The Chartered Institute of Arbitrators (CIArb) Annual Conference, 2023 took place on 15-07-2023 at The Lalit, New Delhi. The theme of the conference was Corporate Dispute Resolvers: The Role of General Counsel, Professionals and Industry. CIArb India Branch was incorporated in the year 2009 with the objective of promoting, developing and improving the standards of alternate dispute resolution in India. Amongst several other events, training and workshops are conducted by CIArb India since its incorporation. It has curated dedicated accreditation programs for aspiring arbitrators throughout the Country.
INAUGURAL SESSION
The event began with the opening address by Mr. Nusrat Hassan, Secretary, CIArb India and Managing Partner at Dentons Link Legal. It also featured Dr. Lalit Bhasin, Chairman-CIArb India and Managing Partner at Bhasin & Co followed up by an Address by Guest of Honour Mr. John. S. Bassie, Global President of CIArb Keynote and Chief Guest Justice Madan Lokur, Judge at Supreme Court of Fiji. The concluding address was given by Mr. Tejas Karia, Director-CIArb India & Partner at SAM & Co.
Mr. John. S. Bassie called the conference as the largest conference on arbitration in India. He said that “Ciarb is a global membership and professional body spread over 160 countries having 43 branches. It supports Equality and diversity.”
Dr. Lalit Bhasin remarked that “the purpose of this event is to discover different segments that can contribute to the dispute resolution. The responsibility lies with them to resolve the disputes amicably. These segments can promote Alternative Dispute Resolution. (‘ADR’)”. He also mentioned that it is the lack of proper institutions that is not letting arbitration to grow in India.
Shedding light on the role of lawyers, Judges, chartered arbitrators, technocrats, experts, and Company Secretary, Dr. Bhasin said that “they all need to be involved for ADR growth. There is a need to create awareness among people that what a Chartered Institute of Arbitrators can do”. He further clarified that CIArb is not a arbitral institute, it trains arbitrators and mediators throughout the world. Dr. Bhasin further said that “mediation has always been a part of us, for instance Panchayats.”
While speaking on climate change in dispute resolution, Justice Madan Lokur said that “one of the problems our justice delivery system is facing today is the huge backlog of around 50 million cases. Thus, there is a need to look for some alternatives to expedite justice.” He promoted the idea of ADR movement in India.
He further quoted that the management of arbitration needs to be institutionalised. He advocated for training, for advocates, mediators and arbitrators. He said “CIArb has a vast pool of training resources. Justice Lokur remarked that as there is judicial training for the judges, why there cannot be training for arbitrators, advocates and mediators.”
While sharing an instance, wherein a couple had come for settlement and wanted to reconcile, he said that as the mediator was not a trained mediator. At the end the husband and wife signed the divorce papers instead of the settlement for which they came. Thus, there is a need for trained mediators, advocates and arbitrators.
He further said that “we need to market arbitration; we need aggressive marketing. Get together and market the idea of ADR”.
He also talked about absence of sanctions in ADR, one has to file the statement of claim in a particular period, but in case of delay there are no sanctions. Justice Lokur further advocated for having standard inbuilt procedures, as standards vary from arbitrator to arbitrator, thus there is a requirement of having a standard procedure. Just like Code of Civil procedure, 1908 for litigation
He also said that the law has changed but the contracts have not. Finally, he stated that the cost is prohibitive, that’s why there is a need for corporates, General Counsels (GC’s) to come up.
As per him, now, the Courts are not able to handle the volume of litigation it is handling. Thus, its time for ADR. He expressed happiness on this initiative taken by Ciarb.
While concluding the inaugural session, Mr. Tejas Karia said that “We are going to have a unique conference”. Discussing the role of CIArb, he said CIArb is recognised across the world, and it plays an important role in terms of training. CIArb accreditation is recognised globally.
Mr Karia mentioned that the arbitration management is the need of the hour. He further remarked that India lacks in independent arbitrators. He also advocated for an appellate authority for ADR, as now the Court is the appellate authority. He further said that a committee has been formed for setting up an arbitration bar.
