Brief introduction
Vikas Mahendra is a partner at Keystone Partners specialising in commercial arbitration. He previously worked with Herbert Smith Freehills (HSF) in their London, Paris and Singapore offices. He is one of the Founders of CORD (Centre for Online Resolution of Disputes) and TERES (Technology Enabled Resolution) which aim at using technology to make dispute resolution expeditious, efficient and cost-effective. Vikas is a member of the panel/list/reserve panel of arbitrators maintained by LCIA, SIAC, HKIAC and eBRAMs, among others. He is the South-Asia representative of ICC Young ADR Forum and the Convenor of Indian Arbitration Forum (IAF). He assisted the Arbitration Reforms Committee and the High-Level Committee constituted by the Government of India to review arbitration in India.
Vikas is enrolled as an advocate in India and as a Solicitor in England and Wales (not practising). He graduated from the National Law School of India University, Bengaluru in 2008 with gold medals for best all-round graduating student and outstanding personal achievement. He completed the European Masters in Law and Economics programme in 2009 where he graduated top of his class and was awarded for best thesis.
Here, we engaged in a discussion with Vikas to know more and to get insights into his journey throughout.
1. What inspired you to take up law as a career? Was it parents or an inherent interest? How did the journey to NLS start?
Answer: Frankly, my taking up law as a career was an accident. The only reason I did is because my mother was working at the branch of State Bank of India that was very close to National Law School, Bangalore. So, she saw a lot of people make demand drafts for the entrance examination and ended up purchasing an application form for me. Despite my best efforts, I was unable to sell it. It was 500 rupees for an application form at the time.
The subjects — history, economics, political science and sociology, did not really scream at me. I was born and brought up thinking I should become an engineer or a doctor and that is what I was working towards. In essence, I became a lawyer because I did not want to waste 500 rupees.
But if I had to wind the clock back now, and someone was willing to buy that application form from me, I would not sell it. I think not being able to sell the application form was one of the best things that happened to me.
2. How was your experience in law school, and what incidents characterised your time there?
Answer: Interestingly, the subjects I liked the most in college were the four subjects that I did not think I would: Economics, History, Political Science and Sociology.
That is the one thing that science students miss in their quest for objectivity; they just have no idea of the shades of white and grey and blue and pink there are. I enjoyed these four subjects the most in college because they were truly eye-opening for me, and I was blessed with some excellent faculty for each of them. Today, social sciences are what define me as a person. I think it has a lot to do with how I view law and how I view the practice of law. Hence, almost non-intuitively, the most interesting and important subjects for me in law school were the humanities and arts.
I have had various moments through college. I was, largely speaking, a diligent kid. I did attend class regularly. I slept in them once in a while; but I think that is par for the course. I was even caught photographing a teacher with my camera once. We did not have phone cameras back then; you had these smaller cameras, and they had this focus beam. Once the focus beam hit the professor straight in the eye, and he confiscated my camera.
But overall law school was a very good mix of doing a lot of work, having a lot of fun meeting many very good people and being inspired by some exceptional characters. In all, I had a very good time.
3. How was your experience in law school during LLM, and how did you find your time there?
Answer: The lack of clarity carried through even in my choice of masters. I did my masters course because I got selected and got a full scholarship.
I was decent at Economics in college and really enjoyed the subject. The professor who taught us Economics gave me a very good recommendation letter, and because his recommendation letter counted for quite something in the programme, I ended up getting it. I ended up getting a scholarship as well. The way I went at it was really, you know, with no real downside because I had already got my job offer in a top-tier firm by then.
I really wanted to explore and see what I can do. Before law school, I came from a very homogenous kind of education system. Going to law school was a real eye-opening experience because you had people from across the country, people with varied skill sets. Being in a community of people with that diversity was truly enriching. I thought if that is what one NLS in one city in India can do, you know, maybe going outside and studying would open me up to a much wider group of people with much wider interests. That was the metric for me to decide what to do and I postponed my training contract.
