Advocating Across Borders: Deepak Raju on the Practice of International Law

1. Please introduce yourself to our readers.

I am an International Disputes Lawyer, currently working as Counsel at Sidley Austin, Geneva. My practice includes international commercial arbitration, international investment arbitration, international trade law, and other areas of public international law. I have a particular focus on complex cross-border disputes where governments or businesses face geopolitical risk. I have appeared before a variety of forums including the International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS), panels and the Appellate Body of the World Trade Organisation (WTO), and international investment and Commercial Arbitral Tribunals.

I am qualified as an Advocate in India and as a Solicitor in England and Wales. I hold an undergraduate law degree from West Bengal National University of Juridical Sciences, Kolkata, and an LLM from Cambridge. Before pursuing an international career, I worked with two leading Indian law firms in Delhi and Mumbai. I continue to work on a fair number of India-related matters, along with matters for clients from around the world.

2. Having represented entities such as the African Union, Qatar, and Airbus in landmark disputes, what have been your most defining takeaways from working at the intersection of law, diplomacy, and global policy?

It is fair to say that my work often intersects with global policy and diplomacy. When we appeared for Antigua and Barbuda before the ICJ, it was the Prime Minister of the country who personally led our delegation and made our opening statement to the court. In another matter, where I handled oral arguments on the “national security exception” before a WTO panel, we were led by the spokesperson for the Foreign Ministry of our client, who later went on to become the Deputy Foreign Minister of her country. Appearing against us was a Senior Minister of the Government on the other side.

While there is an intersection between law, diplomacy, and policy in these disputes, I am always mindful that I am a lawyer and my domain is the law. It is not for me to frame policy for my clients or to engage in diplomacy on their behalf. At the same time, it is important for me to understand the policy positions and long-term objectives of my clients (not just their interest in the outcome of one dispute) to ensure that the legal strategy is congruent with those interests. This is true whether I am representing a government or a commercial actor. This would be my first takeaway.

Second, and relatedly, these disputes involve complex facts outside the domain of a lawyer’s expertise. As such, a lawyer needs to be willing to listen and learn. During the Airbus disputes, we leaned heavily on engineers and financial experts. It was our role to learn what they had to offer, translate it to terms that an adjudicator could understand, and then integrate it into the legal argument. So, the second takeaway would be the need for an appetite to learn new and complex things.

Third, clients often do not come to us saying “we have an international trade problem” or “we have an international arbitration problem”. Often, they come to us saying “we have a problem”. It is then for the lawyer to look at the various tools of international law and see which of them fit the problem. My ability to work across international trade, international commercial arbitration, international investment law, and other areas of public international law — and Sidley’s strength in all these areas have been a true asset. In many instances, we have been able to look at a complex problem and devise a multi-forum strategy that splits the problem into bite-sized pieces. This inter-relatedness of various areas of international law, and the “toolbox” approach would be my third takeaway.

3. Climate change-related disputes are becoming increasingly prominent. How do you view the evolving role of international courts and tribunals in addressing global environmental challenges?

A few years ago, there was a debate about whether climate change should be the matter of litigation or political negotiation, as though the two were mutually exclusive. One side wanted political negotiations to yield comprehensive rules to tackle climate change. The other side wanted to apply existing rules through litigation. At the time, my colleagues and I co-authored an article, which concluded with the following words:

Physicists have long been searching for a “unified field theory” or a “theory of everything”. While that laudable effort continues, falling apples continue to be explained, coffee continues to be brewed, cars continue to be driven, and humans continue to travel in space, leveraging the existing laws of physics.

In other words, we thought the two efforts (negotiating new rules and litigating under existing ones) were not mutually exclusive, and ought to be pursued in parallel.

Since then, the ICJ and the ITLOS have gone on to issue important advisory opinions on climate change. We represented the African Union before ITLOS and Antigua and Barbuda before the ICJ in these proceedings. The advisory opinions unequivocally clarify that existing rules of international law require States to take immediate and concrete action to tackle climate change. These opinions are bound to influence the behaviour of States going forward — in domestic and international policy, in negotiations, and in further litigation.

Where States fall short of their obligations, it is likely that other States or other stakeholders will bring cases before international and domestic courts. We are already seeing a rise in such actions before domestic courts.

4. You have handled cases across multiple international forums like WTO, ITLOS and ICJ. How does advocacy strategy differ between trade, investment, and environmental dispute mechanisms?

Let me first talk of the shared elements. All of these adjudicators identify, interpret and apply international law. All of them deal also with complex questions of fact. As such, the core of the exercise — crafting legal arguments, gathering and presenting evidence — remains the same.