After the inaugural session, Mr. Ramakrishnan Viraraghavan, Senior Advocate and Barrister moderated the Fireside chat with Justice Hemant Gupta (Retd.), Chairperson, India International Arbitration Centre. During the chat, Justice Hemant Gupta (Retd.), said that an arbitrator is like a driver of a vehicle. The whole ecosystem of arbitration depends on the quality of arbitrator, he should be hard working.
As per him, an arbitrator must inspire the confidence of the parties. Unfortunately, in Indian ecosystem people believe in the opposite. Justice Gupta further said that an arbitrator must be neutral.
He said that unfortunately, the Indian ecosystem is of ad hoc arbitration. The judges are not experts, don’t have domain expertise in every field. Thus, we need experts. Ad hoc arbitration must give way to Institutional arbitration. If ad hoc arbitration continues there will be continuous problems. He suggested that for new arbitrators who are not experienced that they must start with low ticket arbitration.
SESSION 1
Theme: The Role of General Counsel as Dispute Resolvers
Chair: Mr. Vyapak Desai-Partner at Nishith Desai Associates and Director- CIArb India
Speakers:
▪ Ms. Vani Mehta- General Counsel, Southeast Asia at General Electric
▪ Mr. Manish Lamba, General Counsel at DLF Cyber City Developers Ltd.
▪ Dr. Akhil Prasad, General Counsel & Member Board of Directors, Boeing India Services Pvt. Ltd.
▪ Ms. Smitha Sehgal, AGM (Legal)-EIL
▪ Mr. Vineet Vij, General Counsel Tech Mahindra
On role of the GC as dispute resolvers, Ms. Vani Mehta said that “when we talk about a certain level of contract, the conversations are not easy. The stakes are high. You know what all can go wrong”
Mr. Manish Lamba said that “we have very complex law in India, more beneficial for the lawyers not for the litigants”.
As per him neither litigation nor arbitration is not the solution, but what is important is to find something that is suitable
He further said that “we are very bad losers; we find fault in everybody except us. We find fault in the Judgments. We are not a very sporting nation”.
Mr. Vyapak Desai remarked that in India there is more litigation on arbitration, than arbitration itself.
As per Ms. Smitha Sehgal, the in-house counsel, should have a clear perspective of what is going on outside. They are required to be updated.
Talking about the challenges in the pre litigation stage, she said that even in the negotiation stage the role of inhouse is important. Knowing the transaction, inhouse is in the position to advise neutrally. It is the inhouse who can mold the documents and can guide the management about the defects.
She further said that at EIL they have a mode of dispute resolution derived from arbitration and mediation that is “Outside Experts Committee”.
On long arbitration disputes, Ms. Smitha said that GC must convey to the management that this is where we need to stop. As per her arbitration is not a solution to ADR, but its mediation and conciliation.
Mr. Akhil Prasad said that in-house lawyers in some companies do not recognise the importance of due diligence. A GC should sit at the very top in terms of due diligence A GC should keep a very strong eye on the issues faced by a Partner.
On the question whether litigation or mediation asked by Mr. Lalit Bhasin, Mr. Vineet Vij said that “Mediation is the future”
SESSION 2
Theme: How do Chambers of Commerce / Trade and Industry Organisations Contribute to Addressing, Assisting and Resolving Commercial Disputes
Chair: Ms. Neeti Sachdeva, Secretary General & Registrar at MCIA & Director at CIArb India
Speakers:
▪ Dr. Jatinder Singh, Asst. Secretary General, PHD
▪ Mr. Vikkas Mohan, Executive Director at Confederation of Indian Industry
▪ Mr. Arun Chawla, Director General, ICA-FICCI
On the role of Federation of Indian Chambers of Commerce and Industry(‘FICCI’) plays in dispute resolution, Mr. Arun Chawla said that “FICCI is the bridge between the Government and industry. It provides a platform for dialogue. FICCI work towards providing a conducive environment”.
As per him, the Government and FICCI urged the importance of Institutional arbitration with the aim to de-clog the Courts with litigation. He clarified that FICCI is not running ICA. It is an independent body. Further, he said that services of ICA are not meant for FICCI alone.
Mr. Vikkas Mohan said that the fundamental principle of arbitration is the independence of arbitrators. The process of appointing an arbitrator must be fair. If there are enough checks and balances, then conflict of interest will not be there.
