The Mumbai Centre for International Arbitration (MCIA) proudly announces India Alternative Disputes Resolution Week 2024 (IAW 2024) from 23rd September to 28th September 2024. The transformative initiative aims to bring together best practitioners to discuss Alternative Dispute Resolution (ADR) across three key jurisdictions: Bengaluru, Mumbai, and Delhi.
MCIA is dedicated to promoting and facilitating arbitration and alternative dispute resolution in India and abroad. Through its initiatives, MCIA aims to position India as a preferred seat for arbitration.
Kicking off in Bengaluru on September 23, 2024, IAW 2024 featured a series of intense discussions and collaborative sessions among legal professionals, scholars, and industry leaders. The event aims to explore best practices and emerging trends in arbitration, fostering an environment of knowledge sharing and innovation.
The week began with a robust agenda that set the tone for high-level discussions on various contemporary issues in arbitration. Participants engaged in insightful dialogues surrounding shareholder disputes, the future of Artificial Intelligence (AI) and Online Dispute Resolution (ODR), and the evolving role of technology in ADR processes.
As the initiative moves to Mumbai, it witnessed an expert panel discussion that delved deeper into the complexities of arbitration and ADR. Distinguished speakers shared their perspectives on the pressing challenges and opportunities within the sector.
The speakers in Session 1, titled “Beyond Boundaries: Rethinking Arbitration and Mediation as Complementary Processes,” explored innovative approaches to integrating arbitration and mediation to enhance dispute resolution strategies.
The session was expertly moderated by Mr. Raj Panchmatia, Partner at Khaitan & Co.
The session featured distinguished speakers, including Gopal Menghani, General Counsel of Mahindra Holidays and Resorts India Limited; Kushal Gandhi, Partner at CMS Cameron McKenna Nabarro Olswang LLP; Chakrapani Misra, Partner at Khaitan & Co; and Jyoti Kapadia Maheshwari, Group General Counsel and Vice President at Hitachi Payment Services Pvt Limited.
The moderator introduced the panelists, highlighting their expertise and contributions to the field of arbitration and mediation.
Mr. Raj Panchmatia started the session by emphasising that, “Many now believe disputes can often be resolved before resorting to full-fledged litigation. In today’s environment, where corporate commercial transactions and cross-border dealings occur daily, discovering alternative methods of dispute resolution is crucial”.
He posed a thought-provoking question to Mr. Kushal Gandhi, Partner at CMS Cameron McKenna Nabarro Olswang LLP, asking, “Should we really be positioning arbitration and mediation as distinct and unique processes in opposition to one another? Is it appropriate to frame the discussion as arbitration versus mediation? Instead, shouldn’t we explore how arbitration and mediation can work together, allowing us to benefit from the strengths of both approaches?”
Mr. Kushal Gandhi expressed his view that mediation and arbitration should not be seen as mutually exclusive.
“In fact, I believe mediation is not a process in itself; rather, it is a tool that can be applied throughout the entire spectrum of dispute resolution. Arbitration and litigation are distinct processes for resolving disputes, while mediation can complement both,” he explained.
He continued, “Mediation is a powerful problem-solving tool. Unlike arbitration, where outcomes are dictated by the tribunal or judge, mediation offers the flexibility to reach a commercial solution. Each mediator employs different techniques, but the core focus is on solving problems collaboratively. Therefore, it is misguided to think that engaging in mediation precludes arbitration, or vice versa”.
Mr. Raj Panchmatia posed a compelling question to Mr. Gopal Menghani, General Counsel of Mahindra Holidays and Resorts India Limited asking, “As an in-house counsel, would you prefer arbitration, mediation, or a hybrid structure? What factors influence your choice among these options? When commercial transactions come your way, do you often recommend these methods?”
Noting that this is a common conundrum faced by General Counsel when their company encounters disputes. Mr. Gopal Menghani responded, emphasizing that the primary goal of any General Counsel is to find a resolution. He explained that before even considering mediation, significant effort goes into communicating with the other party to identify common issues that can be resolved.