My biggest takeaway from the programme is not what I did, not the grades I achieved, or the certificates I got, but it is truly the relationships I made. It is the people I met and just talking about the culture in the three universities I was at. The experience truly was the most enriching part of that journey. Of course, there is the academic side of things. I mean, I do not want to belittle that because any master’s course is defined by what you do. But what truly adds colour to it and what makes it special, I think, is the environment in which you do it. It is the company of people in which you do it.
4. How would you compare your education in India versus abroad? What was the difference that was most perceptible and important to you?
Answer: I owe a very significant portion of who I am to NLS because it defined me in different and important ways. What makes NLS, and now several other universities across the country (NLU and non-NLU alike), what they are is the kind of people who come there. If you were to ask anyone, what is the quality of teaching in NLS? I do not think everyone would give it a five-star rating. I mean, we had some very good constitutional law professors, criminal law professors, etc. But there was an entire ocean of average teachers.
I do not think academic rigour defines a university as much as the opportunities it provides and how open-minded and free-thinking the universities make you. It is that analytical ability; it is that debating with your classmates and on controversial issues; it is that free spiritedness, that truly defines your time at the university. I had very hard-hitting conversations on reservations; about whether Hindi should be the national language; on dress code; on freedom of speech, and those really shaped the educational experience for me.
Comparing that with the master’s course, I think Indian universities are more academically rigorous than European universities. I have been told American universities are slightly different, but not European universities. Europe is a little bit more laid back. It is a little bit more chilled out. There, the focus, I felt, was on softer skills. They give you a base, and they will give you some common grounding as to what the theory is. It is truly up to you to take that learning and think beyond, especially for a course like the one I did, which was a Master’s in Law in Economics. They had to cater to a mix of lawyers and economists. The law was too basic for the lawyer, maybe a little too advanced for the economist. The Economics was too basic to the economist, maybe too advanced for the lawyer, and it is that balance they tried to draw.
The way it eventually plays out is great because you get a common playing field. Maybe not a very advanced level of understanding of either discipline, but that common ground gives a multidisciplinary approach and then you start thinking beyond. You start thinking about applications enabled because of this intersection of two disciplines. That is what I picked up from that university, which defines what I am doing even today.
For instance, I am doing law and technology because somewhere in the background, this ability to integrate two disciplines and create something out of it came from my master’s. In my master’s, we were talking about policy. How do you use Economics in framing policy? How do you decide whether to build a dam or whether you want to build a hospital? How do you compare those two kinds of potential options with the limited money you have? That kind of skill set is what I picked up from there, which I value quite highly.
5. How was your experience working at Herbert Smith Freehills (HSF), and how was your journey to becoming an associate there?
Answer: In an Indian law firm, at least as it then was, you are thrown into the deep end regardless of whether you knew how to swim. Many people quit law firms because they could not. A London law firm, at least at that time, gave a very structured, methodical way of learning. For many of us, it felt very slow because you were like — I can do better, I can do things faster. You would often wonder why you were doing these pedantic tasks. But they truly believed in that spirit of getting your grounding right. They wanted you to ensure that all your drafts have their i-s dotted, t-s crossed and have all their commas and full stops. Not because they were being grammar nazis (which they were) but that is not where they came from.
They looked at it from the prism of discipline. They said if you value something as dearly and check it three times, four times to get that comma and full stop correct, you are doing it right because you are giving that kind of effort to that client. While it might manifest itself in what would seem like pedantic tasks, it truly instilled a sense of discipline, which got a lot more entrenched. It also taught me a lot of skills, which have been invaluable.
For instance, drafting with precision, I remember my partner telling me — “when you give me a draft, I will look at whether I can make it a third of what it is”, because he wanted everything precise and to the point. You must have heard that saying — “I wrote you a long letter because I did not have time to write you a short one.” And that is so true. Because if you really need to condense and crystallise and say it in simple words and communicate effectively, you need to spend that time. The fewer words you use, and the more concise you are, the easier it is to get through to the other person. And that skill of drafting; of concise drafting is, I think, is a key skill that I picked up. That is sort of ingrained in me through the rigorous process, what some might say is a slightly hierarchical process because there is a trainee, a junior associate, a senior associate and a partner, but multiple layers of review somehow give you that refinement in everything you do.