The differences lie in the procedural peculiarities of different forums. For instance, WTO panels and the appellate body tend to have a large part of the hearing dedicated to a question and answer (Q&A) session. The responses from a party tend to elicit immediate responses from the other party and/or follow up questions from the adjudicator. This is unusual before the ICJ or ITLOS, where things tend to be a bit more formal.

Cross-examination of witnesses and experts is a core part of a hearing in commercial or investment arbitration cases, while this is unusual in WTO cases.

ICJ and ITLOS hearings are public, WTO hearings are only sometimes public, and arbitration hearings are almost always confidential. Hearings at the WTO and Arbitral Tribunals tend to be a bit less formal with all participants dressed in business attire and speakers sitting down while addressing the adjudicator; ITLOS and ICJ have Judges in robes and lawyers speaking from a podium. Of course, one has to adjust the style of advocacy and the extent of formality to the forum before which one appears.

5. As a counsel in complex cross-border disputes, how do you balance the competing expectations of clients, States, and institutional stakeholders while maintaining ethical consistency?

The ethical obligations of an international lawyer are largely similar to those of domestic lawyers. There are times when a number of stakeholders are interested in the same outcome and work together. For example, multiple States may bring a dispute as co-complainants. Sometimes, a government may bring a dispute in furtherance of an affected commercial entity or industry. Sometimes, we work closely with multiple stakeholders. However, at the outset we establish the identity of our client and ensure that everyone involved is aware of this. The usual set of attorney-client obligations are owed towards our clients.

There is no formal international bar. So, lawyers practising in this area are governed by the ethical requirements of their domestic bar.

6. You have worked in diverse jurisdictions and cultural settings. How important is cultural and contextual sensitivity in effective advocacy before international tribunals?

I studied law and obtained my Bar qualifications in India and England & Wales. I have worked in Switzerland for over a decade. I have also worked for brief periods in France and Singapore. While these jurisdictions are quite different from each other, my work outside India has always been with international firms (rather than French, Swiss or Singaporean domestic firms).

International courts and tribunals tend to be “international” in their “culture”. For example, while the ICJ is seated at the Hague, the ITLOS in Hamburg, and the WTO in Geneva, one would not think of them as Dutch, German or Swiss in their culture. Each institution has a rich history, which shapes its own practices and culture. International Arbitral Tribunals draw from a rich body of arbitral practice which is culturally international, but each arbitrator tends to bring bits of their own legal training background and culture to the process.

The true need for cultural sensitivity arises while dealing with clients, witnesses and experts. Take witnesses, for example. Your witnesses hold a story, which you want them to share with you in all relevant details. That takes trust. During the course of witness preparation, you get to know the witnesses very well, and the story emerges piece by piece, and often in a non-linear and chaotic fashion. Building that trust takes cultural sensitivity, among other things. On the other hand, in cross-examining the other side’s witnesses, it is sometimes important to understand the cultural context — for example, are they likely to omit some facts they consider “shameful” for cultural reasons?

More broadly, commercial relationships — or geopolitical interactions — occur within a cultural context. As a lawyer, when you are looking at a relationship that went wrong (e.g., a breach of contract or treaty), a key question is why. Sometimes the answer to that question lies in the cultural context. For example, one culture may consider it perfectly reasonable to renegotiate contractual prices of goods when there is a price fluctuation in the market, while another might consider that to be entirely unacceptable. While the permissibility of a negotiation would ultimately need to be resolved on the basis of what the contract says, understanding these differences helps one appreciate why the parties maintain the positions they do.

One of the best compliments I ever received was from the ambassador of a client government. After listening to me speak at a hearing in a case involving geopolitical sensitivities, he asked me if I had spent a lot of time in his country. When I said I had never been there, he said, “unbelievable. You truly spoke the heart of our people”. This was simply because I had spent a very long time researching the underlying issues between the parties, and the history and geopolitics of the region.

7. How do you assess India’s changing role and credibility in international dispute resolution?

India has always been an active participant in international lawmaking and in international adjudication. From the Right of Passage case, 1960 SCC OnLine ICJ 8 against Portugal in 1955 to the Jadhav case in 2017, 2017 SCC OnLine ICJ 1, India has been a regular player before the ICJ. At the WTO, India is one of the most frequent users of the dispute settlement system, as a complainant, respondent, or a third party.

With the size of India’s economy growing — India now ranks among the world’s top five economies by gross domestic product (GDP) — international dispute settlement, especially for economic disputes, is a matter of extreme importance for India and Indian companies.

