Delhi Arbitration Weekend , 2024: The Supreme Court of India and the High Court of Delhi present DAW 2024, the second edition of the flagship event of the Delhi International Arbitration Centre. Over the course of four days, likeminded individuals come together, exchanging ideas and thoughts over contemporary issues and trends in the realms of domestic and international arbitration. DAW 2024 comprises of focused sessions, curated to serve the need for discussion on the most pertinent themes in arbitration today. DAW envisions developing a key understanding amongst participants representing the global arbitration community on various aspects discussed during the weekend.
Inaugural Session
Topic: Understanding the Unsaid: Biases in Arbitration and the Role of Tribunals and Courts
Welcome Address: Justice Manmohan, Acting Chief Justice, High Court of Delhi
Keynote Address: Justice Judith Prakash, Senior Judge, Supreme Court of Singapore
Plenary Address by Chief Guest: Dr. Justice D.Y. Chandrachud, Chief Justice of India
The welcome address was given by Justice Manmohan, Acting Chief Justice, High Court of Delhi. He said that “this conference is an endeavor to leave a footprint on the Indian subcontinent. DAW is a flagship conference of DIAC. The centre has constantly been evolving as a trusted arbitration centre in the country. It has carved a niche for itself by providing a trusted space for dispute resolution.”
Briefly touching on two aspects that make up the contours on the issue of arbitration, he said that “the first is the disqualification of arbitrator on the ground of apparent biased. The second issue is the bias of system and institution to systematically favour few institutions , called systematic bias.”
He quoted Late Senior Advocate Fali Nariman from a talk he delivered in 1988 titled ” Standards of behaviour of arbitrators”. He quoted that “the real trouble about telling judges and arbitrators how to behave is that the respectable ones do not require the advise, the disreputable ones do not care to heed it”
Justice Judith Prakash, Senior Judge, Supreme Court of Singapore said that today’s topic needs some unpacking because the history of bias is one that the Courts, Tribunals , Institutions deal with sometimes. The topic implies two things, first the parties are advised to choose arbitration maybe reluctant because they fear bias on the part of the arbitrator appointed by the other side. The second bias is that the arbitral tribunal acting in good faith may not be aware that their actions reflect bias.
She said that “bias is an issue that is particularly important in arbitration.”
She remarked that “the Singapore International Arbitration Centre (SIAC) has produced a code of ethics for arbitrators which is sent out to all prospective arbitrators in a SIAC administered arbitration.”
She further added that “the Code of ethics ensures that there is no bias in the arbitration procedure. In Singapore, the duty of disclosure , emphasises the duty applies both before the arbitration and during the course of arbitration.”
She said that “India adopts a slightly different position for arbitrator impartiality as Singapore. In 1987 and again in 2005 the Indian Courts have stated the relevant tests for arbitrator impartiality is whether there is a reasonable apprehension of bias from the viewpoint of the party concerned. The test is an objective one, but deploys the perspective of the party rather than that of the disinterested fair minded person.”
She concluded with few words about whether there is a role for enforcement Court in relation to bias.
Dr. Justice D.Y. Chandrachud, Chief Justice of India released the Delhi Arbitration Review, the journal of DIAC published by the Eastern Book Company in the presence of Justice Manmohan, Justice Judith Prakash, Justice Vibhu Bakhru and Justice Rekha Palli.
Dr. Justice D.Y. Chandrachud, Chief Justice of India said that DAW has outdone itself year after year. This event is truly one in itself. The association of Supreme Court with this event which is curated by Delhi High Court judges and the bar in Delhi is truly a message not merely across our country but also the world, that we judges stand behind the legitimacy and credibility of arbitration.
He remarked that “we must look at biases that effects outcomes, but also biases in selecting who decides these outcomes.”
He said that “the onus to tackle biases of all forms cannot lie on Courts or national legislatures, a huge share of the responsibility shall be borne by the arbitration community.”
He further said that “Indian arbitrators are currently underrepresented in international arbitration. I see no reason why highly qualified Indian arbitrators cannot be appointed in disputes that do not involve Indian parties as well, in the same way the experienced European arbitrators are often appointed in disputes having no European connections.
He concluded by urging all those associated with arbitration to look beyond the letter of law when they think of biases or impartiality. He said “unless we change our perspective , challenge our assumptions , and actively strive for diversity and inclusion we risk perpetuating the biases we seek to avoid. After all, if we all are thinking the same way, none of us are really thinking.
