The Chartered Institute of Arbitrators (CIArb) India Branch, in collaboration with the Bombay Bar Association and the Society of Indian Law Firms, is hosting the highly anticipated Annual CIArb India Conference, “Corporate Dispute Resolvers: The Role of General Counsel, Professionals, and the Industry,”. This event is poised to bring together General Counsel, experts, ADR professionals, Third-Party Funders, and Chambers under one roof.
Nusrat Hasan, FCIArb, Managing Partner, Dentons Link Legal gave the welcoming address. He said that “CiArb is the well accredited and recognised branch for providing well-established courses”.
Lalit Bhasin FCIArb, Managing Partner, Bhasin & Co. welcomed all the participants at the conference. He said that “Ad hoc arbitration has been doing satisfactory work, but there is a need of proper training for arbitrators. The role of the Chartered Institute of Arbitrators is to provide a platform for training programs.
Nitin G Thakker, Senior Advocate, President Bombay Bar Association, while expressing happiness about the collaboration between Bombay Bar Association and CiArb, congratulated the Institute for coming up with best Training Programs.
He said that ADRs exist in our country from a long time. Covid-19 mark a paradigm shift in virtual shift in arbitration. He also highlighted that Indian Arbitration Community released a protocol for virtual arbitration. The IAF protocol also provides a solution for evidence recording. Keeping in mind the constant need, the Indian Legislature has enacted amendments in enhancing pro arbitration regime.
He added that “2019 Amendment is a positive modification in the legislation in promoting arbitration”. Further, he said that “an increase in litigation has given a paradigm shift in arbitration and potential to defeat pendency of litigation”.
M Damodaran, Former Chairperson of SEBI remarked that “disputes arise because each of the contending parties believes that the rights of the parties matters”
He stated that “one cannot rule out disputes but can minimalise the disputes”. He remarked that “mediation is the younger brother of arbitration. Today, if arbitration and mediation are not given importance, we will continue to flood the courts with litigation and the costs”.
He further said that “the change to shift to arbitration does not happen overtime. To reach the pro arbitration regime, proper training and institutional arbitration are the answers.”
Justice Akhil Khureshi, Former Chief Justice of Rajasthan, said that “in the name of party autonomy, parties ca choose seat, formation of arbitration tribunal but they cannot decide everything such as Section 12 of Arbitration Act”
Concerning whether Arbitration is fully successful, he said that “arbitration in India is a default choice but time to make it is as first or preferred choice.
Justice Khureshi said that “Section 11 should be avoided as far as possible and suggested for solo arbitrators considering the challenges in having three busy arbitrators.”
He further added that every amendment or change in provisions brings fluidity in situations or uncertainty. 2015 Amendment was the most welcome, but 2019 Amendment was not thought through. The courts can only set aside the award but cannot cure any defect which leads to a difficult situation as courts should be empowered to cure minor defects.
Justice Somasekhar Sundaresan, Judge Bombay High Court, said that “efforts like this seminar are very important for capacity building and if we wish to make arbitration successful, capacity building plays a vital role.
On drafting he remarked that “the exercise of drafting a solution is absent. Laziness in contract drafting is a reality.”
On role of General Counsels, he said that GCs also need to figure out that how much apportionment lies on them. On third party funding, he said that when money chases an asset (particularly scarce asset), then the asset changes its form.
Vyapak Desai, FCIArb-Leader, Nishith Desai Associates, delivered vote of thanks.
- Deepa Sood, Vice President Legal, Metro Brands.
- Amber Gupta, FCIArb, Head Corporate Legal, Aditya Birla Capital.
- Shujath Bin Ali, General Counsel, Re Sustainability.
- Atul Juvle, FCIArb, Independent Director & Consulting-General Counsel of Schindler India Pvt. Ltd.
Dr. Shashwat Bajpai, FCIArb, Founder Partner, DRSB Law Chambers, gave the introductory remarks on the Session 1 Topic. He started by quoting – NOT EVERYONE CAN BECOME A GREAT ARTIST; BUT A GREAT ARTIST CAN COME FROM ANYWHERE which fits perfectly into the topic – Not everyone can become a great ARBITRATOR. He added – that we must defenestrate this long standing thought-process that we cannot have dispute resolvers from the non-legal field.
Amber Gupta remarked that “Dispute avoidance mechanism is not just role of General Counsel but an organisation as a whole”. He also said that “most of the judgments/ orders you are reading is based on the Arbitration clause itself and if the same is not drafted well, it may cause confusion. As a general counsel, we spent time in drafting an arbitration clause well. The commercial understanding of the contract plays a critical role”.
He further said that “the commercial understanding of the contract plays a critical role. Commercial understanding, business understanding and practical understanding of the situation saves a lot of time in dispute resolutions”.
