The Mumbai Centre for International Arbitration (MCIA) is organising the fourth edition of the India Alternative Disputes Resolution Week this year from the 23rd to the 28th of September, 2024. Three states- Bengaluru, Mumbai and Delhi will be hosting the participants this year for the IAW. The event kickstarted in Bengaluru on 23rd September 2024 with follow up sessions in Mumbai and Delhi.
The IAW aims to discuss the international best practices in alternative dispute resolution bringing together seasoned practitioners, legal professionals, scholars, and industry experts to brainstorm and arrive at some meaningful and constructive solutions to pertinent challenges
Day 1 of IAW 2024, Bengaluru: Significance of technology in ADR: Making Bengaluru a hub for dispute resolution and mechanics around ODR.
The inaugural session in Bengaluru witnessed some very engaging discussion from expert panelists discussing contemporary issues in Arbitration, Shareholder Disputes, Future of Artificial Intelligence (AI), Online Dispute Resolution (ODR), and Role of technology in Alternate Dispute Resolution (ADR).
Panel discussion: ‘Arbitration of Shareholder Disputes’.
The first session was moderated by Ms. Manasa Sundarraman, Counsel, Trilegal. He opened the floor for discussion after highlighting the main themes of the session- shareholder disputes in arbitration, key legal frameworks, international best practices.
Mr. Arun Kumar, Senior Advocate, provided an overview of shareholder disputes, highlighting that disputes were not a present creation, they had existed even in the past. He emphasised that disputes pertaining to a corporation are generally centred around control of the company; voting rights; composition of the Board; and appointment of Directors. They could include but are not limited to the distribution of dividends, and profit, stock valuations, share transfers, Oppression and Mismanagement, Fraud, Breach of Federal duties, Mergers and acquisitions. According to Mr. Kumar – ‘controlling interest in the company’ occupied a higher spot amongst all the disputes. However, he said that the minority shareholders were not as helpless as in the past and had considerable amount of clout even without a majority interest.
Mr. Prasad Subramanyan, Director & Head Legal, Matrix Partners mentioned two other disputes that merit consideration (1) Due Diligence, and (2) portfolio companies’ contractual duty to abide by their obligations in shareholder’s agreement.
Mr. Mohammed Shameer, Disputes Partner, Trilegal commenting on India’s position on the arbitrability of shareholder disputes, referred to the leading authorities pronounced by the Supreme Court on the subject- Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1; Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 and A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386, to highlight that rights in rem were non-arbitrable. Thus, shareholders’ right being rights in rem were non-arbitrable. However, he added that the nature of disputes mentioned by Mr. Arun, relating to oppression and mismanagement under Sections 241 and 242 of the Companies Act, 2013 automatically were out of arbitration fold as they had to be mandatorily tried before the NCLT.
NCLT as a default forum- Mr. Shameer expressed that in the context of a minority shareholder, who would want to stay out of the rigours of arbitration, given the huge costs associated with it, would find taking this dispute before NCLT to be more practical and cost-effective. To assess whether something is arbitrable in another jurisdiction, a pro-arbitration approach must be adopted and only then a greater fold of disputes would come into arbitration.
On preferred forum for dispute resolution, Mr. Prasad, mentioned that it was a matter of perspective as investors would want swift, effective and practical outcomes for their disputes, and hence, NCLT might not be the preferred forum of choice. Countering Mr. Arun’s view, he illustrated that, in Indian forums, the expert adjudicators bring sophistication and awareness of Corporate Law to the table, especially in a scenario where the disputes are non-arbitrable.
Mr. Arun, taking a conservative approach maintained that shareholders’ disputes were constrained within the realm of the contract and an arbitrator is incapable of giving a relief wider than the one provided in the contract. He suggested that NCLT is only the forum capable of advancing relief with larger ramifications. On the question of preferred seat of arbitration, he stated that, Singapore is a preferred destination not because of the institution or the rules, or the procedural aspects, but because of the ‘professionalism’ that arbitrators bring to the table while adjudicating a dispute.
