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Intro: Welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration Practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started. 

Rebeca: Hello, everyone, and welcome to another episode of Arbitral Insights. Today, I'll be your host. My name is Rebeca Mosquera, and I am an attorney at Reed Smith here in New York. And today, we have the pleasure of speaking with an incredible guest who has made remarkable strides in the world of international arbitration and ADR. Joining me is Esha Kamboj, attorney-advisor for the Asia-Pacific Region Team Commercial Law Development Program of the U.S. Department of Commerce. Esha, welcome to the podcast. 

Esha: Thanks so much for having me, Rebeca. Thank you for the lovely introduction. It's my pleasure to be here today. 

Rebeca: Well, let's dive in into things. And to kick things off, Esha, could you share a bit about your background and how you got into international arbitration? What was your practice focus when you first started? 

Esha: Yeah, of course. So my background really is in international arbitration and private practice for about seven years before moving over to the U.S. government. And how I got into international arbitration is, I think, an interesting story. I grew up in the Bay Area in California with immigrant parents from India, and I had kind of the pleasure of having a lot of family all over the world. And so each of, you know, whenever we would go on a family trip, it would be to visit a different family member in a different part of the world, whether it was in India or parts of Europe. So I really had the benefit of growing up with a very global experience in terms of meeting different types of people, learning about different cultures, foods, etc. And so I was always very much interested in kind of international policy, international law, and focused my undergrad degree in global studies. And then, you know, shortly thereafter, did the teaching assistant program in France via the French embassy. So I taught English in a high school just outside of Paris for about a year prior to going to law school. And, you know, I didn't really know too much about international arbitration before law school. There aren't a lot of lawyers in my family. But I learned a lot about it when I went to law school and had really focused my curriculum on international law. And it really stuck out to me as something that was incredibly interesting. You know, I wouldn't say a newer area of law, but definitely younger than many other practices. And really pursued firms during on-campus interviews that had dedicated international arbitration practices within the firm. So that kind of led me to Norton Rose Fulbright, where I did my summer internship as well as my first year in their New York office before I moved to Washington, D.C. And over the course of the next six or seven years, I did a lot of international arbitration, including investor state disputes, commercial arbitration, and a lot of large-scale kind of commercial litigation. So that was the private practice part of my career and how I kind of transitioned and got into international arbitration in the first place. 

Rebeca: That's fascinating, Esha. I mean, you've basically grown to some of the most, maybe we call it epicenters of where, you know, international arbitration develops today. So you established yourself in private practice, right? But what inspired you to make the transition to your current role? And was there something specific that drew you from private practice or the governmental side of, you know, international arbitration and ADR? 

Esha: Yeah. So, you know, as I mentioned, I've always been interested in foreign policy, specifically like public international law. But when I was at the firm, you know, I never really had much thought about transitioning into a government role. I think it really came to a head when I was in my sixth and seventh year when I was kind of a senior associate and I had to decide at that point if I wanted to pursue partnership at the firm, which would entail me starting to build my book of business, doing a lot of networking, doing a lot of training to be able to apply for that role, or if I wanted to kind of transition out of private practice and maybe try something new. I knew I've only ever been in private practice and so I didn't really have a lot of experience as to what other international arbitration adjacent jobs there could be. How I ended up at CLDP is kind of by happenstance, in fact. So while I was going through this, what should I do with my life? Should I move on to partnership in private practice or should I do something else? I was asked to actually be an expert for CLDP. So they asked me to do a short video on how to draft an International Arbitration Clause. And following that, I learned about this division, learned about the great work that they do, and was so interested in it. And that's kind of joined their office from there. 

Rebeca: So it all began with an arbitration clause, basically. 

Esha: Yep, it did. It sure did, as many things do. 