He highlighted that if both parties maintain open communication, they are more likely to pursue mediation followed by arbitration. Mediation can clarify many issues, allowing only the contentious points to be taken to arbitration. However, he noted that sometimes parties may adopt a rigid stance and prematurely invoke arbitration. In such cases, even during arbitration, they may realize that certain issues are not as significant as initially thought and opt to bring in a mediator.
Mr. Menghani also shared a personal experience from a highly contested arbitration with a contractor.
He concluded that the effectiveness of any approach depends on the specific scenario. What works in one situation may not apply to another. Agreeing with Mr. Kushal and Mr. Raj, he reiterated that every effort should be made to resolve disputes through good communication and, when necessary, the appointment of a skilled mediator to help navigate the complexities of the issues at hand.
Mr. Panchmatia questioned Ms. Jyoti Kapadia Maheshwari, Group General Counsel and Vice President at Hitachi Payment Services Pvt Ltd., about the types of cases she would consider suitable for Arb-Med-Arb or Med-Arb-Med processes. He asked, “What kinds of matters do you believe are particularly well-suited for these approaches?”
Ms. Maheshwari responded, “the types of cases suitable for Med-Arb are those where both parties are comfortable and believe that their disputes can be resolved. However, it’s crucial that this process isn’t misused by one party to prolong negotiations—something that has become increasingly common, especially when it comes to delaying payments. Mediation should only be pursued when both parties genuinely want to reach a consensus”.
She elaborated on Arb-Med, noting that this approach can be advantageous when arbitration reaches a stage where the parties recognize they can resolve certain issues through mediation. However, she expressed concern that introducing mediation after an award could undermine the arbitration process.
“The arbitrator dedicates considerable time and effort to deliver a binding decision, and incorporating mediation at this stage may compromise the integrity of that process,” she explained.
Mr. Raj asked Mr. Chakrapani Misra, Partner at Khaitan & Co., that “Arbitration clauses are a common feature in most commercial transactions, while mediation clauses are less prevalent. How do you assess the strategic advantages of proposing mediation over arbitration to your clients and their counterparties? Additionally, in what situations would you recommend having both mediation and arbitration as part of the dispute resolution strategy for your clients?”
To illustrate his point, Mr. Misra shared an example. He said “we just concluded an arbitration that included a mediation clause. This was a heavily contested matter involving significant stakes. Initially, when the tribunal was constituted, it inquired whether the parties would consider mediation, to which both sides responded with a firm refusal. As the proceedings progressed and we reached the conference phase for scheduling hearings, the presiding arbitrator casually revisited the idea of mediation. This time, the response was markedly different; both parties expressed a willingness to reconsider. Two months later, we engaged in mediation with a different mediator, which ultimately led to a successful settlement. The key factor in this development was that once the pleadings were complete, both sides gained a clearer understanding of their positions. They realized that proving their claims would not be as straightforward as they initially believed. This newfound perspective opened the door for mediation”.
Answering the question, he accentuated that the decision to propose mediation over arbitration largely depends on the posturing of the clients involved. Mediation can serve as an effective tool to clarify issues and set a constructive tone if introduced before arbitration. However, there are instances where it may be essential to proceed with arbitration first. Initially, neither party is inclined to consider mediation, but when circumstances change, it allows for a more open dialogue later.
He mentioned that in his extensive experience, mediation is most effective when there exists an ongoing relationship between the parties involved. In such scenarios, where the preservation of business ties is crucial, mediation can expedite the resolution process. Thus, he stressed that a Med-Arb-Med structure proves particularly advantageous in these contexts. Conversely, an Arb-Med-Arb approach may be more appropriate when the issues have been clearly defined, enabling parties to reassess their strategies and adopt a more conciliatory stance.