THURSDAY – 7-03-2024
Hosted by: International Chamber of Commerce
Topic: Riddles of Righteousness in Arbitration: An Ethical Dilemma
Chair: Justice Uday Umesh Lalit, Former Chief Justice of India, Supreme Court of India
Speakers:
Tejus Chauhan, Director, South Asia, ICC International Court of Arbitration
Prashanto Chandra Sen, Senior Advocate
Kelvin Poon SC, Deputy Managing Partner, Head, International Arbitration, Rajah & Tann Singapore LLP ,Parnika Chaturvedi, Partner, Quinn Emanuel
Justice UU Lalit: “We at the Supreme Court as judges sit under the emblem of the Court which reads ‘Yato Dharma Tato Jaya’. It means whatever is right on the path of righteousness must always succeed. This was the ashirwaad given by Gandhari to her son Duryodhana. She said if you are right you shall succeed.” Hinting towards the arbitration context, he added that “What we normally consider is that independence and impartiality is the key to success in arbitration. There is one more ‘I’ that is integrity.”
On question regarding arbitration law being unsettled, Justice UU Lalit said that “the law by very nature has very dynamics to it. We live in a jurisprudence that keeps on evolving. One cannot blame the system , that is evolution.”
Ms. Parnika Chaturvedi through the reference of a Nigerian case – Federal Republic of Nigeria v. Process & Industrial Developments Ltd., [2023] EWHC 2638, pointed towards the potential allegations of corruption and fraud in the arbitration process and commented that “In different jurisdictions, it is dealt with differently. It is a very tricky area in arbitration where different arbitrators deal with it differently.” Hinting at the arbitrator’s duty to render an award which is enforceable, Ms Chaturvedi questioned “but to what extent do you push that duty to hearing?”
Mr. Kelvin Poon SC regarded the topic of discussion to be ‘vexed and difficult one’ and added that “The allegations of fraud and corruption must touch on the underlying issues concerning the dispute. The Tribunal cannot go on a broad ranging investigation on its own.” Coming to a prior discussion on the legal profession, Mr. Poon further commented that “We lawyers are in a bit of a unique position because when we advice clients to do what is right, even if there’s no one to decline this once, that tends very much to be a decision and action that optimally benefits the client. We lawyers should do our jobs properly and make sure that we only advance claims that are right and correct.”
Senior Advocate Prashanto Chandra Sen started with quick insights “Fraud is something which is black and white” while hinting that fraud vitiates arbitral process. He further explained that “There is an interplay between the spirit of arbitration where does it end and where does fraud begin.” Pointing towards Section 29A of the Arbitration and Conciliation Act, 1996, which requires pronouncement of the award within one year after completion of pleadings, Mr. Sen applauded the same to be a beneficial provision being useful in the longer run. Talking about representation from the Public sector, he added that “each public sector has a vigilance cell. Thus, if officers of public sector are very relaxed about the timelines and not following the right practices, then vigilance cell needs to be included.”
Discussing the turning point of the judgment in Federal Republic of Nigeria (supra), Ms. Shania Elias talked about disclosures and undue delay and compared between the Nigerian case and the one before the Singapore Court.
Session II
Hosted by: Singapore International Arbitration Centre
Topic: Past, Present and Future of SIAC Arbitration
Chair: Hon’ble Mr. Justice Arjan Kumar Sikri, Former Judge, Supreme Court of India
Speakers:
Ms. Shwetha Bidhuri, Director & Head, South Asia, SIAC
Mr. Alastair Henderson, Southeast Asia Head of Arbitration Practice, Herbert Smith Freehills LLP
Mr. Vijayendra Pratap Singh, Senior Partner & Head Litigation, AZB & Partners
Mr. Ankit Goyal, Partner, Allen & Gledhill LLP
Justice AK Sikri talks about SIAC being a comparatively young institution and says that there is a lot to learn from SIAC and its success stories. Thus, discussing the past, present and future of SIAC. The nature of arbitration is changing, thus arbitration institutions need to make pace with the same. To just be in the league and to give comfort level to the parties. Arbitral Tribunal has to keep pace with what is happening around and make changes in the Rules. He added that “India plays an important role as far as SIAC arbitration is concerned. There are many cases from India. Indians are in love with Singapore for various reasons.”