Mirroring Mr. Prasad’s view, Mr. Shameer opined that, the prime consideration from an investor’s point of view is ‘preservation of value’. On ‘preferred seat of arbitration’, he agreed with Mr. Prasad’s observations. Taking the discussion forward, he added that for arbitrations globally- Singapore is the trend and has preferable tendency. For shareholder disputes, he mentioned that there are not many alternatives available to SIAC as the seat of arbitration, however, Indian arbitral institutions have now started stepping into the fore. Delving on to the practical reality, as to why Singapore continues to be the preferred jurisdiction for arbitration of such disputes, he pointed that there is an application of uniform yardsticks when it comes to the question of arbitrability both at the pre-award states and at the post-award stage. However, the Indian scenario with Vidya Drolia (supra) in play, different yardsticks have to be dealt with while answering the question of arbitrability at the pre award and at the post-award stage.
Second session on ‘AI and ODR: Is the future here?’
The session commenced with opening remarks from Mr. Anind Thomas, Partner, AZB & Partners, who was moderator for this session.
Ms. Deepika Kinhal, CEO, Centre for Online Resolution of Disputes (CORD) echoing Mr. Anind’s point on the lack of a proper definition of ODR, stated that “ODR can be anything which is facilitated through the integration of technology at any stage in the lifecycle of dispute resolution, and at the other end of the spectrum is where, end-to-end all stages of a life cycle of a case are managed only through technology.” She elucidated that CORD provides an aggregate of all the technology tools which facilitates virtual hearing facilities, scheduling facilities using some level of documentation and some level of automation as well. Regarding AI, she posited that it must be kept in mind as to who the ultimate beneficiary will be. She suggested that hurdles of language, diversity, lack of digital literacy, access to digital tools must be kept in mind, while overlooking the journey of AI in India. Working in tandem with the technology arm — TERES, flagship offering of legal transcription based on engines and speech recognition has been possible.
Discussing SEBI’s ODR for the securities market, she mentioned that around 7000-odd disputes have been resolved through ODR, which accounts to roughly 200 crores. In this regard, she referred to SEBI’s Master Circular, chalking out some day-to-day processes which have ensured that all the ODR platforms offering their services to SEBI have their say in dispute resolutions and they are held equally accountable for ensuring a transparent and secure way of resolving these disputes.
Mr. Paul T. Thottan, Product Manager, SAMA also put across the point that, ODR leverages technology to empower people to resolve errors and disputes on their own. He explained that people/ clients are supported in filing their case easily and given access to a subject matter expert who can advance a decision for them, whether today or tomorrow. He suggested that ODR is broader than just being an alternative dispute resolution mechanism.
Moving onto the discussion surrounding use of AI, he observed that people have common misconceptions for AI to be a stone-cold, non-empathetic chatbot, which may not be able to handle the nuances that are required in mediation, as mediation is inherently reliant on emotional understanding an high on EQ. Taking a different approach from popular perception, he praised AI and vouched that there are some chatbots doing tasks like therapy and counselling.
Mr. Subbaiah KG, Head of Products, CADRE stated that ‘universe of ODR is huge’. He illustrated that, CADRE- a tech intermediary provides a platform to resolve disputes faster with effective cost. He viewed that from tool perspective or from a platform perspective, AI cannot stand by itself, and it needs to be plugged into the system and the platform.
Mr. Vasu Aggarwal, Lucio shared a conversation he once had with a law firm partner where he was told that in a dispute only 40% was the application of legal mind, while the rest 60% was the extraction of data, downloading documents, sorting, and arranging them in a certain order. Discussing this complexity and problem, he suggested that these tasks do not require the application of legal education, and this is what they automate at Lucio. He explained that they pick such problems and solve them with help of AI.
Session 3: Technology — The Future of Disputes or Disputes of the Future?
This session commenced with the moderator of the session- Rahul Matthan, Partner, Trilegal welcoming the panelists, encouraging them to share their valuable insights. setting the stage for a high-powered discussion that promised to be both informative and thought-provoking for all attendees.