He suggested that while drafting a large contract, risk assessment and use of AI tool can help in a proper resolution of disputes.
On the question asked by Mr Sonal Singh, whether AI is a threat to arbitrators, Deepa Sood said that “the use of AI can help us in reducing our burden but human intervention will always be required. Hence, it is not a threat.”
Atul Juvle while agreeing with Deepa Sood, said that “cut and paste doesn’t help. It is the duty of GCs to review the judgment before sending to the final authority.”
Session II: Mediation Momentum in India: Trends and Strategies
Moderator: Mr Prathamesh D. Popat, Chairman, IMC Mediation, Conciliation and Facilitation Committee
Speakers: 1. Mr Sanjay Jain, Mediator, Arbitrator and Counsel Bombay High Court;
2. Ms Karishma Vora, Barrister, 39 Essex Chambers;
3. Mr Deepak Narayanan, MCIArb, Partner at BDN Chambers;
4. Ms Mumtaz Bhalla, MCI Arb, Partner, Economic Laws Practice
On the question of preventing from escalating to disputes, Dr Sanjay Jain said that I equate Medication to Mediation. Medication helps preventing surgeries and Mediation helps in preventing litigation.
Ms Mumtaz Bhalla says that in Delhi Samadhan is a welcome change in Mediation. While I agree that pre-litigation can resolve number of litigation but it is also true to commercial dispute that in most cases, there is an urgent release requirement.
The culture which needs to be built to reach to pre-disputes settlement for commercial disputes as well.
On the question relating to stringent jurisdictions in UK, Ms Karishma Vora says the stringent jurisdictions are to use mediation table. There are now talks to bring compulsory mediation for small amounts as well.
Ms Mumtaz Bhalla adds by saying that when something is onerous, it is important to build the trust on process. To make it more effective, it is important to work around the rules, the shorter timeline of mediation process is required.
On the question of a good mediator, Ms Karishma Vora says that there are full time mediators which makes a difference. She also points on ‘Shadow Mediators’ where if someone who is not a qualified mediator but has worked with a best mediator or has become a shadow of a great mediator, they will be ‘Shadow Mediators’.
Session III
Role of Third Party Funders, Experts and Chambers in Arbitration
Mr Ashwani Kakkar, Board Member, Legal Pay speaking about Third Party Funding. As far as litigation funding is concerned, the outcome only happens when there is financial recovery and the outcome is shared with the third party funders.
Mr Amit Naik, Managing Partner, Naik & Naik discussed tomorrow sales case in which it held that funders are not liable to pay costs. Singapore has a practice note where they define the liabilities and India too need to define the liabilities in terms of recovering capital from the funders.
Mr Arcoprovo Mitra, Senior Director, Alvarez and Marshal says experts play a role in breaking the objectivity in identification of documents and resolve the matter.
Mr Vishal Gandhi, Founder, Gandhi & Associates talks about the experts appointed by Tribunal and the role of experts in impartiality and being a crucial matter with respect to expert witness.
Ms Banu Dandona, Joint Director, ICSI focusses on training of experts which is an essential part. Also, how to draft an arbitral award which is enforceable is also an important point of consideration.
In Session 4 the panel discusses on how CiArb As an Institution helps in Promoting and Assisting in Developing an Eco-system in ADR. The panel of Session 4 consists of following:
Mr Nussrat Jahan, Secretary, CiArb
Mr Vyapak Desai, Leader, Nishisth Desai
Ms Neeti Sachdeva, Registrar MCIA
Mr Hasit Seth, Arbitrator and Counsel, Bombay High Court
Mr Hussain Somji, Counsel, Chambers of Ketan P PArikh
Ms Neeti Sachdeva, throws some light on various tutorials available in CiArb.
While talking about CiArb and its role, Mr Vyapak Desai says that there are no set qualification to become an arbitrator. Hence, there are institutions like CiArb which are established to provide learnings for arbitrators and provide for detailed course structure.
Mr Hasit Seth talks about aspirant goals at CiArb and shares his experience of joining CiArb.
The Advocate General of Maharashtra, Mr. Birendra Saraf in his valedictory address emphasised the need for formally training arbitrators. He also said that arbitrator training should be extended till district level and not be limited to just metropolitan cities. He shared his experiences about good arbitration practices from his extensive career. Training, he said, should be understood as both learning and unlearning. He encouraged the young lawyers to get formally trained in arbitration.
Training, training, training, this was the buzzword of CIArb Conference in Mumbai. There is no substitute for training. Years of experience as a judge or as a consul is not enough. One needs to unlearn lot of baggage of the past and absorb fresh knowledge and skills in the field of arbitration and mediation. This was emphasized by speakers after speakers in the conference. CIArb is an institution of great eminence imparting training in arbitration. It’s accreditation is recognised by arbitral institutions world over