I was extremely lucky to qualify for Singapore, where it was a smaller team. I did much more at a much earlier stage in my professional career than typically large law firms would allow. For instance, I was cross-examining experts in my third-year post qualification, which is almost unheard of — but that was because I was able to impress and make a mark given the size of the team. It was that opportunity nestled with this fairly structured learning which was a really good mix of two worlds that I had. I had a fantastic time at HSF.
6. What would you suggest is the difference in terms of the way India practices law and the way they practice? What would you say are certain things we should pick up from there?
Answer: I am not one to say that what the white man does is always better than what we do. I think there are things we do which are better than them, there are things they do that are better than us. It is just being humble enough to accept what is good and take it for what it is.
I think drafting is certainly something that we can pick up. When I came back from Singapore, for instance, in reviewing drafts for my colleagues here, at least the more junior colleagues, they come in, take templates, and sort of use templates without thinking why something is necessary. As a result, brevity and conciseness are often lost because the template has said it in 20 different ways. The templates would make you believe that saying the same thing in 20 different ways is the only way to make that point. That is something I have had to fight the hardest when I have come to trying to change the kind of drafting there is, at least in my work. There is also so much Victorian language: “It is humbly submitted that” at the beginning of every line; “it is showeth”! What does showeth even mean? That is the kind of language I am trying to eliminate in at least the work I review.
The other thing I focus on is removing all adjectives from drafting; at least in a commercial context. Maybe in criminal work, there is room for a little more colour. In commercial drafting, I firmly believe that the more flat you are, the more true you are in every word and syllable you utter, and the better your chances of the tribunal or the court taking you seriously. The more you say, “it is fraudulent, malicious and outrageous”, the less likely the tribunal believes what you have to say. Especially while using expressions like fraud or malice, where you are imputing intention into a context where ordinarily intention is borne out of documents, you would only want to say it if you are 1000% sure and are able to prove it, and where it is relevant. This, for instance, is where there is an element of fraud, which is fraud, the way it is understood in the Contract Act, or the Penal Code. That is fine. That is what you need to do. But that is not how Indian drafting is. Right? Indian drafting is a lot of these really colourful, big words. And that is another thing that I have very actively tried to limit, at least in my work.
But I think there are certain things that I have picked up here, which I could not have done internationally, which is the ability to handle the kind of volume necessary in some cases. In India, you are trained to distil a lot of information and get to the core of it far more quickly. In a big international law firm, you have the luxury of doing two or three matters at a time. In a typical litigation setup in India, you are doing 50, 100 or 150 matters. You do not have the luxury of working on a statement of claim for three months. I think it nudges you to say and understand things quicker, to get to the meat of things much quicker. I think that is a huge skill set, especially when dealing with volume.
I am now back to doing very low volume, high value work, but even here this is proving invaluable. Particularly in larger international arbitration matters, which are very voluminous in documentation, I find myself able to sift through the documents much quicker than my counterparts, because that skill is almost ingrained.
So essentially, there are skills I can import from my practice internationally, and there are skills from here that I will transport when I do work internationally. It is a two-way street.
7. What were the difficulties and most essential lessons you encountered in your journey from being a law student to a partner at Keystone? How would you define your journey?
Answer: The one thing that stuck with me because of college, which continues to guide me through my professional journey, is believing that things are possible.
Just to give you some perspective, even though I wanted to become an engineer or a doctor, I did not write IIT-JEE. You would think, okay, why would someone who wants to be an engineer not write IIT-JEE? I was reasonably good at academics at the time, but I did not write it because I did not have the confidence. After all, I thought, “Oh, it is for geniuses. You are not that. What are you even aiming to do?”
