'Lex Mercatoria' by Hasit SethExperts Corner


A.    Introduction


Complex disputes are not easy to define as a class. But they do occur frequently in court litigation or arbitrations. Hallmarks of complex disputes are multiplicity of parties and issues, both legal and factual. Various jurisdictions have built mechanisms to deal with complex disputes through special rules and procedures. This article focuses on litigation and arbitration as methods for resolving complex disputes, though other methods like mediation are also useful. In particular, this article analyses the need for improving Indian legal system’s tools and capacities to resolve complex disputes by adapting global best practices.


B.    Nature of Complex Dispute Resolution


Black’s Law Dictionary, defines complex litigation[1] as, “litigation involving several parties who are separately represented, and usually involving multifarious factual and legal issues”. Right below the definition, the same dictionary quotes from Tidmarsh and Trangsrud’s 2002 book titled, Complex Litigation. The quote partly states, “complex civil litigation has an ‘I know it when I see it’ quality. Nearly everyone agrees that matters like the massive asbestos litigation, the AT&T anti-trust suit, or the remedial phase of a school desegregation case are complex”.

 

Complex litigation is now taught in several US law schools as a formal course[2]. Alternative methods of resolving complex disputes exist, for example, mediation, which may be very effective in a given factual matrix. Many mass tort or class action litigation of a complex nature end in a conciliation expressed as a settlement with payouts to the victims.

 


C.   Difficulties of Resolving Complex Disputes in India


Post-independence, India’s first brush with complex dispute was the Bhopal gas leak disaster (1984) related litigation. The leak of methyl isocyanate (MIC) poisonous gas killed thousands (est. 3,000-5,000) of people and with thousands more disabled. In 1985, Indian Government joined a claim against the American company, Union Carbide, in the United States District Court,  Southern District of New York[3] (US Bhopal Case). The core issue raised in a motion filed by Union Carbide was forum non conveniens. Union Carbide argued that Indian courts were a more appropriate forum rather than US courts for claims by gas leak victims. Indian Government’s position in the case was that US courts were appropriate forum to assert their claims.

 

The underlying strategy of parties in Bhopal gas disaster’s US litigation was simple. Union Carbide wanted Bhopal gas leak claims to be not litigated in US courts before juries as that would result in multi-billion dollar judgments or settlements. The track record of US juries for mass torts was pro victim having granted multi-billion dollar verdicts — one of those could have bankrupted Union Carbide. While, Indian Governments, at least initially, and victims wanted substantial damages for their injuries which could only be possible in US courts’ jury trials.

 

In the US Bhopal case, Prof. Marc Galanter filed an affidavit pointing out severe handicaps of Indian legal system in handling complex personal injury litigation involving mass torts[4]. One problem that his affidavit highlighted was at Para VII.C tilted, “Indian Civil Procedure Contains no Special Provisions or Devices for the Conduct or Management of Complex Cases.”

 

In response, the eminent Indian lawyer, Mr Nani Palkhivala, and others legal experts had filed affidavits asserting the competence of Indian legal system to handle mass tort claims. Mr Palkhivala’s affidavit detailed how Indian Bar and judiciary was capable of handling complex litigation including mass torts[5]. Which opinion turned out to be true after nearly 38 years can be seen from Government’s own data: of the 1,029,517 claims only 574,366 were awarded a mere Rs 3,840 crores in total while 455,151 claims were rejected[6]. And the litigation to demand more compensation still continues[7]. Clearly, India legal system needs tools to manage complex litigations that compensate claimants adequately and within a short time.

 

Ultimately, Union Carbide got away easily with a relatively small payment of US $470 million as settlement to Indian Government, though they have given explanations for the same on a specially created website[8]. The trial(s) where Indian courts could have granted multi-billion dollar equivalent award for the Bhopal mass torts and execution of that judgment or judgments in US never arrived due to the paltry settlement by Union Carbide accepted by the Indian Government.