In the recent years, India has cancelled a number of bilateral investment treaties and has generally been averse to investor-State arbitration. While this position accounts for the concerns of a capital importing country, it needs to be revisited in light of the strides that Indian companies are now making abroad. At present, Indian companies abroad are often left without treaty protection and/or recourse to arbitration, unless they structure their investments carefully through third countries. It is welcome news that the Indian Government is conducting a further review of its model Bilateral Investment Treaty (BIT), and I hope that the review will result in a solution to this concern.

Similarly, at the WTO, after the appellate body stopped functioning (due to a lack of consensus among the WTO members on appointing new Judges to that forum), India has not joined the Multi-Party Interim Appeal Arbitration Arrangement. This means that if India brings a WTO dispute against another WTO member and wins before a panel, the other member has the opportunity to block the finalisation of the result through an appeal “into the void” (the appeal cannot be resolved until the appellate body is reconstituted). This prevents India from bringing — or credibly threatening — WTO dispute settlement when other members adopt unlawful measures. Given the current state of global geopolitics and trade, India should consider securing itself a guaranteed route to binding WTO dispute settlement.

Finally, there is also a role for Indian companies engaged in international business. They are often well-placed to benefit from investment treaties (if they are carefully structured) or seek remedies before Arbitral Tribunals and domestic courts applying foreign law or international law. We recently represented a large Indian company faced with anti-dumping and countervailing duties in the United States. They challenged these duties before US courts under US law; in doing so, we were able to leverage WTO law on dumping and subsidies.

With the current US tariffs and the resulting trade diversions, Indian companies are soon likely to face barriers to their exports (both tariff barriers and regulatory barriers) in third countries. They are also likely to face enhanced competition from the diverted exports from other sources. Additionally, tariffs or regulatory barriers may make it impossible or unduly burdensome for Indian companies (or their foreign counterparties) to honour contractual obligations, triggering commercial disputes. Further, with geopolitical risk on the rise, Indian investors abroad are also likely to run into troubles with foreign governments.

Given the rise of risk on all these fronts, it would be useful for Indian companies — not just the Indian Government — to enhance their engagement with international law. Risk mitigation strategies will often require a creative blending of different areas of international law.

8. What drives your passion for public international law, and what has kept you inspired through the intellectually demanding world of global dispute resolution?

My love for international law began with moot court competitions, especially the Philip C. Jessup International Law Moot Court Competition. I participated in Jessup twice from India, and then a third time during my LLM at Cambridge. A chance encounter with Dr Pemmaraju Sreenivasa Rao (former head of India’s Legal and Treaties Division, member of the International Law Commission, and an ad hoc ICJ Judge), who went on to become a dear friend and mentor, assured me that this was a field in which one could actually build a career.

The thing that I love the most about this field is the sheer diversity of disputes one gets to handle. My first case was about cotton subsidies. Then I moved on to learning everything I could about Airbus and Boeing planes. From there I have gone on to work on cases involving sale and purchase of solar panels, national security and allegations of terrorism, distribution contracts for rice, sports media broadcast piracy, and climate change, just to name a few.

In the course of these cases, I have had the opportunity to meet very impressive individuals from a wide variety of fields — engineers, behavioural theorists, salespeople, nuclear scientists, military leaders, activists, diplomats, ministers, a prime minister, and a president.

Throughout my career, I have also been fortunate to have generous mentors and excellent colleagues, with a great deal of overlap between the two categories. One of my favourite aspects of my work is the long and intense brainstorming sessions we have as a team. The excitement of a team coming together to solve a complex problem, a puzzle, is an important part of what keeps me going.

9. What advice would you give to Indian law students who aspire to enter fields like international arbitration, trade law, or investment law, especially those coming from non-elite institutions?

First, I would caution against seeing each of these areas as isolated silos, and against hyper-specialisation. We are, ultimately, problem solvers. Having as many tools as possible at your disposal would make you a better problem solver for your clients.

Second, this profession requires sustained curiosity and willingness to learn continuously. This is true with respect to new developments in the law. But, it is equally true with respect to complex facts of each case that comes your way. One cannot do justice to a subsidies case at the WTO, for example, without understanding the basics of economics. In litigating a climate dispute, one would need to develop a good grasp over climate science. You never know what field your next case will require you to learn about.

Third, this profession is very much about people and people skills. International disputes are usually handled by large teams. You need the trust of your colleagues, clients, witnesses, experts, and ultimately, the adjudicators, to do well. So, while technical legal skills are important, they are not enough.

Fourth, and perhaps most importantly, careers are long. While I do not want to think of certain institutions as “non-elite” (as you put it in the question), any brand disadvantages related to one’s university can be overcome in the medium to long run. Ultimately what matters is the knowledge and skills one develops, the relationships one cultivates, and the trust one earns, over the long term.