He also said that “Because there is more ad hoc arbitration in India, and to keep pace with what is necessary now , we amend the Arbitration Act. In the last 2019 amendment there was a suggestion for emergency arbitration. But it was not incorporated. But thanks to the Judiciary, we recognised emergency arbitration.”
Ms. Shwetha Bidhuri cherished the strong relationship between SIAC and India and commented that “SIAC has grown in India. In the last 10 years, we have seen over 2100 Indian parties using SIAC. This shows the trust the Indian have in SIAC. With India becoming a seat for arbitration, 10 percent cases are happening in India.”
Mr. Vijayendra Pratap Singh in his own style started with “Coming on to how I read SIAC is – SINGAPORE INDIA ARBITRATION”. He added that “SIAC relationship is one of a partnership rather than just transactional handling up of matters.”
Mr. Alastair Henderson remarked that “We should not overlook the fact that SIAC’s success is a reflection of Singapore’s success and its position. SIAC has been relentless in improving, innovating to arrive at excellence. Singapore has benefited from its openness in International arbitration.”
On Accessibility to information, Mr. Ankit Goyal suggested that SIAC as an institution needs to do more as far as access to information is concerned. Talking about publication of redacted arbitral awards, he further said “Arbitration will benefit , commercial jurisprudence will benefit with the publication of redacted awards.” He also added that “If the streamline procedure gets accepted in India then that will be a trend worth watching.”
Session III
Hosted by: London Court of International Arbitration
Topic: Selection and Challenges of Arbitrators
Chair: Hon’ble Mr. Justice L. Nageswara Rao, Former Judge, Supreme Court of India
Speakers:
Prof. Dr. Jacomijn van Haersolte-van Hof, Director General, London Court of International Arbitration
Mr. Manish Aggarwal, Partner and Head of India Practice, Three Crowns LLP
Ms. Sherina Petit, Partner & Head of International Arbitration & India Practice at Stewarts Law
Mr. Anand Desai, Managing Partner, DSK Legal
Ms. Radhika Bishwajit Dubey, Independent Counsel, Arbitrator introduced the speakers for the session.
Justice L. Nageswara Rao “Everywhere in the world, you see the institutes making appointments of arbitrators. Here in India, the majority of arbitrations are ad hoc arbitrations and it is the parties’ autonomy to select the arbitrators, and more often, the do not agree.” Commenting upon appointments of arbitrators by the High Courts or the Supreme Court in specific matters, Justice Nageswara cautioned that “One problem that is arising is that the retired judges or even the other arbitrators who are appointed are not spoken to before appointments are made.”
Prof. Dr. Jacomijn van Haersolte-van Hof stated the different approach at LCIA prioritising the method agreed to by the parties, transaction at stake, nature of dispute, etc. as compared to others that “What we see in international institutional arbitration in particular is that there really are two flavours – 1 flavour is that the parties nominate and either the party nominated arbitrators choose the presiding arbitrator or the institution chooses the presiding arbitrator, or alternatively, all 3 arbitrators or the sole arbitrator is selected by the arbitral institution.”
When asked as a counsel appointing a party appointed arbitrator, Ms. Sherina Petit added that “The first thing is when I am looking at the selection and am acting as a counsel, I try to work out the psychology with the other side. What is the goal of the other side? What game is the respondent going to play?” She also batted for appointment of an arbitrator who is ‘fair but firm’.
Mr. Manish Aggarwal compared the cases of co-arbitrators and the presiding arbitrator. “Most arbitration agreements do not really go into much detail in terms of the method for appointing a presiding arbitrator.” Hinting towards the party autonomy trends, he added that “In most of the cases, more often than not, both parties do not prefer to loose control on the process by going to the appointing authority, be it an arbitral institution or the national courts.”
Mr. Anand Desai expressed that “In my experience over the last almost 40 years, I think Indian arbitrations have evolved to a very large extent from the kind of claims that used to go to arbitration to what they are now.”
Session IV
Hosted by: Permanent Court of Arbitration
Topic: Investor-State Dispute Settlement (ISDS) in 2024
Chair: Mr. Justice V. Ramasubramanian, Former Judge, Supreme Court of India
Speakers:
Ashwita Ambast, Legal Counsel, Permanent Court of Arbitration
Amit Sibal, Senior Advocate
Kenneth Beale, Partner, Jenner & Block
Sapna Jhangiani, KC, International Legal Counsel, Attorney-General’s Chambers, Singapore
While introducing the topic – ISDS in 2024, Justice V. Ramasubramanian interestingly mentioned the Convention on the Settlement of Investment Disputes and discussed a few examples calling upon the speakers to throw light upon specific aspects.
