In conversation with Hiroo Advani on his experience as an Arbitrator and journey so far

Mr. Hiroo Advani is Senior Managing Partner, Advani & Co. He recently retained the ranking as ‘Band I’ Dispute Resolution Lawyer under Chambers and Partners Asia-Pacific Rankings, 2021.

Mr. Advani is a leading dispute resolution lawyer and an Arbitration Specialist, and has consistently held the position of a Tier 1 dispute resolution Lawyer in the country. He has conducted Arbitration as a Lead Counsel in a wide range of fields, including, construction projects, infrastructure etc.

He has been interviewed by Khushbu Sood who is currently pursuing law from HPNLU.

For Video Interview, click HERE

  1. Tell us about your journey from obtaining a degree from the University of Cambridge to a leading name in an originally arbitration law?

I originally started practice as a junior lawyer in the Bombay High Court and acted for one or two large American clients. The clients were pleased with my work and I developed a long-term association with them. The American companies had a policy not to engage individual lawyers and only law firms for substantial work. As a result I started my firm Advani & Co. and got involved in a large number of arbitration’s from them and therefore at the very start my focus was on international companies doing arbitration’s in India, which soon expanded to international arbitration. This work was commercially more lucrative and therefore I continued to expand into clients having major arbitration’s. Having said that, I had to retain my court practice for arbitration’s challenged in India.

 

  1. Being a specialist in domestic and international arbitration, what is your take on India’s footing in arbitration and mediation on international level and what changes can be introduced for the development of India in the field of ADR?

As more and more global companies entered India there was an increase in their contracts with government-owned entities. This inevitably gave rise to several arbitration’s especially in large construction contracts. Having said that, there has been a considerable improvement in the field of arbitration when the amended Act of 2015, prescribed a time period for completion of contract. This gave some confidence to international companies that arbitration’s in India can be completed in time. However, the commercial courts have not been very successful in disposing of challenges, as the Commercial Courts Act, 2015 has an exceedingly low floor range of INR 3 lakhs. The Delhi High Court has been very successful in operation of the commercial courts and other High Courts including the Bombay High Court have been behind in successful operation of the commercial courts. The District Courts and the civil courts also do not seem to have worked very well. For e.g. in the Bangalore City Civil Court there is only one Judge who hears all commercial courts matters and is obviously overwhelmed with the work.

Arbitration’s can be completed quickly but the challenge to the awards still takes about six to seven years. Having said that, the concept of third-party funding has been widely practised globally. Although it is permissible no third-party funder has set up a base in India because of the time the court will take to complete matters. Having said that, one big benefit of the amended Section 37 is giving the court the discretion to have entire award amount deposited in the court and avoids another round of litigation to actually enforce the arbitration award. Although the Arbitration and Conciliation Act provides for a quick procedure, without evidence for certain arbitration, it is violated by both sides and therefore never followed. If the procedure for quick arbitration before a sole arbitrator was made mandatory for amounts ranging from INR 5-10 crores, this can enhance process enormously.

 

  1. What challenges have you faced in pursuing arbitration as a career? Is there any certain set of skills to be an arbitrator?

In order to enhance young minds to arbitration, there has to be an emphasis on the law and skill of cross-examination, which is very different from how it is done in courts.

  1. With your experience and observation of young minds in the field of ADR, what can be the early signs that help a fresh mind to do exceptionally well in the field?

Young lawyers who want to specialise in arbitration must have a strong grasp of the law and legal research which will help in winning cases before the arbitrators.

 

  1. “Justice hurried is justice buried” plays a vital role in the legal industry, what are your views on its role in respect to ADR and especially arbitration?

Justice in India is not hurried. In domestic arbitration’s in India, the arbitrators do not act firmly enough as done in international arbitration’s where arbitrators specific time-limits are set and the process of cross-examination and arguments all fall within the scheduled time frame. In India arbitrators allow the rambling on cross-examination and oral arguments. In India justice is not hurried, it is prolonged.

  1. Have you ever worked or planned to use the mode of operation of electronic dispute resolution? What are your views on sustainability and diversity in the newly virtual world of international arbitration?

Yes, use of technology as a mode for dispute resolution has increased more in the pandemic. A number of courts allow cross-examinations to be held virtually. In today’s day it has become a norm to cross-examine in any part of the world. This will continue in the future as well, so that even in India witnesses from different parts of country can be examined virtually rather than people having to travel for court matters.

I think that diversity for India and arbitration is still a bit far away as we are still engrained with appointing retired Judges as arbitrators. The Act amended in 2019, talks about an arbitral institution which would grade arbitrators and institutions and also envisaged the role for arbitrations to be administered by institutions and not courts. Unfortunately, this part which has not been notified as the role of institutions are much more relevant way for future arbitrations and is a lot more effective.

 

  1. How has the pandemic influenced the field of arbitration? What challenges and trends have been observed during this time in the arbitration?

The use of technology as a mode for dispute resolution has increased more in the pandemic. A number of courts allow cross-examinations to be held virtually. In today’s day it has become a norm to cross-examine in any part of the world. This will continue in the future as well, so that even in India witnesses from different parts of country can be examined virtually rather than people having to travel for court matters.

 

  1. The fact that certain universities are establishing such centres on ADR, how do you see this as an asset for changing the fate of ADR in India?

I think that the universities that are establishing themselves for ADR, must invite practicing lawyers and arbitrators to give lectures to students as this would be much more useful than having professors who give them just the theoretical knowledge. Just like court practice differs from what is taught in class, the practice of arbitration is different from the theoretical knowledge imparted at the university. The students will benefit from having heard the practical issues and skills required in arbitrations from practicing lawyers and arbitrators more than lectures teaching them mechanics of arbitration.

 

  1. Any message for students and readers who want to develop their future in the field of ADR?

Considering the fact that commercial courts have yet to become efficient in disposing of matters, there is an exceedingly bright future in arbitration rather than court practice.

 

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