But in college, I gained the kind of confidence to feel that, you know, even the people who are doing the best of things, who are at the peak of their profession, are people drawn from you and me. I realised it is about what you do with your time; what you do with your life that defines whether you become them. The alumni who were achieving great things in their professional careers were all truly inspirational. All of them started doing simple things right. This could be doing well in academics, getting published in good journals, qualifying for prestigious international moot court competitions, getting into law firms of repute, etc. It is about believing that you can, and then you will find a path to achieve it. Sometimes, I still question myself and wonder whether I am good enough, but somewhere in the back of my mind, I am like — “maybe it is possible, maybe it is not out of reach”. That trying to attempt to do it is what I learned in college, which has carried through in my professional journey as well.
Let me be clear. There are of course challenges. There are privileges that cannot be wished away. Not everyone starts at the same level. For instance, I come from a socially backward community — I am a Scheduled Tribe. This has been a stumbling block at many steps of my life, including most recently, while marrying against very firm caste-based opposition. Even in my professional life, people continue to ask me for my “surname”. That some Judges, invariably drawn from the higher castes, view people differently based on caste, is an open secret, and anyone who practices in court will confirm this for you.
These privileges can take myriad forms — caste, gender, religion, class, NLU/non-NLU, Tier 1 city/non-Tier 1 city, English native/non-English native, etc. It is unfortunate that the less privileged need to do more to overcome these roadblocks, but I think with the belief in yourself, it is possible. I hope more people are able to find that strength and confidence in them to help overcome these barriers. There are people from all of these underprivileged backgrounds who have now reached some position of importance across disciplines and are willing to help/inspire/guide. So, every passing year things are getting that little bit easier. Just have faith and do not give up.
8. You are the Founder of the Centre for Online Dispute Resolution and regularly contribute to the literature on ODR, and an Advisor for TERES, a technology platform that facilitates arbitration. What do you see as the future of arbitration? Is it ODR or an AI-assisted arbitration?
Answer: I think we are in for a sea of change. When a lot of us think about arbitration, we really think about, big corporates fighting international disputes in fancy five-star hotels. But if you think about alternative dispute resolution (‘ADR’), the core of that flexibility, the cost-effectiveness, makes much more sense for low-value disputes. These low-value disputes cannot go to court. They are the people who really need an alternative. The bigger players can manage the system with the resources, even if ADR is not there.
When I came back from Singapore, we started CORD (Centre for Online Resolution of Disputes). The idea being how can we bring the best practices in India and internationally and make them available for low-value disputes. How can we upskill people to resolve these disputes themselves? Better still, how can we empower people to decide these disputes?
Essentially, how we can upskill bankers, insurance brokers, and homemakers to be decision-makers. Decision-making requires basic skills like listening, comprehension, logic, and analysis — not necessarily a PhD in law. It is about how you empower these people to enable dispute resolution for the masses at affordable price points. In some senses it also meant that you can now use the lack of privilege and turn it on its head by encouraging more non-Tier 1 people, non-English native people, people from across caste, religion, gender, class, etc., to become dispute resolvers. That truly is what we are doing. If you think about the journey of ODR, even in the last two or three years, we have resolved at least 100 times more cases than arbitration has resolved since its inception. That is not an exaggeration.
If you take some of your bigger established institutions, they, in the 50-100 years of experience, have resolved about 20-30,000 cases. In contrast, you ask any ODR player — that is three or four months’ worth of cases for them. And that is just the tip of the iceberg because the community has not embraced ODR as fully as possible. What I see happening in the next few years — reflected most recently with what SEBI has done with mandating ODR for securities market transactions — is that many smaller value contracts will start adopting ODR as that default dispute resolution mechanism. I do not anticipate a gradual, incremental increase. I think the change will occur exponentially in the next two or three years.
Also, the other thing that we wanted to achieve was greener arbitration. When I was in London, and we were doing a matter, there were eleven respondents on the other side, and we had a fairly chunky submission. We had to give a copy to everyone. I think in doing so we cut down an entire rain forest. Literally, there was a room, which is 10 by 15 feet in dimension, filled three-fourths in height with box piles of paper, which no one would likely read. That is arbitration every day.
When people say we want to make it greener arbitration, I say, you know, you cannot just keep saying greener arbitration. You need to give them an alternative. That is some of the philosophy behind TERES: Technology Enabled Resolution. TERES attempts to use technology to reduce your carbon footprint. It also seeks to do much, much more.