This Session featured a distinguished lineup of speakers, including Dhyan Chinnappa, Senior Advocate at the High Court of Karnataka; Mohit Abraham, Chief Legal Officer at Peak XV Partners; Rupa Lakha, Partner at Osborne Clarke LLP; and Varghese Thomas, Partner at JSA Advocates & Solicitors. Each speaker brought their unique expertise and insights to the discussion, enriching the conversation on the evolving landscape of mediation and arbitration.
Mr. Matthan posed a thought-provoking question to Ms. Rupa Lakha, Partner at Osborne Clarke LLP, regarding the evolving nature of disputes in commercial transactions. He highlighted that while disputes often stem from basic contract issues, today’s contracts have become increasingly complex. For instance, they may involve machine components or transactions facilitated by e-commerce platforms, blockchain technology, or multiple parties communicating through APIs. This complexity raises important questions about liability.
Furthermore, he noted that even in traditional sectors like construction—where Ms. Rupa specializes—technology’s pervasive influence is reshaping dispute dynamics.
Ms. Rupa, while sharing her insights on future disputes in general commercial transactions, particularly within the construction sector, informed that in construction disputes and construction projects, lawyers spend a lot of time going through lots of documents. So, this is one element where the use of technology can be helpful. She also shared a live example from her current work, noting, “I am involved in a case concerning major defects in a tunnel, which has been ongoing for seven years. This situation underscores the complexities and challenges we face in the construction industry today.”
Continuing the discussion, Mr. Matthan asked Ms. Rupa that, “How quickly are we moving toward this future? However, this isn’t the reality that judges or litigants are accustomed to. So, how rapidly are we making this transition? Is this progress confined to a specific area of the construction sector, or is it something happening more broadly?”
“We’re moving quickly in this regard,” Rupa Lakha remarked.
She elaborated, stating, “The clients we’re working with are highly sophisticated, and the technology we’re utilizing is driven by the contractors themselves. We’re leveraging existing resources as they refine their products to spearhead these cutting-edge projects.”
She added that the goal is to harness these advancements and bring them into the legal space, effectively bridging our legal work with the efficiencies of our clients.
While previous discussions focused on improving law firms to enhance efficiency, she emphasised collaboration with clients to leverage their innovations positively in cases.
“This integration is actively happening. The processes in engineering and related fields are advancing rapidly, and we’re continually finding ways to apply those innovations to our legal work.”, she mentioned.
Mr. Matthan turned to Mr. Dhyan Chinnappa, Senior Advocate at the Karnataka High Court and said “how quickly are we moving in this regard? Are the clients you’re working with becoming more sophisticated in their use of technology? Is the advancement in technology primarily driven by the contractors themselves? How are you leveraging these innovations in your legal work? Is this integration actively happening, and how do you see the rapid advancements in engineering processes impacting your legal practice?”
Before delving into the specifics, Mr. Chinnappa shared a quick story, and highlighted that we might still be lagging a bit in adopting technology.
“When we discuss evidence, it essentially boils down to two parts: admissibility and proof. The rules of evidence primarily address admissibility—essentially, how we admit a particular piece of evidence into the record. In India, the treatment of electronic records falls under Section 65(B) of the Evidence Act, 1872 and Section 63 of the new Act. However, these rules focus more on how the evidence can be presented in court, rather than on how to prove it.”, Mr. Chinnappa explained.
He added that “to prove a fact, we require an expert to provide testimony. So, even if we can admit this evidence because it exists, the individual who created it must come forward to speak about it. As it stands in current jurisprudence, unless both parties agree on the admissibility of that technology or material, it’s essential to have an expert provide testimony to validate it. That’s where the distinction lies—between simply admitting evidence and proving its relevance and accuracy”.
Adding to this, Mr. Varghese Thomas, Partner at JSA Advocates & Solicitors, said that “Dhyan rightly pointed out that Section 65(B) has been around for 20 years, and Section 63 is essentially a derivative of it. While Section 65(B) serves purposes like certification and documentation, it becomes insufficient when addressing disputes in the metaverse involving digital assets”.