 

In current times, a new category of complex arbitrations has arisen in India. As there are no specialised constructions courts across India (exceptions exist in a few States as tribunals), construction disputes now are invariably arbitrated rather than being litigated in courts. As India constructs infrastructure like roads, high speed rails, airports, etc. inevitably disputes arise between contractors and the public sector. Construction disputes has become a large category of complex disputes in India in last two decades. But the conduct of construction arbitrations in India can be made much more efficient. The delays in arbitration process involving thousands of documents of any construction project are common. Later in this article, recommendations are made to speed up complex arbitrations in India.

 


D.   Current Dispute Resolution Methods in India


The core statute that defines civil litigation in India is the venerable Civil Procedure Code, 1908 (CPC). All other judicial and quasi-judicial procedures in India are derivatives of the CPC. For a country as vast as India, to have a common country-wide Civil Procedure Code for Federal or State Courts in the CPC is a magnificent achievement. Contrast this with the United States, the only nearest comparable common law jurisdiction in its scope to the Indian legal landscape. The United States of America has a Federal Rules of Civil Procedure for Federal Court litigation and as many State Civil Procedure rules as there are States in the United States[9].

 

The CPC has a core set of 158 sections that are enacted by the Central Government and rules (organised in groups of 51 “orders”) that can be modified by the High Court of State with State wide applicability[10]. The CPC is flexible in its legislative design but due to a complex set of factors it is somehow always blamed for delays in courts. But when one generally compares the broad structure of England and Wales’ Civil Procedure Rules or US’s Federal Rules of Civil Procedure, they are pari materia to the CPC except that the CPC includes a detailed execution mechanism.

 

The CPC in its original design was to be the minimum common code for all courts, for disputes small or large, lacks tools for managing complex litigation.The Commercial Courts Act, 2015’s amendments to the CPC are a step in right direction for resolving complex commercial disputes. The CPC’s basic tool for multiparty representative litigation is the Order 1 Rule 8 (one person may sue or defend on behalf of all in same interest) that permits a “representative suit”. The requirements for applying Order 1 Rule 8 are: (i) parties are numerous; (ii) parties have same interest; and (iii) necessary permission is obtained, and a notice is given[11].

 

Arbitration is the preferred option for commercial dispute resolution in India, particularly for construction disputes. As a country building large scale infrastructure, construction disputes are increasing. But efficiency of arbitrating these disputes is questionable. Several reasons exist for inefficiencies in arbitrating construction disputes. Some causes of these inefficiencies are: inability of parties to narrow down disputes to a few key issues, lack of proper documentation and correspondence, inadequately experienced tribunals, archaic evidentiary methods, etc. This article offers some suggestions to remove inefficiencies in commercial and construction litigation through better practices.

 

While the Companies Act, 2013 includes a Section 245 for class action litigation and the Consumer Protection Act has a class action provision, these remain largely unused being untested by litigants[12]. Some class actions are asserted via public interest constitutional writ litigation. In a nutshell, class action or mass tort actions that grant substantial damages to victims are virtually absent in India.

 

There is no doubt that some judicial administrative policy work is happening in India too. But it is all ad hoc. Some examples of judicial policy innovation exist. For example, like the Restatement of Values of Judicial Life,  adopted by Full Court meeting of the Supreme Court of India in 1997[13]. But ad hoc nature of these efforts is illustrated by an observation in a recent case concerning electronic evidence: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[14]. Here, the Supreme Court hoped that authorities will take notice of effort put in by a committee of Judges to create a set of rules for electronic evidence:

 

  1. 65. … A five-Judge committee was accordingly constituted on 28-7-2018. After extensive deliberations, and meetings with several police, investigative and other agencies, the Committee finalised its report in November 2018. The report suggested comprehensive guidelines, and recommended their adoption for use in courts, across several categories of proceedings. The report also contained draft rules for the reception, retrieval, authentication and preservation of electronic records. In the opinion of the court, these draft rules should be examined by the authorities concerned, with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence.[15]

 


E.    Global Best Practices for Complex Dispute Resolution


The United States of America’s Federal Rules of Civil Procedure includes provisions for complex litigation. For example, Rule 16 concerns, “Pretrial Conferences; Scheduling; Management”. Specifically, Rule 16(c)(2)(L) permits the trial Judge to adopt special procedures for , “managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems”. This provides flexibility to a federal court’s trial Judge to customise procedures in complex litigation to manage  issues related to multiplicity of parties, legal challenges, or evidence.

