Ms Iram Majid, is the Executive Director at Asia Pacific Centre for Arbitration and Mediation. She has a keen interest in imparting knowledge to young law students and make them acquainted with this booming field of arbitration and mediation. She believes that young law students of today can act as a strong pillar for strengthening the structure of arbitration and mediation in India.
She has been interviewed by Saman Rahman, EBC/SCC Online Student Ambassador who is currently pursuing law from Lucknow University
- Please tell us what considerations prompted you to pursue a career in ADR?
I pursued my BA LLB from Aligarh Muslim University and thereafter, pursued LLM. At the beginning of my career, I was a litigating lawyer and I used to handle cases relating to civil, commercial, matrimonial, government matters and matters pertaining to writ.
After three years of practice, I was appointed as the Sole Arbitrator and I consider this as the beginning of journey in alternative dispute resolution (ADR). Gradually, I started getting assignments from the courts like appointment as a Local Commissioner and Arbitrator. Since then, there has been no looking back and I believe that I have not chosen ADR, but it has chosen me. Only after being appointed as an arbitrator, I realised that it is a speedy process of administering justice to the aggrieved parties as compared to litigation. It is not only party-centric but very effective as well.
I consider myself extremely lucky to have been empanelled with the mediation centre in the Delhi High Court where I realised how efficiently access to justice can be made through mediation process.
I would like to narrate a case which I was handling as it changed my perception about ADR completely. There was a matrimonial dispute where the couple was struggling for 25 years. The husband was on the deathbed and his last wish was to conclude the matter as fast as possible and through the mechanism of mediation, the matter could be settled just in five days. After the settlement, the husband died within a month or so. When the couple got separated, they were had two children aged five years and three years respectively. This matter intrigued me into thinking that in spite of all the laws and procedures being in place, the access to justice is very arduous. Hence, I believe that alternative mechanism, through mediation and arbitration to deliver justice, in real sense, is the need of the hour. The matters settled though these alternative mechanisms does not aid in the administration of justice in a clerical way but in a manner which is reflected in the society and also benefits the people at large. According to me, if justice is not given in a timely manner, it results in no justice at all.
- Arbitration and Conciliation (Amendment) Act, 2021 was recently enacted. What are your views on the following key changes:
(a) “The amendment has ensured that the stakeholder parties can seek an unconditional stay on enforcement of arbitration award, if the contract or agreement has been induced by fraud or corruption.” Does this defeat the very objective of ADR by subjecting parties to prolonged litigation?. Does this mean that the process of ADR is based on arbitrariness?
After the modification made in Section 36, based on the 2015 amendment of the Arbitration and Conciliation Act, after the time for making an application to set aside the arbitral award under Section 34 has expired, the award could be enforced in the same manner as a decree. Prior to the 2015 amendment, if a challenge under Section 34 is preferred, then, only after the said challenge is disposed of, the award gets the status of a decree. This was construed as an “automatic stay”, even though the fact is that the award is non-enforceable being not a “decree”. This would practically put a clog on the right of the award-holder, as he would not be able to execute the award in his favour, even if the grounds of challenge are weak.
That is why the 2015 amendment made changes to the effect that after the time for making an application under Section 34 has expired, the award would become a “decree” and the court has to grant an order of stay of the operation of the said arbitral award, if a separate application is made for that purpose. The purpose of the said change is to make sure that the party who succeeds in arbitration can go ahead and execute the award in his favour without unduly wait for years while a challenge proceeding is pending, even if the challenge lacks prima facie merit. But this right cannot be made unilateral. That is why a corresponding right was given to the award/judgment-debtor to seek stay of the execution of such an award. Based on the merit of the contention raised by the party, the court may, subject to such conditions as it may deem fit, grant the operation of such award for reasons to be recorded in writing. If the award is for payment of money, the court may also have to consider the provisions for the grant of stay of a money decree under the provisions of Civil Procedure Code, 1908 (CPC).
