Over 25 years of experience in international arbitration acting as counsel in both commercial and investor-state cases, and as arbitrator in ICSID, PCA, NAFTA, ICC, SIAC, KCAB and LCIA arbitrations.

Cavinder is also vice-president of the SIAC Court of Arbitration, a governing board member of ICCA, former vice-president of the Asia-Pacific Regional Arbitration Group, and is on the World Bank Sanctions Board. Cavinder studied law at Oxford University and Harvard Law School. He is called to the Bar in Singapore, New York and England.

What qualities make for an effective arbitration practitioner in today's environment?

A global perspective is vital in today’s environment. Our area of practice sees us constantly dealing with international and cross-border situations, whether that be in the commercial arbitration space or dealing with investor-state disputes. Understanding how things may be done differently in diverse cultures and appreciating the distinguishing nuances enables counsel to understand and present evidence better and arbitrators to come to fair conclusions. Of course, this is in addition to the foundational requirements of integrity, an unquenchable thirst for knowledge of the law and life, a strong dose of hard work and a healthy appetite for a challenge.

Could the rise of virtual hearings lead to a greater mixing of different legal systems and arbitration institutions?

Even before virtual hearings became so common, international arbitration had already demonstrated its appeal to a host of different legal systems and resulted in a growth in the number and strength of arbitral institutions. Having said that, the rise of virtual hearings will no doubt fuel a continued growth in that direction. In many situations, the barriers of excessive costs, inaccessibility and problems with scheduling are being overcome by virtual hearings.

The key now though is for the arbitration community to use virtual and in-person hearings flexibly so as to achieve optimal results. An arbitration does not have to have either virtual or in-person hearings. In that one arbitration, some hearings can be virtual and others in-person. This “mix-and-match” approach is not new. Pre-pandemic, it was normal for procedural or pre-hearing conferences to be conducted by telephone conference, with the substantive evidential hearing taking place in person. Video hearings can, in some cases, be very effective for hearings that do not require witnesses. Examples would include some jurisdictional hearings and applications for early dismissal. Again, arbitrators have to consider carefully whether the video hearing will be appropriate for each hearing but the intelligent use of video hearings will allow parties to rediscover the flexibility that arbitration has always promised.

Some practitioners report that, post-pandemic, arbitration costs are deterring parties from bringing matters. Is this your experience?

This is not my experience. Costs are of course a factor and there is no shortage of writing on the upward trend of costs in international arbitration. However, there is today a much broader range of choice for a party looking for arbitration counsel. This necessarily generates competition and there are many good law firms offering strong expertise in the area at a reasonable cost. Of course, the top firms and best lawyers will always command a premium, but my experience has been that parties can find very good counsel at a reasonable price point. I certainly do not think costs alone deter parties from bringing matters in arbitration. Having said that, it is also a good thing for parties to consider whether the amount of their claim is worth spending time and money on an arbitration. Such consideration should motivate parties to try and resolve their disputes through mediation or negotiation and this is not a bad thing. What would be regrettable is if parties have to bring a claim but cannot afford decent counsel. As an arbitrator, I have seen a number of younger practitioners sometimes in new law firms doing an excellent job and seeking very reasonable cost awards at the end of the case. I have also seen the appetite of litigation funders to contribute to the arbitral process. This gives me some cause to believe that parties do have adequate options to manage the issue of costs.

What difficulties do fixed fee structures present for arbitration practitioners?

Fixed fee structures are problematic, but not just for arbitration practitioners. They bring peril for the parties, too. Dispute resolution work is inherently unpredictable. How much work is needed can change quickly whether that is because of the tactics of the opposing party, sudden unavailability of a witness or the need to apply for urgent interim relief. As a result, a fee fixed at the beginning of proceedings can be unfair to diligent arbitration counsel. On the other hand, if parties manage to persuade arbitration counsel to agree to a fixed fee, there is always the hazard that they may end up disincentivising their counsel from going the extra mile for them. Arbitration practitioners will of course be professional in their conduct. However, parties would be better off recognising that litigation is dynamic and allowing their counsel to have a discussion with them if fee estimates are exceeded. This will avoid demotivating counsel and tends to lead to better results for the parties.

Do you have any tips for counsel on how to use an expert team effectively?

My best experiences with experts have been when the experts were subjected to a rigorous testing of their views, after they had acquired full knowledge of the case. Ideally, this should not be led only by lawyers but by subject-matter experts who work for the party. Often, the employees of the party will have great experience with how things actually work and are in a position to test an expert’s views robustly. I have seen experts learn a great deal from the process. It is important that this not a process of coaching the experts on how or what to say. Rather, this is a process of rigorously debating the logic and the analysis of the experts.

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

I am a firm believer in the value of confidentiality for commercial arbitrations. Confidentiality of arbitrations was a very important factor in the growth of arbitration. Commercial people very much value the option of dealing with some of their disputes privately. The situation is very different for investor-state disputes. Such disputes have a public element because states are involved and transparency is incredibly important. As a bare minimum, the existence of such cases should not be kept confidential and the awards from such cases should, in my view, be made public as a matter of course. I am not convinced that there is a need for every step in the proceedings to be made public. However, each decision of the tribunal should be public, whether that is a decision on a procedural matter, a jurisdictional challenge or interim relief.
In your opinion, should younger lawyers specialise or keep a broad practice when starting out in their career?

I do not think young lawyers should be too concerned about this question. Professional life tends to unfold itself for each person. Some will have an early opportunity to specialise. Some will not till much later in their careers. Both routes can lead to a satisfying career. The key it seems to me is to consider the opportunities that present themselves and to make the best decision one can, knowing that either way, if one is reasonably intelligent, very hard working and fully committed to the professional endeavour, a fulfilling professional life is to be had.