Senior Advocate Amit Sibal talked about Bilateral Investment Treaties (BIT) to mention the fact of India entering into 79 BITs during 1994-2010. From 2011 to 2024, the number of BITs was 4 and terminated 76 out of 87 BITs already entered into with only 8 BITs remaining in force. He further explained that “The problem arises with – What the standard of treatment should be?”, hinting towards the Fair and Equitable Treatment (‘FET’) clause which does not bring any normative guidance regarding the limit of discretion for the ad hoc arbitral tribunal which interprets the same. He also raised the Most Favoured Nation (‘MFN’) clause.
Ms. Ashwita Ambast discussed about the Code of Conduct which the arbitrators need to follow. Pointing towards ‘Double Hatting’, she added that “It’s a problem because it opens the possibility of that particular individual making rulings in their capacity as an arbitrator that could then benefit them in their actions as a counsel.”
Mr. Kenneth Beale started with discussing reasonable and rational thoughts of people opposing and supporting ISDS debate and expressed that “ISDS, which during COP 10 was seen as this very green, wonderful thing is now seen as the enemy of the climate change to the extent that some people seem to think that if you support ISDS, you’re going to increase climate change by 2-3 degree Celsius above the COP levels”. He further explained that “Those who oppose are winning because there is an interesting alliance happening right now between those who are genuinely concerned about climate change and those who really don’t care about it.”
Ms. Sapna Jhangiani said that “We live in a fractured world where there is more room for peace than ever. There’s a lot of enthusiasm for mediation at the moment, we have lots of instruments, but not much take up. Why is that?” While hinting towards the three reasons for the same, she named Accountability, context of mediation in ISDS being too premature, and the outcome that the dispute may have on environmental or social impact in a civil society.
FRIDAY – 8-03-2024
Session I
Topic: ‘The State of Arbitration’: Navigating an Arbitration Involving State-owned Entities
Chair: Justice Hrishikesh Roy, Judge, Supreme Court of India
Speakers:
Justice Senthilkumar Ramamoorthy, Judge, High Court of Madras
Tushar Mehta, Solicitor General of India
Fionn Pilbrow KC, Brick Court Chambers
Swee Yen Koh SC, Partner, WongPartnership LLP
Justice Hrishikesh Roy started with the mention of his personal experience on women’s day that “My household is a women dominating household. We are parents of two daughters and my wife is there, so I have to acknowledge the International Women’s Day.”
Coming to the topic of discussion, Justice Roy commented that “When you have decided to choose arbitration, all the stakeholders in the process, including the state entities must understand and be prepared to follow the rules of arbitration.” He cautioned that “If you don’t know the rules of the game, you are not likely to be on the winning side. So the State entities need to make sure that they have onboarded at least one person on the team who is familiar with the regime of international arbitration.”
Justice Senthilkumar Ramamoorthy while talking about domestic arbitration, focused upon infrastructure and construction arbitration. He remarked that “I think a lot of problems associated with arbitration involving State entities turns on contract formation phase.” He further raised issues like unavailability of site, lack of approvals, etc. which prove to be hurdles in commencement of the contract.
Mr. Tushar Mehta discussed the issues with arbitral contracts of state owned entities that “Arbitration with regard to State owned entity is that they have their own inbuilt problems. Some problems may perhaps have some legislative solutions, some problems may perhaps have some administrative solutions.” He further hinted towards and disclosed that the real problem faced by the State owned entities, particularly in construction and infrastructure contracts is that some big companies have arbitral awards as their main source of income, since they give a bid unbelievably high which later leads to arbitration running into thousands of crores. He further raised concern that many State entities, Public Sector Undertakings (‘PSUs’) are seriously taking a call of not providing for an arbitration clause in their respective contracts because of under the present regime of arbitration law, the award is final and there is very narrow scope of interference in the absence of right to appeal.
He also discussed the issue of non-availability of good and independent arbitrators. He added that the Indian Government is fully committed towards encouraging Arbitration as the most effective dispute resolution mechanism. The Government is encouraging the Arbitration in two broad categories, firstly in PSUs and secondly is ‘Vivad se Vishwas’ meaning, ‘from dispute to trust’. He also ensured that there was no slightest intention of the Government to dilute the mandate of the Arbitration Law, namely, the party autonomy, limited challenge and immediate enforcement. He also highlighted that even in case of good Arbitral Awards, challenges come up as in case of private entities, there would be one or few decisions maker, however, in case of PSUs, the officials are floating population, and the decision making is collective.