As per him, integrity is the topmost quality of an arbitrator.
He further said that one of his aims is to advocate and propagate training to people who are getting into ADR.
Mr. Jatinder Singh said that one of the important parameters for appointing an arbitrator is dimension of trust and understanding.
On training of arbitrators, he said that there is some sort of resistance for upskilling. As capacity building is the need of the hour. More interactive sessions on ADR are important.
SPECIAL ADDRESS
The Special Address was by Ms. Leonora Riesenburg, C.Arb Carb.FAIAFR CMed.FAIADR Chartered Arbitrator, Accredited Mediator, Certified ADR Practitioner, International Tenant 4-5 Gray’s Inn Square – Former Chair of the UAE Branch of the CIArb
Ms Leonara Risenburg talked about the rise in arbitration and use of technology in arbitration. She also talked about the growth of Third-Party Funding in Arbitration. She said that “there have been significant changes over the period which led to multiple stakeholders which led to changes in technical growth, multiple contracts and parties”.
SESSION 3
Theme: The role of Professionals (Lawyers / Arbitrators / Mediators / CAs / CSs/ Architects / Engineers) in Dispute Resolution
Chair: Mr. Hasit Seth, Independent Counsel, Arbitrator & Mediator.
Speakers:
▪ Ms. Geetu Singh, Partner at KMPG, India
▪ Mr. Montek Mayal, Partner & Practice Head, Osborne Partners
▪ Mr. Ajit Kumar Mishra, FIE -General Manager- Dedicated Freight Corridor Corporation of India Ltd.
▪ Mr. Rajiv Choubey, Group General Counsel, Dalmia Bharat
▪ Mr. Gaurav Gulati, Partner at Accuracy
Mr. Hasit Seth focused on discussing the solution rather than problems.
Mr Ajit Kumar Mishra talked about the measures taken by Government to ease out the processes and focused on shared responsibilities. He said that “International Arbitration is one of the pain points because of the complex processes”.
Mr. Montek Mayal said that “experts do not engage with the process enough”.
Mr Ganesh Chandru, said that “for dispute resolution, we need to get the dispute resolution right”. He further stated that it is good to have a proper guidelines so that an award can be very well written.
Mr Rajiv Choubey said that “time is the essence with respect to dispute resolution”. He further said that there is a considerable delay which gives rise to costs.
Ms Geetu Singh said that “one has to minimise the mental block of bringing an expert with respect to costs, but one has to think what an expert will bring to the table”.
The session concluded with suggestion by Mr Bhasin on appointing more female arbitrators.
SESSION 4
Theme: How CIArb as an Institution helps in promoting and assisting in developing an eco- system of ADR.
Chair: Mr. Nusrat Hassan, Managing Partner, Dentons Link Legal & Secretary, CIArb India
Speakers:
▪ Mr. Tejas Karia- Partner at Shardul Amarchand Mangaldas & Co. & Director at
CIArb India
▪ Mr. Sameer U Shah, Arbitrator & Director at CIArb India
▪ Mr. Arush Khanna, Partner at Numen Law Offices & CIArb India-YMG Member
▪ Mr. Deepak Narayanan, Partner at BDN Chambers & CIArb India- YMG Member.
Mr. Tejas Karia explained the role and functions of CIArb. He said it is not an arbitral institution which runs arbitrations. Ciarb can only accredit the arbitrators. They are involved in policy making decisions. Training and capacity building is the core function of Ciarb.
On the question of the benefits of YMG member, Mr Deepak Narayanan talked about three important benefits i.e.
- Constant learning;
- Exposure through Events;
- Knowledge sharing.
Mr Arush Khanna talked about the exhaustive courses provided by CIArb and comprehensive learning one can get after joining CIArb.
Mr Shashwat Bajpai talked about learning the art of writing an award after pursuing courses offered by CIArb.
VALEDICTORY ADDRESS
Mr Tushar Mehta, Senior Advocate and Solicitor General of India gave the valedictory address.
He said that “India has always favoured the conventional judicial system”. Mr. Mehta discussed the role of General Counsels and looking for non-conventional mode of dispute resolution.
He further said that “an ecosystem must be created so that that a moral responsibility for reaching an amicable solution is developed”.