Continuing the discussion, Mr. Panchmatia inquired of Mr. Gandhi, “At what point would you recommend to your clients that it’s time to pursue mediation, and what strategies do you suggest in relation to that decision?”
Kushal responded that when parties enter the dispute phase, emotions inevitably run high. This is true even when representing institutions or corporations, as the individuals responsible for specific business areas often feel a strong emotional attachment. Managing these emotions is essential; if you suggest settling the matter, clients may perceive you as not prepared to fight for them. This perception can lead them to question your suitability for the case, not because of a lack of skills, but because they feel you are not aligned with their emotional journey.
Mr. Chakrapani asserted that there is no such thing as a failed mediation. Even if a case does not settle, the process can still narrow the issues in dispute and sharpen focus for future discussions. Each phase of a case presents an opportunity to reassess the timing and appropriateness of mediation.
Mr. Panchmatia asked the next question to Ms. Jyoti, that has she seen parties using guerrilla tactics in mediation such as using it to waste time, delay the mediation process?
Ms. Maheshwari first discussed the meaning of guerilla tactics.
“It’s more of delaying the process. When the parties are on deliberation, they delay in providing certain documentation. They delay in coming onto the table to discuss the kind of settlement, they would want to. They would go back to their Boards to discuss this. So, there are a couple of ways to delay the entire process and then fail mediation”, She explained.
Mr. Gopal highlighted a significant concern regarding how to tackle certain scenarios in mediation. He expressed that there might be a need for legislative recognition of the efforts made by mediators. Currently, mediation proceedings often cannot be introduced in arbitration proceedings, which creates a gap in the process.
Mr. Panchmatia shared that guerilla tactics in mediation and arbitration are quite common. He recalled a troubling experience where, as an arbitrator, he received a letter from one party threatening to file a criminal complaint if the arbitration proceeded. This type of intimidation is not rare and presents significant challenges in the arbitration process.
In the closing remarks, Mr. Panchmatia thanked the panel for sharing such exciting views, highlighting the valuable insights gained from their discussions today.
Session 2 commenced with the theme “What Experts Think of Lawyers (and Vice-Versa),” offering an engaging introduction to key topics. This session explored the perceptions, insights, and experiences that experts from various fields hold about lawyers, as well as how lawyers perceive experts in their respective domains. By fostering open dialogue, the session aimed to bridge understanding and enhance collaboration between the two groups.
The session was moderated by Nishant Nath Singh from Stewarts Law in London. Among the esteemed speakers were Amit Garg from the Secretariat in Singapore, Nitesh Jain from Trilegal in India, Jed Savager from Pinsent Masons in Dubai, Kelvin Poon SC from Rajah & Tann in Singapore, and Sanjeev Gemawat, Managing Director and Group General Counsel at Essar Group.
Mr. Nishant warmly invited Ms. Rhia Marshall, a distinguished partner at Jerome Merchant & Partners, to share her insights with a few introductory remarks.
Rhia articulated that the use of expert testimony in arbitration in India is still in its nascent stage. Often, when we, as lawyers, propose the appointment of independent experts, clients question its necessity, asking, “Is it really required?” However, she affirmed that the practice of appointing independent experts is certainly gaining momentum. We are increasingly recognizing the significant benefits that experts bring to arbitration, proving useful not only for clients and lawyers, but also for arbitrators.
Nishant posed a question to the panel: “At what stage of the arbitration proceedings do you think it is most ideal to appoint or engage an external expert witness?”
Mr. Nitesh Jain, Disputes Partner at Trilegal, started the discussion by emphasizing the importance of early engagement with experts. He stated that, when legal notices start arriving, it becomes evident what claims are being made against you. It’s crucial to begin interviewing experts and consider bringing one on board at that point, or at least once you receive notice of arbitration. Waiting until all pleadings are finalized to think about involving an expert is not advisable; doing so could lead to a mismatch between the expert’s opinions and the cases you’ve already presented. Therefore, it’s best to engage an expert at the notice stage, if not earlier.