TERES is also an attempt to make arbitration more efficient and reduce costs — because the cost of some of these high-value disputes is outrageous. In India, there are so many practices that we can do to improve efficiency — like transcription, which is a very, very dear project for me. It is an avenue where you achieve almost 5x efficiency just by using technology. I will give you an example. We were doing a matter where there were two Tier 1 law firms on both sides, three retired Supreme Court Justices as arbitrators, and one Senior Counsel on either side arguing the matter. They had budgeted 10 days for the hearing, and they completed it in three because of transcription. We achieved about two crores worth of savings in that matter alone by using transcription. That is why, if you think about the time and the cost, adopting technology is a no-brainer. That is where we are looking at how can you use technology to bring that kind of efficiency.
How do we see this shaping the future of arbitration? I think we are moving towards paperless arbitration very soon. I know there are a lot of very senior people still prevalent in the arbitration circuit. I think either they will learn to adapt or just move on. I will give you an example. In the last 2 years, I have done about 5 international arbitrations. All of these were done entirely virtually; all the bundles were entirely electronic. There is no one using any physical paper. No one travels to attend that hearing anywhere. In most of these matters, the arbitrators were quite senior — above 65-70. This shows that even the older members are adapting. This was the same experience across continents — whether it was an arbitration seated in London, Dubai, Doha, Delhi or Singapore.
Indian courts are leading the way with e-courts, or the e-filing systems now being mandated. Of course, there are hitches — such as you saw with the Kerala Bar Protests. But I think these are stumbling blocks. The momentum is to move towards technology adoption, to make processes efficient and greener.
But paperless is only the start. I will give you a couple of instances of where we are in the process of using artificial intelligence: we are using AI in document review, for instance. Assume an arbitration with 20,000 documents; you need to go through them quickly. Imagine a ChatGPT kind of program that is tailored for arbitration; obviously, with the confidentiality, privacy, and secure boundaries necessary in a case like this. Imagine asking those documents the questions and the documents answering your questions. That is a product we are rolling out shortly.
9. The discussion around ODR is often characterised by a narrative that goes along the lines of ODR as a low-ticket matter mechanism and a substitute to personalised institutional frameworks? How far do you find this narrative justified?
Answer: I think the kind of impression I gave with arbitration, you imagine only high-value disputes, but not low-value disputes. Somehow, in ODR, people imagine only low-value disputes but not high-value disputes. Frankly, both ODR & ADR are useful for both; I mean, they are just ways of resolving. You can use it for high value, you can use it for low value.
To your question of whether we are replacing smaller institutions or personalised services, I think there are insufficient institutions to resolve disputes. If you think of the low-value disputes, certainly the kinds of disputes that ODR is catering to today, they do not even have an alternative. We are talking about, for instance, rental disputes, banking disputes, or even e-commerce disputes. There is simply no other way. When people go to consumer court, when people go to RERA, you know, what the time and experience there is. It is not achieving the objective they are trying to achieve to.
Essentially, we are trying to fill a gap in a system. We are doing as much as possible to bring the personal element to it. So, for instance, when mediation happens on ODR, the mediators are still trained to try and impart the same kind of empathy, the kind of sympathy that they could do in a physical setting. This is obviously limited by the ODR medium, but the effort is still there. Is it 100% possible? No, it is not. But do you need a Rolls-Royce to get from Point A to Point B? No, sometimes a cycle works. And that really is the idea there as well.
Now, consider what SEBI is doing and how ODR influences that ecosystem. People have talked about the institutionalisation of arbitration for donkey’s years in India, but it is not happening. And what SEBI is doing is taking that lead to institutionalise. It is actually a first step in a move towards institutionalisation. What they are doing is, instead of your NSE or a BSE with its own limited panel of arbitrators and their own processes resolving disputes, you are giving it to someone more independent and neutral.