Rebeca: Very good. I mean, that's incredible. I really like hearing that. And obviously, it's always, to me, right, it's very interesting to hear about those pivotal moments in a career. I have done many myself as well. I mean, being an immigrant myself and having worked in-house and then in private practice, I understand how sometimes those pivotal moments just come out of the blue or based on a knowledge that you had. So, you know, it's just really, they shape the person that you are. And maybe sometimes we didn't quite understood certain training or certain things that we were going through until we get to that other position. And we're like, oh, now that's very useful, what I learned back then into the current role I am. And so speaking of transitions, how would you say your practice has evolved, right, from that private practice to the governmental role, especially now with the work that you do in the government focused on ADR? 

Esha: Sure. So let me give a brief background as to what my current role is and how ADR fits into that. As I said, I focus my private practice on international arbitration, representing states and the private parties and the private investors in international disputes. And what the Commercial Law Development Program really does is, and we've been around since 1992, just after the fall of the Soviet Union, and the purpose is to ameliorate or improve the commercial environment or legal environment for businesses worldwide. What that means depends on the region that you work in. So as I said, I work in the Asia-Pacific team. We focus on the Asia-Pacific region, and there are various other teams that focus on other regions. We've got the Latin America team. We've got a Middle East, North Africa team, Europe, Eurasia, Sub-Saharan Africa, et cetera. And the focus of what we're doing within each country depends on a multitude of things. One, what the country's needs are, and also what our foreign policy directives are from the State Department. Our whole point is we are a legal office that really helps with infrastructure development, specifically in the Asia-Pacific. So we are looking to really accelerate U.S. business investments in critical infrastructure in Asia and protect those investments, you know, through legal protections. So what we, and the kind of the purpose of this and why we do this in part is because there's a huge infrastructure gap all over the world and specifically in the Asia Pacific. And I'm talking critical infrastructure, port infrastructure, airports, you know, bridges, roads, et cetera. And that infrastructure gap, you know, these host governments are looking to fill very, very rapidly. And so they're seeking investment at a rapid rate. And for the last 10 years or so, the People's Republic of China, the PRC, has been very diligent about filling that investment gap. And so they've. Funneled billions and billions of dollars of financing into large-scale infrastructure projects all over the world via the Belt and Road Initiative. On our end, the U.S. government doesn't do that. We don't funnel billions of state-backed bank money into infrastructure projects in other countries. But what we do at the CLDP is we kind of make it so that private investment from U.S. Businesses can be funneled into these investment projects. And we do that by making sure that the legal landscape in the country that we're working in is conducive to attracting and protecting that investment. Often that takes the form of making sure the project finance mechanisms are in line with international best practices, you know, making sure that there's regulations like a public-private partnership law or, you know, good government contracting processes, again, that are in line with international best practices that will then attract U.S. Investment and also then ensure a return on investment for those U.S. Businesses that are investing in this infrastructure. And how arbitration kind of fits into that? Well, ADR, Alternative Dispute Resolution, is very important for these large infrastructure contracts. Because if you're, you know, from an investor's perspective, you probably don't want to be fighting out a dispute in the local court of a country. You know, a lot of those courts are very bogged down. It can take a long time to resolve. And so ensuring that these infrastructure contracts have arbitration clauses and that the judiciary follows the New York Convention enforcement of arbitral awards and that the government officials that are working on these infrastructure projects have some experience with dispute resolution in terms of arbitration as well. So that's the type of work I do for arbitration. 

Rebeca: It's absolutely interesting. I obviously didn't have much of the background of this is a huge machine, basically. And what I understand is that there are different groups, right? You focus in Asia Pacific, you have Latin America, the Middle East and such. And so you spoke about how you ensure or how the team ensures that there is the legal landscape and project finance and all of these details and building blocks are in place for U.S. foreign investment to feel safe to go into all these different places. How do you accomplish all of that? You know, what kind of mechanisms do you use in this region to ensure that that is a, you know, it's an infrastructure that is in place for U.S. investors to go in there and say, look, I am interested, I feel safe in this environment? What does specifically your team, what have you done and what you do? 