Speaking of the issues that arise when it comes to State owned entities, Mr. Fionn Pilbrow KC highlighted the fact that they may be commercial entities, but they do not operate in the same way. He further shared his experience of cases where you potentially claim against the State for the liquidation of State entity for the purpose of avoiding that debt, then you have a claim against the State for its wrongful actions by liquidating the entity.
Ms. Swee Yen Koh SC threw some light upon the importance of an arbitral seat and the applicable law and added that “It goes to the arbitral process when the dispute is brewing and you start the arbitration process, and you choose and think – ‘Who are the best arbitrators for this case?’ The idea is that the state owned entity is associated with the State.” She expressed that “At the end of the day, what is the most important is not paper work or paper judgment. It is to turn this into the real monetary benefit for the client.”
Session II
Topic: Joinder of Non-signatories in Arbitration Proceedings: Analyzing the ‘Group of Companies’ Doctrine – Perspectives from India, U.K., and Singapore
Chair: Justice M. M. Sundresh, Judge, Supreme Court of India
Speakers: Justice Bharati Dangre, Judge, High Court of Bombay
Aspi Chinoy, Senior Advocate
Chong Yee Leong, Partner, Allen & Gledhill
Shanelle Irani, International Arbitration Associate, Wilmer Cutler Pickering Hale & Dorr LLP
Justice M. M. Sundresh gave a bird’s eye view of the topic of discussion and explained that “arbitration in my mind can be compared with a cricket match, being a cricketer myself. When two teams play, agreeing on a set of rules, the role of the umpire becomes defined.”
Justice Bharati Dangre discussed ‘Doctrine of Group of Companies’ to hint at binding even non-signatories into arbitration agreement and a common criticism faced by the same in the words “It violates the basic principle of a separate legal entity, a hallmark of corporate law. Then the main question that arises is – How under the guise of group of companies doctrine, whether they would be made to undergo arbitration?”
Senior Advocate Aspi Chinoy explained that “The topic that we are dealing with really exemplifies the tension that sometimes arises between law and economic realities, and the attempt by one to catch up with the other. The topic talks of Group of Companies, and as the terminology is, I am reminded of ‘Humpty Dumpty and Alice in Wonderland’, where Humpty Dumpty said ‘It means just what I choose to mean – nothing more, nothing less’, and Alice said ‘whether you can make words mean so many things’.”
Mr. Chong Yee Leong discussed a few cases to raise a question as to “Whether the facts of the case impose an implied agreement on the parties? While they look at whether the companies will invoke negotiations, performance or termination”
Ms. Shanelle Irani started with a question that really arises according to her as to “Why or where does the controversy really come from? In my personal opinion, it really comes from misunderstanding of the doctrine, or the over expansion of it.” While raising concern around the ‘implied consent’, Ms. Irani explained that “Arbitration is a consensual form of dispute resolution as opposed to if we go to the Court where the Court does not draw its jurisdiction from the parties’ consent.”
Session III
Topic: Back to the Basics: Global Perspectives on Challenges in Enforcing Arbitration Clauses
Chair: Justice J.K. Maheshwari, Judge, Supreme Court of India
Speakers:
Justice Sunita Agarwal, Chief Justice, High Court of Gujarat
Vijay Narayan, Senior Advocate
Andrew Onslow KC, 3 Verulam Buildings
Siraj Omar, SC, Managing Director, Drew & Napier
Justice J.K. Maheshwari, Judge, Supreme Court of India, said that “arbitration in the Indian Landscape has witnessed a sea change over the last two decades. The hallmark of the arbitration process that is party autonomy, minimum judicial intervention and speedy and efficient dispute resolution have been the guiding light for the Indian Courts.”
He added that “Indian Courts are consistent in respecting and deferring competence-competence and delegating matters fit matters to the Arbitration Tribunal for its decision.”
Justice Sunita Agarwal, Chief Justice, High Court of Gujarat talked about issues and contract of edition: Arbitrary and unconscionable clauses, Multitier clauses, Dispute resolution clauses.
On the effect of non-compliance of the tiered arbitration clause respective from various jurisdictions, Andrew Onslow KC, 3 Verulam Buildings from the English law perspective, said that the English law approach to multitiered clause in contracts is pretty well established.