As per the 2021 amendment, a change was introduced, where, if the court is satisfied that a prima facie case is made out that the arbitration agreement or the making of the award was induced or affected by fraud or corruption, it shall stay the award unconditionally. Even though it gives a feeling that it takes away the discretionary power of the court to impose any condition, the present arbitration scenario in many public sector arbitrations and arbitrations held in private financial companies in India, would probably justify such an amendment. In spite of the introduction of Schedules 5 and 7, the independence and impartiality of arbitrators are often violated and the procedure misused and done in conflict with the most basic notions of morality or justice. As per Explanation 1 to Section 34(2)(b)(ii), an award is in conflict with the public policy of India, if the making of the award was induced or affected by fraud or corruption or in conflict with the most basic notions of morality or justice. Hence, if such a fact is prima facie shown, the award could be stayed unconditionally, without the conditions stipulated in CPC. This actually ensures that the quality and professionalism of arbitration improves in India.
(b) “It has also removed the 8th Schedule, which dealt with the necessary qualification for accreditation of arbitrators.” Does this make the post of arbitrator less reliable, and can this ensure justice to the aggrieved party?
The 2019 amendment of the Arbitration and Conciliation Act, 1996, introduced the 8th Schedule which laid down the qualifications, experience and accreditation norms that an arbitrator needs to possess. This amendment was heavily criticised as it was against the nature of arbitration itself and also left no room for appointment of foreign arbitrators, which was against the basic principle of party autonomy.
Thereafter, a Parliamentary Standing Committee was formed which comprised of seventeen parliamentarians to discuss the amendment of 2019 at length. They invited eminent people and institutions from the field of arbitration to give their recommendations. Indian Institute of Arbitration and Mediation (IIAM) was also invited and I had the privilege to attend the meeting along with the President of IIAM to suggest recommendations on the 2019 amendment. The stance put forth by us was to remove the 8th Schedule, primarily due to two reasons:
Firstly, there were many small stake matters, which involve small claims like below rupees five or ten lakhs, which could be resolved by young arbitrators having lesser experience. It is needless to mention that the fees of the arbitrator is decided according to the claim value. A professional having an experience of over 10 years, would obviously not be willing to take up such matters and in that case, we need young blood to step in, as this would give them experience to take up higher stake matters as well. Hence, the 2019 amendment which states that the minimum experience for a professional to become an arbitrator as 10 years, limits the scope of the practice of arbitration. This not only imposes undue restrictions but also refrains the law students and young law graduates from pursing their career in arbitration.
Secondly, by removing the 8th Schedule, India meets international benchmark and thus takes a step forward in making India a pro-arbitration jurisdiction. Internationally, young lawyers are given accreditation and are given the chance to practise this profession. If we take the Indian scenario into consideration, the arbitrators from our country would have lagged behind as compared to other jurisdictions, if 8th Schedule would not have been omitted.
(c) “Section 36 of the Act will be enforced retrospectively from 23-10-2015.” Does this alter the basic roots of ADR i.e. to reduce burden of the courts?
When the 2015 amendment was made in Arbitration and Conciliation Act, Section 26 of the Amendment Act specified that the application of the amendment is prospective and nothing contained in the amended Act will apply to arbitral proceedings commenced before the commencement of the amended Act. To be more precise, nothing in the 2015 Amendment Act will apply for arbitrations commenced as under Section 21, if the same is prior to 23-10-2015 (the date of commencement of the Amendment Act).
But the Supreme Court in Board of Control for Cricket in India v. Kochi Cricket (P) Ltd., held that the Amendment Act would apply prospectively to court proceedings commenced on or after 23-10-2015, irrespective of whether such court proceedings arise out of, or relate to arbitration proceedings which were commenced prior to, or after the commencement of the Amendment Act.
Since this decision would make amended Section 36 to apply for arbitrations conducted as per pre-amended Arbitration Act, the 2019 Amendment Act inserted Section 87 as a clarificatory amendment, to provide that arbitral proceedings and court proceedings “arising out of, or in relation to such proceedings” shall constitute a single set of proceedings, for the applicability of the 2015 Amendment Act. Therefore, amended Section 36 will be applicable only prospectively for arbitrations conducted after the 2015 amendment.