Esha: Yeah, that's a great question. So what we do is we do directly government to government assistance. So we will partner directly with the foreign host government and we'll start our, you know, any type of work stream that we do. And again, these work streams are, they're kind of directed by the directives of the State Department based off of foreign policy goals. So we really work with the State Department to decide what the foreign policy goals are in the country. And then we will conduct an assessment, a legal assessment ourselves. So I will go, for example, in country, meet with various ministries, conduct a legal assessment about the specific sector that we're trying to work on. For example, it might be alternative dispute resolution. So we might want to improve the environment for our alternative dispute resolution. It might be government contracting in the port sector, in which case I might meet with the port authority of the relevant country. And so I'll conduct this kind of legal analysis, gap analysis, to see what kind of practices and procedures and regulations and laws are missing, lacking, could maybe use some improvement. We'll then go back and create kind of a work plan of what we're trying to achieve long-term within the scope of our agreement. And we will then go seek willing partners within the host government. And, you know, that can sometimes be challenging because it's not that all government agencies across the Asia Pacific are always willing to, you know, receive assistance. But that is something that is really important to have a willing partner on the other side. And so we'll ensure that we partner with a willing partner, a willing government agency like a port authority, maybe the Department of Transportation of a specific country that really needs our assistance. Once we do that, we will work with that government agency or entity to really try to push through the changes that we see as important. And that might involve a lot of training of the government officials to get them on board to understand why the practices that we think should be pushed are important to be included in there and the way they kind of do the government contracting. 

Rebeca: Now, that's very interesting. And also sounds like you do have to understand some of the culture and how to connect with these people. And I know, based on what I know about you, it was precisely because of an invitation that I received to go and give some of these trainees in Sri Lanka last year. And so I know you've done some work in Sri Lanka and Thailand, and I just want to know if you can probably, you know, for our audience, if you can tell us a bit about the key takeaways from your experience working in those jurisdictions. 

Esha: Yeah, of course. And, you know, it's funny you mentioned the cultural aspect because it is a big thing to consider. And it is a huge change, I think, from private practice where you're dealing with a lot of kind of private clients to now dealing with mostly government officials with various different cultural differences and, you know, having to respect those traditions and learning about them and making sure that you are not being disrespectful in any sense and making sure that the, Ensuring that it's as much of a partnership as possible. So that's a really big part of my job and kind of working on that diplomacy aspect. But in Sri Lanka and Thailand specifically, so the countries I focus on are really Sri Lanka, Thailand. The Philippines. And, you know, the Sri Lanka event that we did that I wish you could have joined for was a great one. So the purpose of that was to kind of bring together arbitral institutions across the region for information sharing. And this was really to make sure that the arbitration, arbitral institutions in various countries, like we invited the Mumbai International Arbitration Center, the Thailand Arbitration Center, the, you know, the SIAC, we had folks from Malaysia, Nepal, etc. Pakistan, I could go on. And we pretty much got them all in a room together and had them share what their institutional practices were and what the rules were and what type of things they saw that worked for their institutions and what didn't work. And what we see from this kind of information sharing is just betterment of practices across the board. So that's kind of what we did in Sri Lanka. And in Thailand, I'm far more involved in the actual policy making or trying to push some policy changes for the landscape for alternative dispute resolution. So there, I've been working directly with the attorney general's office, trying to get, for example, arbitration clauses in their model contracts, and trying to work with the judiciary on enforcement of arbitral awards, because often what happens in Thai courts is we've seen, for example, re-litigation of arbitral, the merits of an arbitration during the enforcement processes, specifically where the government is a party, the Thai government is a party. Some of the judges will tend to favor the government. And so we will try to kind of. Work with the judiciary there and work with the attorney general's office to make sure that they're kind of pushing a pro-arbitration policy as the U.S. does. 