Siraj Omar, SC, Managing Director, Drew & Napier, said that “the position of tiered arbitration is settled in Singapore. The position is that strict compliance is required.” He also throwed some light on how the issue of arbitrability is dealt in Singapore.
Concerning enforcement of arbitration clauses in case of serious fraud allegations, Vijay Narayan, Senior Advocate said that in the Indian Context there are many situations where arbitration clauses are not enforced by the Courts. He said that fraud should be such that it must include the aspects of criminal law as well.
Session IV
Topic: Where do we stand?: Revisiting the Investor-State Dispute Settlement (ISDS) Mechanisms in Light of Today’s Economic Challenges
Chair: Justice Vikram Nath, Judge, Supreme Court of India
Speakers:
Justice Mamidanna Satya Ratna Sri Ramachandra Rao, Chief Justice, High Court of Himachal Pradesh
Aryama Sundaram, Senior Advocate
J William Rowley KC, Arbitrator, Twenty Essex Chambers
Melanie Van Leeuwan, Partner, Derains & Gharavi
Giving the broad overview of the topic, Justice Vikram Nath, Judge, Supreme Court of India, said that the ISDS mechanisms serves as a crucial bridge ensuring disputes are settled fairly, balancing investors rights with the nation’s sovereignty, to legislate for the public good and environmental protections. In the era of business, the ISDS mechanism fosters economic growth by providing a reliable conflict resolution pathway, it encourages foreign investment.
He said that “if India is to pursue its role of stable economic development, it is vital to instill confidence in investors, especially foreign investors due to risk involved in inter country financial investment.”
Concerning shrinkage of Foreign direct investment, he suggested pro investor policies with lessor restrictions must be balanced with sovereign state’s interest as a host country.
Sharing his views on critical areas of concern in ISDS mechanism Justice Mamidanna Satya Ratna Sri Ramachandra Rao, Chief Justice, High Court of Himachal Pradesh, said that “the areas of concerns are State sovereignty versus investors protection, ISDS mechanism developed world centric, alleged lack of transparency in ISDS, concerns about appointment of arbitrators in arbitration, third party funding.”
He said normally arbitration is by mutual consent, but in ISDS is different because there is an open-ended acceptance of an arbitrator power by States.
Melanie Van Leeuwan, Partner, Derains & Gharavi addressed India’s approach towards ISDS, economic challenges, relation between the economic challenges and ISDS. She also dealt with various other dispute resolution models adopted by other States.
J William Rowley KC, Arbitrator, Twenty Essex Chambers said that India is the fifth largest economy in the world, expects to be the third largest and has a real chance to be number one by 2050, what India needs is Foreign Direct Investment.
He remarked that “India has a wonderful opportunity ahead itself, not just for arbitrators, there is the opportunity to excel by enabling your companies to get out there and do better and to be protected when they do so.”
He opined that there is a need to reconsider policies.
Aryama Sundaram, Senior Advocate said that the topic indicates two things, first the ISDS is not working very well and second the economic climate both in India and internationally requires a mechanism.
Going back to the basics, he said that the origin of all these treaties was to hold out promises to investors, to enhance trade opportunities and to protect investments.
He said that two investors from their respective countries can be treated on a different footing in India when they seek recourse, is a problem. The complete curtailing of the jurisdiction of the ISDS is another problem. The biggest problem is the ISDS cannot review the merits of a domestic judicial authority.
Closing Session
Venue: Auditorium, S Block, High Court of Delhi
Topic: Building a Safe Arbitral Seat: Harmonizing National Interest and International Expectations
Special Address: Mr. R. Venkataramani, Attorney-General for India
Special Address: Mr. V.K. Rajah SC, Arbitrator and Mediator, Duxton Hill Chambers
Address by Guest of Honour: Mr. Arjun Ram Meghwal, Minister of State, Ministry of Law and Justice
Address by Chief Guest: Mr. Justice Sanjiv Khanna, Judge, Supreme Court of India
Vote of Thanks: Mr. Justice Vibhu Bakhru, Chairperson, Delhi International Arbitration Centre
In his Special Address, Mr. R. Venkataramani, Attorney-General for India, greeted everyone on the closing of the session.
The birth of the Indian Arbitration Bar is overdue. He reminded in the presence of Minister of Law and Justice about the birth of the same. He says that the Arbitration slate is more or less fully written and its algorithms are spread in all trades, commerce and exchanges, both private and governmental.