But the Supreme Court in Hindustan Construction Co. Ltd. v. Union of India struck down Section 87 of the 2019 Amendment Act, and restored Section 26 of the 2015 Amendment Act and held that the BCCI judgment will continue to apply.
This could create many controversial grounds for challenge, which are introduced under the 2015 amendment, which would be applied in arbitration proceedings conducted under the provisions of the pre-amended Arbitration and Conciliation Act. And at the same time, the awards made under the pre-amended Arbitration and Conciliation Act would become deemed “decree” under the 2015 Amendment Act. This could alter the basic root of ADR and probably may lead to lengthy litigations.
(d) To what extent will this amended Act affect the enforcement of contracts and ease of doing business in India?
The Amendment Act of 2021 has led to certain changes in the scenario:
First, I would like to shed light on the omission of 8th Schedule from the principal Act. I am glad that, the recommendations given by us along with the other experts and institutions, proved to be fruitful, and the 8th Schedule was duly omitted. This omission opens gates for the foreign arbitrators to be appointed in the Indian-seated cases as well as allows Indian arbitrators to practise at an international level. Thus, this amendment should be applauded as it not only liberates jurisdiction, but also makes arbitration a globally recognised profession.
Secondly, I would like to highlight the formation of the Arbitration Council through the insertion of Section 43-A by the virtue of 2019 amendment. The Arbitration Council plays an integral role in regulating the profession of arbitration. It grades the different arbitration institutions, formulates policies relating to arbitrations as well as provides training and accreditation to the arbitrators. This takes the practice of arbitration at a different level altogether.
This amendment provides due importance to contracts and agreements. Based on the contracts/agreements, the court refers the matter to arbitration. To elucidate further, I would like to mention the case of Vidya Drolia v. Durga Trading Corpn. wherein, the contract was given prime importance and based on which, minimum interference of the court was ensured.
In conclusion, these amendments are undoubtedly promising and have a great impact on the practice, but we need a good pool of arbitrations to carry out the profession in an efficient and effective manner.
- The Supreme Court has rigorously worked in making India more welcoming to ADR mechanisms, the judgments like TRF, BALCO, and Perkins Eastman have clear significant ground on appointment of arbitrators and arbitration itself, yet it is almost every day that we see someone finding a loophole in the matter and dragging the dispute. What are your views on such a practice of dragging the matter for a long time, as they are against the essence of ADR i.e. timely disposal of cases?
I believe that we are not taking the practice of arbitration seriously and trying to make it equivalent to litigation. We really need to understand that the arbitration process is different from litigation practice completely. In the light of the same, it is crucial that awareness regarding arbitration is created.
The courts in our country need to reform the judicial process in pre-arbitration as well as the post-arbitration processes. Pre-arbitration process would consist of the appointment of the arbitrators and the commencement of the arbitration proceedings. This process of constitution of the Arbitral Tribunal should be very smooth and well structured. Post-arbitration challenges should be properly supervised and the award should attain finality as soon as possible.
When an award is challenged before the court, it should be decided as well as disposed of within a prescribed time limit. Usually, the courts take years to dispose of a petition challenging an award. When an arbitration matter is stuck in the court for four or five consecutive years, the essence of arbitration i.e. to provide speedy delivery of justice is lost.
The aim of the Arbitration and Conciliation Act, 1996 is to pass an award within period of one year, but even when the award is duly passed by the Arbitral Tribunal, the entire process does not reach finality as it is challenged in the court and remains pending. Hence, the onus is on the courts to decide the challenge of award within a prescribed time period, without any undue delay, so that expeditious disposal of matters can be ensured. Same is the situation with enforcement of award. The execution of an arbitral award and appeals relating to the same also needs to be completed within a short time frame.
I would further like to explain my stance through an imaginary illustration – consider a matter in which the proceedings take place before an Arbitral Tribunal constituted in India and a parallel scenario, wherein proceedings of a matter takes place before a tribunal constituted in Singapore. After the award is passed in both the jurisdictions, the parties in the respective countries challenge the same in the court in their respective seats. The question that arises here is, in which country, the matter shall be decided and disposed of first. The answer to this question is obvious i.e. Singapore.
