watkins, and becoming the global co-chairman of the international arbitration practice which is no mean feat. He is a very talented lawyer and a real expert in the arbitration field and, most importantly, he has built an impressive career in international arbitration whilst retaining a great sense of humor.