Maybe there is a need for broader fray and mutually beneficial borrowings and not uni-directional. The dispute resolution process cannot be in isolation from the rest of the transactions and come in a disconnected way, it will be worthwhile if contract formation and including treaty instruments chart new and flexible formations for dispute resolution.
India can share a few changes in the scheme of court intervention and institutionalisation of many features. He pointed some of the recommendations of the Committee appointed by the Central Government. He quoted from the literature on Asia- Pacific region regarding the culture of International Arbitration, “international Arbitration superiority and innocence is not greater than a function of particular Arbitrator who sit in the judgment of particular case involving diverse parties from the world in Court”.
He talked about the New Delhi Convention as the next platform for drawing up inter-continental Arbitration norms. He says that we should move towards setting up of the Asia- Pacific Arbitration roundtable to begin with and commence the journey with handbook on what needs to be done on domestic concerns and International outlook.
Special Address by Mr. V.K. Rajah SC, Arbitrator and Mediator, Duxton Hill Chambers. He says it year 2040 and Indian counsels and Indian Arbitrators are highly sought after not just by Indian clients but certainly in Asia and possibly globally.
He talks about the reality of Indian Arbitration and says that the Vendanta decision placed the Indian Arbitration jurisprudence on the right path. He says that the aspiration of making India a global hub is a wrong aspiration, as it is not the Country but a City which needs to be chosen as the centre. If it is going to be Mumbai or Delhi or Hyderabad or Bangalore or a combination of the cities. He says that these decisions today are going to impact the 2040 scenario.
He talks about the journey of Hongkong and Singapore as the recognised States in Asia region. It requires whole lot of the Country, Government and not the single centres, the Bar, Judiciary to reach there.
He says that India has the benefit of demographic dividend, it attracts the best minds, compensates well, interesting work and has International mobility. Opportunities such as DAW are wonderful not just to talk about the good but also about what can be improved. He also calls out for world class LLM programme on Arbitration and expresses his concern about the students travelling abroad for the same to UK, Singapore, etc. Academics should also be allowed to practice as Counsels or Arbitrators to attract the best minds.
He says that he is in complete agreement with Justice Rohinton, who said that there is a need of specialised Judges.
Address by Guest of Honour: Mr. Arjun Ram Meghwal, Minister of State, Ministry of Law and Justice
He appreciates the initiative of brining DAW and calls it an amazing event where for a whole week the subject was contemplated extensively. He discusses the role of Lord Krishna in Mahabharata and calls him the biggest Arbitrator and Mediator of the world. He agrees with Mr. VK Rajah about the importance of and improvement of ethics, education and Courts to develop Arbitration in India.
Hon’ble Mr. Justice Sanjiv Khanna, Judge, Supreme Court of India, in his address speaks on the topic- Building a Safe Arbitral Seat: Harmonizing National Interest and International Expectations.
He says that there are four standard elements:
1. Clarity and certainty of procedure as substantive law that govern the dispute.
2. efficient and cost effective process
3. decision and outcome should be recognised and enforceable in the opponent’s country.
4. procedure for enforcement and execution should be quick and easy.
He says that the dispute resolution in trans-border disputes suffers from the above elements.
n the absence of any treaty or understanding with the reciprocating country, it requires domestication action.
The Hague convention which governs the enforcement of Judgments of one nation into another nation has not gained universal acceptance. The problem of recognition and enforcement of foreign court’s awards has been dealt with by the New York Convention and it received recognition with 172 signatories.
He highlights the consideration and challenges in arbitration. Such as the:
1. Lex Contractus or
Substantive Law – Law governing the contract.
2. Lex Arbitri or
Procedural Law – Law governing the arbitration proceedings.
3. Law governing the
Lex Contractus or
Substantive Law – Law governing the contract.
4. Law governing capacity of the parties to arbitrate.
5. Lex Executionis – Law governing the land of enforcement of the award.
6. Unfamiliar foreign laws, language and systems.
7. Affiliation bias amongst arbitrators – cognitive predisposition in favour of a litigating party.
Vote of Thanks: Hon’ble Mr. Justice Vibhu Bakhru, Chairperson, Delhi International Arbitration Centre
He thanks all the eminent chief guests and the attendees. He expresses his gratitude on the behalf of the DIAC to the Chief Justice of India, Dr. DY Chandrachud. He also thanks all the Judges of the Supreme Court and the Delhi High Court for extending their support and the organising teams.