Mr. Amit Garg from the Secretariat in Singapore underscored that the earlier you engage an expert, the better. He noted that there have been instances where counsel only reaches out when rebuttal expert reports are due, often influenced by observing others engaging experts.
He pointed out several reasons for this early engagement. First, experts can provide invaluable guidance not only to clients but also to the instructing solicitors on key areas to focus on. By engaging an expert at that early stage, they could direct their focus effectively, which turned out to be extremely beneficial. In summary, the message is clear: the earlier, the better.
Agreeing with all of that, Mr. Jed Savager, based on his experience, shared that many parties in the Middle East often perceive the notice of arbitration as a catalyst for initiating settlement discussions. They frequently submit requests for arbitration with the hope that this action will alter the negotiation landscape. However, he cautioned that it can sometimes produce the opposite effect, indicating a lack of thorough understanding of their disputes.
He emphasised that involving experts prior to issuing a notice of arbitration is essential, especially given the potential for jurisdictional challenges.
Mr. Kelvin Poon also concurred that it is important to engage suitable experts early in the process. However, he differentiated between consulting experts and testifying experts. He recommended that it is prudent to involve a consulting expert as soon as possible to guide your case.
Furthermore, he asserted that whether to engage an expert early also depends on the specific discipline involved. In the context of construction, it often makes sense to involve an expert early, especially when assessing damages. For claimants, having an expert involved from the outset provides clarity on potential outcomes if the claim is successful. In contrast, for other disciplines, it may be beneficial to allow the case to develop further before engaging an expert. Ultimately, the utility of expert evidence to the tribunal hinges on how the issues are framed, making this a balancing exercise. In general, he advocated for early engagement, but with caution.
Mr. Sanjeev Gemawat, Managing Director & Group General Counsel at Essar Group signified that handling litigation is a complex task, fundamentally rooted in strategy. As General Counsel, he viewed his role as one of building a collaborative team that includes both internal and external experts, such as quantum specialists. He believed that from the very outset—ideally even before formal engagement with these experts—it is important to discuss and refine the approach to the case. In addressing the question of timing, he stated that these discussions should begin informally prior to filing a claim, allowing for an evaluation of ideas and direction.
On a question concerning the expectations as an expert from instructing council and or the client, Mr. Amit Garg highlighted that it’s important for clients and counsel to make sure the team that worked on that project is available to provide just factual guidance that might otherwise not be available.
Carrying on with the session, Mr. Nishant posed a question to Mr. Sanjeev Gemawat: “How do independent experts provide substantial value compared to in-house finance teams when advising on delay matters?”
Mr. Sanjeev Gemawat replied that in complex disputes, having an expert as part of your litigation strategy is essential; without one, you risk faltering and potentially losing your case. The need for an expert largely depends on the industry and the nature of the disputes involved. When confronted with complex issues, engaging an expert becomes critical for effective resolution.
The session continued with a lot of energy and enthusiasm, featuring mind-boggling discussions.
Subsequently, the Guest of Honour, Justice Manish Pitale, Judge of the Bombay High Court, delivered a keynote address.
He recalled that arbitration has not failed in India; instead, we have failed arbitration by viewing it merely as a post-court work phenomenon. Nevertheless, he said “we now have a dedicated arbitration bar led by Gourab Banerji, which marks a positive development”
Justice Manish Pitale reinforced that the objective is to ensure that arbitration is recognized as a full-time endeavor rather than an afterthought, where exhausted lawyers come to arbitrators after long days, resulting in rushed proceedings that often get postponed.
Justice Pitale shared that he prefers Med Arb because he feels mediation should be the starting point. He stressed that if a dispute is resolved through mediation, it creates a win-win situation for all parties involved. Even if mediation is only partially successful, it helps clarify the key points of contention, allowing arbitration to focus solely on those issues. This streamlined approach can facilitate quicker and more cost-effective arbitration proceedings.