Through this illustration, I want to convey that there is no problem in the Arbitration and Conciliation Act but serious doubts can be raised regarding the governance of the same. Therefore, in my opinion the legislature through an amendment should consider prescribing a time limit for the disposal of petitions relating to arbitration matters in the courts, so that the entire process can be streamlined.
- What is the future of mediation in India and what are the cases best suited for the process of mediation?
Being the Director of the Indian Institute of Arbitration and Mediation, I would like to mention that India is in the adolescent stage as far as mediation is concerned. The different community stakeholders have already accepted the need and use of arbitration and mediation.
The society lacks awareness about mediation as a method of dispute resolution but India is at a process stage wherein it strives to reach benefits of mediation to as many people as possible.
At the international level, after the enactment of the Singapore Convention, the scope, usage and application of mediation as a dispute resolution process has increased manifold. I believe that India should bring reforms in the system by enacting a legislation on mediation which will lead to efficient functioning of the process. Further, if there is a proper legislation on mediation, then only will India be able to adopt the practices of mediation efficiently and imbibe its fruits completely. In the light of the same, India should organise awareness camps about mediation. Bar Council of India should make it mandatory for students of law to study the subject of ADR in the second year itself and not in the later years. India should offer diploma courses and masters in mediation and arbitration. It should invest in research and development programmes for the furtherance of ADR. Hence, the colleges and courts play a pivotal role in raising awareness about ADR. The institutions such as Indian Institute of Arbitration and Mediation, Asia Pacific Centre for Arbitration and Mediation (APCAM), American Arbitration Association (AAA), New York and International Centre for Alternative Dispute Resolution are providing platforms for settlement of cases amicably and outside the court settlements. Another observation is that, we generally focus on mediators and not the lawyers who become mediation lawyers and hence, there needs to be growth in the field of mediation advocacy. Thus, there is a need that we make an attempt to spread awareness about ADR so that the business communities and other stakeholders can understand and avail the benefits of the same. It is needless to mention that India has a very bright future ahead in terms of mediation.
The scope of mediation is broader than that of arbitration. All kinds of cases are suited for mediation, except the crimes of heinous nature. As it is rightly said, mediation enables healing and facilitates dialogues which help in solving the problem at the grassroot level. Mediation can even happen in the criminal cases by restorative justice. Some of the areas in which mediation is predominantly used are – sports law, matrimonial disputes, land disputes and commercial matters, etc.
- You have been guiding young law students and graduates in understanding ADR mechanism; please tell us about your experience.
“Teaching is more than imparting knowledge; it is inspiring change. Learning is more than absorbing facts; it is acquiring understanding” – by William Arthur Ward.
I am not a teacher by profession but I put my honest efforts in guiding and training young law students and graduates. I teach to inspire and to make a difference. I believe that if the young generation lawyers are guided well and shown the right direction, they have the potential to take the practice of arbitration at a different level altogether. I am glad that, over the span of time, I have been able to change perspectives and guide the students regarding the manner in which they can make their career in arbitration and in the process, make them contribute in the field, so that ADR can grow.
Teaching is also my passion and hence, in the furtherance of the same, I started my own academy wherein I teach “arbitration” as well “mediation” to these young law students, free of cost. Usually, the classes I take have good strength of students. In my last batch, I was pleased to see that these students not only have great potential in them but are also ready to work towards achieving their goals. They used to understand the concepts that I used to teach as well get their doubts cleared.
I am also a guest faculty at “Lloyd Law College” wherein I take weekly as well as weekend batches. I must say, I thoroughly enjoy sharing my knowledge with these young students and feel accomplished at the end of the day. I not only teach to make them understand the subject but also to make them aware about the whole mechanism of ADR and the benefits it entails. I also take training sessions wherein I train professionals at the Indian Institute of Arbitration and Mediation.
Further, I conduct internship programs for law students so that they can get first-hand experience in the field of ADR. I have had students who have worked with me for over a year. So, that is the kind of enthusiasm and zeal they have. I believe that if a student is willing to learn, he/she can do really well.