If tomorrow, therefore, NSE is involved in a dispute, you are not putting them in a difficult position to resolve that dispute themselves. You are giving it to an independent institution. It is like specialisation. Amongst doctors there is a paediatrician, oncologist and so many others. It just happens as the discipline evolves. As knowledge evolves, certain people do things better, and it is recognised. To think that a trading platform will also be an expert dispute resolver is, I think, expecting too much out of one entity. It is about trusting different people to play a role, to specialise and do that much better than one institution trying to do everything. That is where I think the ODR equation comes in.
10. In your experience in the legal industry, from your time at NLS to practising law, what aspects of the legal industry do you cherish the most?
Answer: Critical thinking is a key part of being a lawyer. It is definitely something I truly cherish. Problem-solving is another aspect. Different lawyers do it differently. Drafting lawyers anticipate problems and try to solve them in advance by building safeguards and clauses. Critical thinking is integral to all of this because you never stop questioning. Unless you continue that, you sort of end up becoming embedded in biases; embedded in systems, without really seeing, what we can do better.
I think these two things, problem-solving and critical thinking, are integral to being a lawyer. It makes lawyering, as a community, a potential agent for change. If you look at history, look at the independence movement, if you look at politics, NGOs and the number of lawyers there are, it is really these attributes that have carried them forward. I think it is these two attributes that I cherish, most deeply, because I enjoy both elements of it and also because I think they are truly the ones that can drive us towards making ourselves better and more efficient.
11. Could you share advice for our readers that would help them in their journey as corporate lawyer?
Answer: I think corporate law as a discipline has evolved so much over time that it will be difficult to give one advice that will hold good across board. But at a generic level it is about focusing on the skills I talked about. With the advent of tools like ChatGPT, these skills are more important now than ever. Because a lot of what you would have done earlier as a lawyer — like drafting, research, etc., AI engines are already doing as well as humans. But what these engines are not doing is asking questions like: What is the underlying problem that we need to solve? Why are we doing what we are doing? How will doing this solve the problem? What else can we do? etc. For students joining the profession now, the skills I talked about earlier —critical thinking and problem solving — will help them stay relevant because it will help them ask these questions. Everyday in a corporate law firm, everyday in a disputes practice, those are exactly the questions you will be asking. What you should really focus on is to try and build on those core sets. I know these are very abstract terms to follow.
You may ask: “If you tell me, “write a paper”, I understand. But what do you mean when you say develop critical thinking?” Let me explain. Even when you are writing a paper you can go about it in a number of different ways. You can simply restate facts, or you can analyse, question and challenge. When you are looking at a moot court competition, you can simply regurgitate what is in the fact sheet and what the case law states, or you can try to get to the root of the problem and find a solution. It is about how you do what you do that defines whether you are acquiring that skill. Whether you achieve it through mooting, whether you achieve it through article writing, or whether you achieve it through internships, it does not matter. Focus on these skill sets.
When you are interviewing, that is the kind of thing you should be able to portray, not the number of internships you have done, not the kinds of places you have gone to and the moots you have done. You should be able to demonstrate your ability to critically think and problem solve. I believe that is the kind of skill set that recruiters will value.
12. At what point do you think legal research is exhausted? Would you like to share your research methodology with our readers?
I do not think legal research is exhausted even while you are arguing the matter. That is the beauty of legal research. Even when you have all of your arguments in place and you are presenting that argument, if there is a question from the tribunal or the court, you are trying to analyse: why that question? Is there some way I can address that question? Even at that point you will continue to research. Of course, there are limitations of feasibility. I mean, you will have to prepare your memo of citations, and you will have to get your cases together before you can go. I do not think it is even achievable for you to exhaust your research. If anyone asks you to give an exhaustive analysis of something, it is asking for the impossible.
Legal research actually starts well before researching a particular proposition. It is about having a general understanding of the field and the kind of solutions that are plausible. That comes with regular reading and following legal trends. When you are doing specific legal research, see if the question you need to address has a direct answer. If not, are there some principles you have identified that can help answer the question? You then start looking at whether these principles have been applied to a fact situation identical or similar to yours. That is the basics that you will have to cover. Beyond that, you can continue to research forever, and you will probably find something everyday you do something.