In conclusion, he stated that ADR Weeks like these will have a significant impact.
Thereupon, Mr. Raj Panchmatia delivered the vote of thanks.
Following that, Session 3, titled “The Big Business of Sport — Why Arbitrate?”, provided an in-depth exploration of the increasing role of arbitration in the sports industry. Ms. Mythily Katsaris, Partner at Fladgate LLP, moderated the session and opened the floor for discussion. Highlighting the efficiency of arbitration in sports, she referenced Vinesh Phogat’s proceedings during the recent 2024 Olympics as a testament to the timely adjudication of sports disputes through arbitration.
Mr. Dinesh Pednekar, Partner, Economic Laws Practice throwing his weight behind arbitration in sports, mentioned that it has become very important to resolve disputes in the sports arena with arbitration. Discussing Vinesh Phogat’s matter- a case in point, he corroborated Ms. Katsaris’s view stating that the decision was rendered within days and acceptance of the same by Ms. Phogat was a testament to the ‘trust’ placed in decisions rendered by Court of Arbitration for Sports (CAS). He said that all Indian athletes do not avail dispute resolution before CAS as there is lack of awareness amongst them and CAS arbitration is not as cost effective for them. He added that Courts are not the best and effective mechanism, as they are already overburdened and lack the expertise to understand the disputes in sports. Moroever, the disputes around doping are outside the jurisdiction of Courts and hence, they are adjudicated before specialized institutions like CAS.
Mr. Mark Buckley, Partner Fladgate LLP, highlighted that there are few sports such as Formula One and Premier League Football, which do not go before CAS.
After an outstanding Session 4, the next session featured a debate on the topic “Whether Courts Need to be Empowered to Modify Arbitral Awards under the Arbitration Act.” Ms. Bindi Dave, Co-Managing Partner at Wadia Ghandy & Co., served as the moderator for the session. The speakers for the session included Zal Andhyarujina, Senior Counsel; Sarita Kamath, General Counsel at TATA Capital; Sharan Jagtiani, Senior Counsel; and Deepak Chauhan, Director and General Counsel at Welspun Group.
After a spirited debate, Session 5 began with an engaging discussion on the topic “Experts as Arbitrators or Arbitrator-Appointed Experts?”
The session was moderated by Janak Dwarkadas, Senior Advocate.
The speakers for the session included Justice (Retd.) R.D. Dhanuka, Former Chief Justice of the High Court of Bombay; Hiroo Advani, Senior Partner at Bharucha & Partners; Montek Mayal, Partner and Practice Head for Asia & the Middle East at Osborne Partners; Kirtan Prasad, Senior Counsel at RPC; and Hannah Fry, Barrister at 39 Essex Chambers.
Mr. Janak initiated the discussion by posing a question to Justice Dhanuka: “When we talk about tribunal-appointed experts, how do you see this as different from the practice of party-appointed experts?”
Justice Dhanuka began by clarifying the distinction between a sitting judge and a retired judge before answering the question. He noted that a sitting judge actively presides over cases and exercises judicial authority, while a retired judge, having completed their term, no longer has that authority but may still contribute to the legal field through advisory roles or alternative dispute resolution. This distinction, he emphasized, is crucial in understanding their respective functions within the judiciary.
Coming back to the question, he stated that parties have the option to appoint an expert to assist them at various stages, including during the drafting of agreements. This is particularly important given the diverse nature of agreements, such as construction contracts, partnership disputes, or property valuations. Expert assistance is also commonly sought when drafting pleadings before arbitration.
Mr. Janak posed the question to Hiroo Advani, asking, “In your opinion, do you think experts should be appointed as arbitrators? What do you see as the advantages or disadvantages of such an approach?”