He further added that “in such scenarios, one cannot rely on Section 65(B); we need a separate document of title for those assets. This could be blockchain or another evolving form of documentation”.
Agreeing with Mr. Chinnappa, he said “the current regime of Section 65(B) has very limited applicability, and moving forward, we will need an altogether new framework to adequately address these emerging challenges”.
Mr. Matthan posed a question to Mr. Mohit Abraham, Chief Legal Officer at Peak XV Partners that “How does the practice of law work in this context? Do we need to rethink some of the existing laws? Given these challenges with network effects, are we entering a phase where we need to fundamentally reconsider the laws that have governed us for centuries? What are your thoughts on the evolving role of lawyers in this landscape?”
Mr. Abraham responded by emphasizing the complexities surrounding the concept of a relevant market in the metaverse and the broader global network.
He suggested that we should consider a framework similar to the World Trade Organization, which was effective in regulating trade. Given the scale and complexity of the issues at hand, it’s imperative to think at a convention level, considering the many conventions we’ve had and their various offshoots. A global paradigm is necessary; one cannot leave this to individual nations to legislate effectively in such a multifaceted and evolving landscape.
Rahul Matthan, highlighting the transformative impact of technology on society, said that it’s crucial to acknowledge that AI will inevitably alter our roles and the nature of our work. He invited the panel to share their thoughts on this impending change.
In response to the discussion on AI in the legal field, Mr. Chinnappa firmly expressed his stance against AI judges, emphasizing the importance of the human element in judicial decision-making. He acknowledged the advancements already being made, such as the Supreme Court’s AI Saransh, which utilizes AI-enabled software to help present large volumes of information to judges. Additionally, he mentioned the initiative in Kerala to create open networked courts, allowing individuals to log in, request adjournments, and streamline court procedures, although it remains in the pilot stage.
He also highlighted that while countries like Estonia and China are exploring AI judges and internet courts, he cautioned against fully relying on AI for decision-making. He argued that while AI can assist in organizing evidence and offering insights, it cannot replace the nuanced understanding and human judgment that judges bring to cases.
Session 4: Bengaluru’s status as a premier destination for dispute resolution.
The discussion covered current trends in arbitration and mediation, challenges faced by practitioners, and strategies for promoting Bengaluru as a hub for resolving legal disputes efficiently and effectively. The session aimed to foster dialogue among legal professionals, policymakers, and stakeholders to collectively strengthen Bengaluru’s reputation as a leading destination for dispute resolution in India and beyond.
A distinguished panel of legal experts came together to explore strategies for enhancing Bengaluru’s reputation as a premier hub for dispute resolution. Moderated by KG Raghavan, Senior Advocate, Karnataka High Court, the session featured prominent speakers including Harish Narasappa, Senior Advocate, Karnataka High Court; Karan Joseph, Partner at Shardul Amarchand Mangaldas; Nishanth Kadur, Leader at Nishith Desai Associates; Poornima Hatti, Partner at SAMVAD Partners; and Shreyas Jayasimha, Advocate, Arbitrator, and Mediator at Aarna Law. Together, they shared their valuable insights and practical experiences, fostering a rich dialogue on the future of legal practices and dispute resolution in the vibrant city of Bengaluru.
Starting the discussion, Mr. KG Raghavan, Senior Advocate, Karnataka High Court, said that “this subject holds a dual significance. First, we must pragmatically assess the current advantages Bengaluru offers in this realm, exploring how it stands as a viable destination for arbitration and other dispute resolution mechanisms. Second, and perhaps equally important, is our emotional connection to this city”.
He invited Mr. Harish Narasappa, Senior Advocate, Karnataka High Court to share his thoughts on how we can collectively make Bengaluru the desired destination for dispute resolution.
Harish Narasappa emphasized the importance of retaining the work generated in Bengaluru before positioning the city as a destination for arbitration. He pointed out that while numerous contracts are signed in Bengaluru across various sectors—such as technology, venture capital, and private equity—the city often isn’t the first choice for dispute resolution, even among local businesses.