The positive feedback that I receive from my students acts as a motivating force.
- What are the various career opportunities available in ADR field and how can one pursue them?
ADR is a field which has no territorial/jurisdictional boundaries, hence an individual can practise the same at national as well as international level. There are a plethora of career opportunities available in the ADR field – one could delve into teaching, become an independent arbitrator, mediation counsel, work for different ADR firms and one could also aspire to become an administrative tribunal secretary.
While reading the subject, students should not only understand the Indian perspective but also equally focus on the global perspective. They should undertake internships with various arbitration and mediation counsels as well as intern with institutions such as IIAM, ICC, and APCAM. Internships play an important role in nurturing the interests as well as imbibing professionalism in students. These young students learn small things while interning, which can make a huge difference later – for example, managing a case file in an arbitration matter is completely different from litigation.
Students can also take memberships of various institutions, free of cost. This will enable them to engage with various renowned experts in the field which will further facilitate their growth.
Reading and writing are very important facets of this profession. I suggest students to write for blogs and journals which will help them in gaining indepth knowledge about the subject.
I would also suggest to take part in various ADR competitions (moot courts, mediation and negotiation) which not only sharpens the research skills but also helps in inculcating collaborative mindset in students. In addition to preparing for oral arguments and memorandums, they should also engage in networking with professionals. The connections that they make will be lifelong connections and will definitely prove beneficial for them in their career.
- How important is doing proper legal research and how should law students equip themselves with legal research skills?
Legal research is the foundation on which our legal profession rests, so the stronger the foundation is, the better it is. Effective legal research is an asset for law students as well as for advocates. Thus, it is very important that law students continuously strive towards sharpening the legal research skills.
Some of the effective ways to undertake effective as well-efficient research are:
- Imbibe the habit of reading case laws, blogs and latest legal developments. It is integral to stay updated regarding the judgments passed by various High Courts and the Supreme Court. Students could also pen down their own analysis of the same and get it published.
- I would ask all the law students out there to use reliable sources for their legal research. There are various legal databases such as SCC Online, LexisNexis, Jstor, HeinOnline, and Manupatra. Some colleges do give remote access but if not, double check the source of your information so that you know the correct facts.
- Engage in discussions with seniors, peers and colleagues. When we discuss, we are exposed to different perspectives and get a holistic view of a particular concept. This also facilitates growth and personal development.
- My final piece of advice would be to practise and learn. As it is rightly said “Rome was not built in a day”, so consistency is the key. One can only master the art of legal research by practising it.
- On a concluding note, what advice would you like to give to law students?
The best piece of suggestion that can be given to a student pursuing law is that he/she must be involved in the Department and all the activities, as much as possible. This will help him/her learn the skills required to be a great lawyer in the future. Some of the activities in which he/she can participate are moot courts and writing articles and doing pro bono work.
A law student can start with participating in moot courts and start with learning skills such as research and writing or arguing which are some of the real-life skills that are used by lawyers every day. The student should be ready to dive into the assignments. Also, he should learn how to say “yes” to every difficulty that comes in his way and to every assignment.
Knowing yourself is the beginning of all wisdom.
Another piece of advice which can be given is that, success is not always about career. Career is not everything. One should focus on succeeding in life and not only in career. There are many types of success. Many people are unaware about the difference between success in life and success in career. Success in career has become a synonym to success in life. The difference in both these terms is significant and is worth knowing. We should focus on maintaining a balance in life and succeeding in life. One should decide what kind of life he or she wants and work hard and persevere to achieve that life and that will be known as success. Success is different for every individual. One should not let himself or herself down by failure. Failure is a part of success. Even during difficult times, we should continue moving forward and try to get a life which we have always dreamt of.
We should know what makes us happy and what feels great and work hard to have that kind of life. Also, we should not be afraid to ask for help or to be afraid to take responsibility of our actions. We should be confident in our life. And one should act like there is no tomorrow because if we think that we have immortal existence, we will not be able to live a fulfilled life.