Rebeca: No, and that's really incredible in the sense that your work not only has touched so many different regions, but you're really shaping them with the work that's been done. And that's incredible. I think, at least from my experience in Latin America, one of the most, you know, complex things is always to work with the judiciary for them to understand how and why arbitration or alternative dispute resolution might not be a competition to them, but, you know, mostly a cussing or something that they can rely on at times. So I, you know, I'm very fascinated by the work that you're doing. But now I want to shift gears just a bit. And I would like to, you know, I would love to know who's been your biggest career or personal inspirations along this journey, right? You've come from private practice, obviously coming from immigrant parents, establishing in the Bay Area. I'm sure that you've had plenty of, you know, personal inspirations, but if you could mention, you know, one or two, what would those be? 

Esha: Yeah, you know, I've always been very inspired by the strong women in my life. I think that's something that has pushed me to kind of pursue the career I have. I'm, again, very lucky to have had a mother who is very passionate, who was very passionate about her career, but was also, you know. An excellent mother and could do it, basically do it all. And so I think my biggest role models are the people in my life personally that I know and I've seen the way that they handle adversity and I've seen the way that they kind of move through life and make it seem easy even though it's not. And so, as I said, my mother was a huge inspiration to me growing up, having moved from India at a very, very early age to a family that she didn't really know that well and having a career in corporate finance her whole life and kind of making all of that work and still managing to maintain boundaries and to be a good person, et cetera, all the things that you need. And now I'm very blessed to have my mother-in-law in my life, who has been an inspiration to me for the last 10 years of knowing her because, again, very strong woman. She worked at the World Bank her entire career and raised three lovely, intelligent, great children, including my husband. So women that I know that have really just made it have been my biggest inspiration. 

Rebeca: That's amazing. And honestly, I can relate. My mom was and continues to be one of my biggest inspirations. I mean, you know, the things that they have had to face in order to be the professional women that they were and raise the family that they have is just, you know, commendable and nothing short of extraordinary, to be honest. So I completely can completely relate. And so I would like to maybe also, you know, come just make it a little bit more personal. If you, Esha, were not an attorney, who would you be? 

Esha: You know, this is an interesting question, especially for attorneys, because I feel like our lives are just, you know, so surrounded by just the law. It's hard to think about doing anything else, especially in private practice when you don't have much time. But one thing I've always really loved is food. I love cooking. I love creating menus. And I, you know, I find creativity through food has been always really fun for me. So I've always thought that if I were not an attorney and if I weren't doing what I was doing, I might try to go to culinary school and, you know, make it as a chef, which sounds like a little bit more brutal than even private practice. 

Rebeca: It certainly does. But you know, now that I know that you love creating menus, I'm just going to hop on a train from New York to D.C. And I will just go and taste the food that you create. 

Esha: Well, you know, Rebeca will both be in Paris for Paris Arbitration Week. So perhaps you can enjoy some food together while we're in the city that makes the best food. 

Rebeca: Absolutely. I would love that. I would love that. And well, Esha, I mean, thank you so much for sharing your experiences and insight with all of us today. I honestly feel that your journey has been and it is so inspiring. And I'm sure our listeners feel the same. And, you know, before we wrap up, is there anything else you would like to share or any advice you would like to give to those navigating their own paths in international arbitration and ADR? 

Esha: Yeah, of course. You know, I think it's really important to be open-minded, right? I wouldn't have ended up in the situation I was if I weren't open-minded about my career. There is more than one path to success, and that doesn't always look like a law firm or the government or an NGO or an international organization. And it's really what you want to do that is going to make you happy. I loved private practice. I loved practicing international arbitration. And I also love what I do now. So you'd be surprised if you just take a chance. So that'd be my advice. 

Rebeca: No, absolutely. I couldn't agree more. I mean, everyone needs to have their own meaning of success. And most of the time you get there and it's your own journey. It's not linear and it's okay. Right? 

Esha: Exactly. 

Rebeca: So, well, thank you again, Esha, for joining us on the podcast. It's been an incredible pleasure speaking with you. And thank you to our listeners for tuning in. Stay tuned for more conversations on Arbitral Insights. Until next time. 

Esha: Yeah, thank you for having me. It's been such an honor to be here. 

Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's Global International Arbitration Practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first-of-its-kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP.

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