To address this, Harish suggested a focus on why contracts drafted in Bengaluru do not lead to disputes being resolved there. He highlighted a significant factor: the lack of original jurisdiction in the High Court. Currently, disputes, including Section 34 challenges, often default to the City Civil Court or its commercial division rather than the High Court. This stands in contrast to cities like Delhi, Mumbai, and Chennai, which present a more favorable legal landscape for dispute resolution.
Mr. Harish advocated for legislative changes that would amend the original jurisdiction of the High Court, allowing certain matters to be directly addressed there based on pecuniary thresholds. By enhancing the legal framework, Bengaluru could better retain disputes within the city, paving the way for it to evolve into a preferred destination for arbitration and dispute resolution.
KG Raghavan posed a question to Ms. Poornima Hatti, Partner at SAMVAD Partners, inquiring about her thoughts on Bengaluru as a destination for dispute resolution, particularly regarding the availability of soft skills. He asked her to elaborate on how these skills contribute to the city’s reputation and effectiveness in handling disputes.
Poornima Hatti shared her insights on Bengaluru’s potential as a destination for dispute resolution, emphasizing the significance of the talent pool and soft skills in the region. She acknowledged that the city attracts many professionals eager to engage in international arbitration, yet they often face challenges navigating local courts.
She highlighted the need for capacity building, particularly within the commercial and city civil courts, to enhance their understanding of arbitration and the judicial support it entails. Poornima noted that recent developments have improved the efficiency of these courts, indicating a growing recognition of Bengaluru as a tech hub and its investment potential.
Furthermore, she pointed out the importance of cultivating a diverse pool of arbitrators. Ms. Poornima concluded by emphasizing the importance of ongoing conversations in this space to strengthen Bengaluru’s reputation in arbitration, asserting that the necessary practitioners are already present in the city.
Mr. Shreyas Jayasimha, Advocate, Arbitrator, and Mediator at Aarna Law addressed the question regarding how Bengaluru compares to established arbitration hubs like Singapore and London.
Mr. Jayasimha emphasized that the infrastructure needed for global competitiveness in arbitration is fundamentally rooted in internal determination. He pointed out that while public and private organizations can certainly contribute to building the necessary external support, it is the mindset and ambition of local practitioners that truly matter.
He articulated that advocates in Bengaluru must embrace the expectation of being globally competitive, equipping themselves with the same tools and skills that international practitioners possess in major hubs like London, New York, or Singapore. By fostering this mindset, Bengaluru’s legal community can drive significant change, positioning itself as a formidable player in the global arbitration landscape. Ultimately, the transformation begins with a commitment to excellence and the belief that Bengaluru can compete on the world stage.
Turning the discussion to Mr. Karan Joseph, Partner at Shardul Amarchand Mangaldas, Mr. Raghavan asked him that what are the key ailments that prevent Bengaluru from becoming a favored destination for dispute resolution?
Karan highlighted that one of Bengaluru’s primary challenges is its status as a relatively young city in the context of dispute resolution. Unlike the established centres like Delhi and Mumbai, Bengaluru is still in the early stages of developing a robust arbitration ecosystem. This youthful status may discourage some parties from choosing Bengaluru for arbitration compared to the more traditional locations.
Karan also pointed out that many who attend conferences in Delhi and Mumbai might not be familiar with Indian-seated arbitrations, suggesting that the task ahead is to position Bengaluru as a viable option for such disputes. To achieve this, he emphasized the importance of creating a conducive legal environment, which includes having effective commercial courts. However, he noted that the existing structure can be somewhat complex, as disputes may have to navigate through the Commercial Court, then the High Court, and finally the Supreme Court, rather than directly accessing the High Court as might be possible in other cities.
Mr. Nishant Kadur, Leader, Nishith Desai Associates taking the discussion ahead, discussed that Bengaluru is the home for founding companies entering into deals running into millions, yet, for drafting the arbitration clause, Bengaluru is often not even considered. Reflecting on the reasons for the same, he highlighted that the mindset of the lower Court Judges needed to change for ensuring that there is minimal intervention of courts in the arbitral process.