Hiroo Advani expressed his view that appointing experts as arbitrators can lead to challenges. He noted that an expert might assume they know more than others and may rely heavily on their own opinions rather than considering other perspectives. Additionally, he highlighted a pressing issue in the Supreme Court of India regarding the government’s push for a panel of experts for public sector undertakings (PSUs). The proposal suggests that each PSU should have a panel from which parties must appoint arbitrators, comprised largely of retired government officials. Advani argued that this undermines the parties’ autonomy and could result in biased decisions favoring the government. While he strongly supports the use of experts in arbitration, he is against the idea of appointing them as arbitrators due to these concerns.
Adding to the discussion, Montek Mayal acknowledged that while there are valid concerns regarding appointing experts as arbitrators, there are also compelling reasons to consider their involvement in specific cases. He noted that not every arbitration necessitates an expert arbitrator, but certain matters, like construction disputes or complex valuation issues, can significantly benefit from their expertise.
Mr. Janak inquired of Kirtan Prasad about the types of cases that would warrant the appointment of experts as arbitrators and how parties should approach the selection of these experts, given their freedom to choose.
Kirtan Prasad emphasized that Janak’s observations were spot on, noting that specific sectors, such as stock exchanges, construction, and commodities, could benefit from expert arbitrators. He acknowledged a potential bias in the audience, as lawyers often deal with disputes that have significant legal components, making experts seem less relevant. However, he argued that for highly technical disputes, appointing an expert arbitrator proved valuable. In that instance, the expert’s ability to streamline the process and focus on the essential submissions from each party led to an efficient resolution, highlighting that there is indeed a place for experts in a narrow range of disputes.
Janak posed the question to Hannah Fry, asking her which she believes is more effective in arbitrations: party-appointed experts or tribunal-appointed expert witnesses, and why.
Hannah noted that her role as counsel often involves translating complex information between experts and arbitrators, reflecting the growing importance of expert evidence in arbitration. She highlighted that expert involvement has become the norm, particularly in technical and high-value cases. Currently, she is engaged in commercial and construction arbitration with five different types of experts, illustrating this trend. According to a 2021 BCLP International Arbitration survey, 96% of respondents felt entitled to party-nominated experts, further indicating that this practice is widely accepted. Hannah concurred with Montek, stating that while party-appointed experts are common, tribunal-appointed experts are relatively rare, particularly within the Commonwealth and English legal systems, where parties often feel they have greater control over their case with party-nominated experts.
Justice Somasekhar Sundaresan, Bombay High Court delivered an insightful keynote address, emphasizing the importance of arbitration in today’s legal landscape. He discussed the evolving role of arbitrators and the need for a balanced approach in resolving disputes. Highlighting important questions regarding the credibility and regulation of the arbitration profession. He urged the Arbitration Bar to consider whether they truly command respect and choice from the market, or if they merely fill available roles. Drawing parallels to regulated professions like law and accountancy, he emphasized the necessity for self-regulation among arbitrators.
Justice Sundaresan emphasized the importance of establishing a regulatory framework that instills confidence in parties regarding the effectiveness of arbitration as a dispute resolution forum. He highlighted that this matter should be a central concern for both lawyers and arbitrators. The Arbitration Bar should not function as a “weekend bar,” where practitioners only engage in arbitration during their off-hours from court practice. Instead, a dedicated approach is essential to foster trust and credibility in arbitration as a viable option for resolving disputes.
Justice Sundaresan expressed concern over a trend in which corporations are increasingly moving away from arbitration in certain disputes, particularly when more straightforward legal processes are available. He called for a thorough examination of these trends and the implications for the arbitration landscape, encouraging the profession to develop strategies that reinforce the value of arbitration as an effective dispute resolution mechanism.
Justice Sundaresan concluded with a call for continued collaboration among stakeholders to enhance the integrity and efficiency of the arbitration process.
Mr. Nish Shetty, co-Chair of the MCIA Council, expressed his gratitude to all the participants and speakers for their valuable contributions throughout the event.