Moving onto appointment of arbitrators, Mr. Kadur pointed that in ad-hoc arbitration, the Courts often rely on the list prepared by arbitral institutions in Bengaluru, the choice and discretion being limited in such cases.
Mr. KG Raghavan posed a very pensive question to Mr. Narasappa that “Even though contracts are often drafted here in Bengaluru, the arbitration clauses frequently do not prefer this city. In your experience, what do you think is the reason for this? What factors are deterring lawyers from promoting or advocating for Bengaluru as a preferred venue for arbitration?”
Sharing from his experience, Mr. Narasappa said that there is a lot of history in Bengaluru of construction related arbitration, real estate arbitration, even before the liberalization era, but the initial set of businesses that came post 1991 in India, there was a lot of focus on customers outside India, led by the IT industry, primarily, and then other knowledge industries. He stressed that the lawyers that were drafting arbitration clauses were primarily corporate lawyers, and their awareness of the dispute resolution ecosystem was not as great as it can be and as law firms have become bigger, the interaction between the corporate department and Dispute Resolution department doesn’t happen as often as it should.
Continuing the discussion, KG Raghavan asked Ms. Poornima whether the shift in large law firms establishing offices in Bangalore, staffed with local talent, will enhance the capability of Bangalore-based businesses to consider the city as a venue for arbitration. He pointed out that previously, despite the presence of significant business houses, contracts were often drafted with an inclination towards Mumbai or Delhi. Given this change, does she believe that the initial drawbacks, where contracts were drafted for Bangalore businesses but favoured arbitration outside the city, are diminishing?
In response, Poornima emphasized that with a conscious effort, change is indeed possible for Bangalore’s arbitration landscape. She recounted a recent instance where, for the first time, a contract was drafted with Bangalore as the arbitration seat, despite the businesses not being based there. This unexpected choice, though lacking a clear explanation, was seen as a positive development.
She noted the maturation of the Bangalore legal market, thanks to both external law firms and local talent, which is fostering this shift. Ms. Poornima advocated for actively including Bangalore in arbitration clauses and highlighted that there shouldn’t be any hesitation to reference established institutions like SIAC, MCIA, or ICC when drafting contracts.
Moreover, she questioned the tendency to compare Bangalore only to Delhi and Mumbai, pointing out that cities like Chennai and Kolkata also have commercial significance and original jurisdiction. Acknowledging the progress made, she encouraged ambition, suggesting that Bangalore could become a competitive arbitration hub, potentially attracting significant investment that currently flows to Singapore.
She concluded by expressing hope that the discussion could lead to actionable steps towards enhancing Bangalore’s standing as a destination for dispute resolution.
Mr. KG Raghavan requested Shreyas to enlighten on the financial services market, which has become an increasingly important area for businesses.
Shreyas spotlighted two key aspects regarding the financial services market and the increasing disputes between investment companies and private equity firms. First, he referred to a recent report from July 2024 by the expert committee for drafting institutional arbitration rules for a new arbitration center, suggesting that Bangalore should push for recognition as a financial services area under the International Financial Services Centres (IFSC) Act. He emphasized the need for statutory reforms that could streamline dispute resolution processes.
Secondly, he addressed the blurring lines between fintech and traditional financial services, noting how entrepreneurs in Bangalore are aiming to create globally competitive businesses. This ambition, he argued, links the realms of financial services and private equity, with disputes likely to migrate to established arbitration seats like Singapore and London unless Bangalore steps up its game. He called for creativity and proactive engagement from local stakeholders to harness the potential for Bangalore to become a preferred destination for these disputes.
Posing the final question to Mr. Jayasimha, Mr. Raghavan said that “Do you believe that Bangalore’s lack of key institutions, such as the trade mark registry, the patent office, and the decision-making bodies of SEBI and RBI, affects its attractiveness as a destination for dispute resolution?”
In response to that, Mr. Jayasimha stated that expecting Delhi and Mumbai to step aside for Bangalore is indeed unrealistic. Bangalore must carve out its own identity and strength, independent of any governmental support. The real power lies in our people and the vibrant energy they bring to the city. Being recognized as the top city for foreigners to live in India for over two decades is a testament to our appeal.
“Instead of seeking new institutions, we should focus on building a robust ecosystem—one that nurtures ideas and fosters ambition. Just as Pramod has successfully brought the Permanent Court of Arbitration to Delhi, we can create similar opportunities in Bangalore. We already have the ICJ India chapter, which shows our potential”, Mr. Jayasimha proposed
He further stressed that the emphasis should be on developing the necessary infrastructure and cultivating a culture that drives these initiatives forward. Relying on domestic bodies to establish a presence here often leads us into political challenges, which can hinder our progress. We must instead harness our strengths and take proactive steps to establish Bangalore as a key player in the dispute resolution landscape.
Mr. KG Raghavan concluded the session by stating that this discussion has opened a wide range of issues that positively impact Bangalore’s potential as a premier destination for dispute resolution.
Justice S.R. Krishna Kumar, Judge, Karnataka High Court delivered the keynote address. In his keynote address, he expressed his gratitude to the organisers, speakers and participants for making the opening day a resounding success. He acknowledged the significant contributions of MCIA in advancing the field of ADR in India and globally. He remarked that, since its inception, MCIA has been at the forefront of promoting best practices, fostering innovation, and upholding higher standards of ethics and transparency in ADR proceedings. Reflecting on ethics and transparency in ADR, a subject that is of paramount importance to the integrity and effectiveness of ADR, he opined that they strike at the very heart of justice delivery, public trust and legitimacy of the ADR mechanisms. Justice Krishna stated- “maintaining high ethical standards and ensuring transparency is essential to upholding the credibility of the ADR processes.” He explained that ADR offers private and flexible dispute resolution, which makes transparency, as a principle even more vital to prevent misuse and to ensure fairness to parties engaged in ADR. He underscored that these principles are important in ADR as it has unique ethical challenge due to its inherent characteristics.
He further emphasized that neutrality could enhance the ADR process by incorporating a broader range of perspectives and experiences, thereby enriching diversity and ensuring that ADR reflects on the various backgrounds of the parties involved. This contributes to perceptions of fairness and representation, prioritizing the nomination of women as court-appointed arbitrators, which is a crucial step toward addressing the longstanding criticism of male dominance in arbitration. He also reflected on the importance of institutional transparency and illustrated that many ADR institutions like the MCIA have made significant strides in enhancing transparency by providing clear information about their rules, fee structures, and appointment processes. These efforts help parties make informed decisions and enhance confidence in the institutional services. He also advised that institutions should establish feedback mechanisms allowing the parties to share their experiences and suggest improvements. He explained that ADR institutions play a vital role in addressing ethical and transparency concerns.
Justice Krishna also discussed the vitality of training and accreditation for promoting ethical practices. He suggested that regular training programs on ethics for arbitrators, mediators and counsels should be undertaken to enhance awareness and adherence to ethical standards. While mirroring the role of technology, as discussed in previous sessions, he said that it is crucial in modern ADR practices to use secure platforms ensuring confidentiality and data protection. He proposed that guidelines can be developed for the ethical use of artificial intelligence in ADR in order to maintain and boost trust in technology-assisted processes.
Mr. Pramod Nayar, Senior Advocate, Karnataka High Court in his concluding remarks, opined that it’s important to critically evaluate and analyse judicial decisions. Referring to “The Guide to the interpretation of the New York Convention,” he suggested that such a guidebook for judges who interpret arbitration awards, can be brought out. He also underscored the need for training on drafting arbitration clause and arbitral award, running an arbitration institution efficiently, with minimal cost and in the fastest possible way. He also appreciated the initiative of appointing young arbitrators, but simultaneously questioned that how many arbitrators are trained in writing a good arbitration award. To enhance these skills and ability he proposed the initiative of mentorship scheme where a senior arbitration practitioner trains these mentees and share with them precedents of good procedural orders after redacting all confidential information providing a templates of good arbitration awards.
*Disclaimer: The transcript has been provided by Teres.