 

The Federal Judicial Centre has published a “Manual for Complex Litigation”[16]. This manual has excellent guidance on managing judicial supervision, role of counsel, pretrial issues like discovery, trials, settlement, and class actions as a specific type of complex litigation. The Judicial Conference of the United States has published a “civil litigation manual”[17]. This manual has detailed guidance for Judges to execute a case management plan, pretrial discovery, electronic discovery, pretrial motions, alternative dispute resolution methods, trial planning and actual trial itself. Of specific interest is its Chapter 7, “special case matters”, that deals with complex litigation. The Chapter 7 includes general guidance on complex cases, mass torts cases, class action litigation and expert evidence. Further guidance is given on high profile cases. Interestingly, there is guidance on media management in high profile cases, an increasing need in India too.

 

There is academic guidance on complex litigation available too through dedicated research centres in American universities. For example, George Washington Law School’s James F. Humphreys Complex Litigation Centre has published “Guidelines and Best Practices in Class-Action Litigation” for public comments[18].

 

The Business and Property Courts of England and Wales’ publishes various litigation guides, for example, commercial court guide[19] (incorporating the admiralty court guide) and the technology and construction court guide[20] and the intellectual property enterprise court guide[21]. While these are non-binding and litigation guides for specific courts, they include elements of managing complex litigations.

 

Arbitral rules or guidance notes from arbitral institutions provide specific guidance to manage key aspects of complex disputes. There is guidance available for discovery best practices in construction arbitration specially[22]. Specialised arbitration centres and their rules for complex disputes like construction are also emerging fast[23]. There is ongoing research by arbitral institutions to streamline document production[24].

 


F.    Suggested Remedies for Efficient Dispute Resolution in India


A few suggestions for improving methods of complex dispute resolution in India are describe next:

 

(a) A dedicated body for judicial procedural innovation. India needs a permanent judicial body with a statutory basis that is focussed on process innovation in judiciary from District Court to Supreme Court level. An example of this is the Judicial Conference of the United States, a century old body, that includes Judges across Full Federal judiciary from District Court upwards that makes direct recommendations to the US Congress on federal judicial issues[25]. The Judicial Conference of the United States does useful work through its sub-committees. Integration of trial and tribunal judiciary is critical in any such body. Some innovations have happened in Indian judicial meetings held at times but there is no institutional basis to these nor any regular published outputs of such ad hoc efforts.

 

(b) A guide for best practices in implementing Commercial Courts Act, 2015 is much needed. While a few high courts have amended their original side rules for commercial courts, but much needs to be done to separate conventions and practices of the ordinary civil trials from commercial court trials. There needs to be a scale of sanctions that include fines for violating case management timelines. These can be implemented by amendments to the law or through rules to make the commercial courts effective.

 

(c) A great opportunity exists for arbitration centres with their dedicated set of rules to innovate on complex arbitrations. Indian arbitral institutes can create dedicated construction or complex arbitration rules to expedite construction arbitrations considering the industry practices in India. In particular, voluntary disclosure of documents is a much required feature in expediting construction arbitration in India. Guidance in form of how to claim and prove common heads of construction claims would be very useful. Further, guidance on how to effectively produce and manage massive documentary evidence by building a common correspondence index and a statement of jointly agreed facts can be done.

 


G.   Conclusion


Indian legal system needs to build its complex litigation capabilities by continuous research in rules, training for lawyers and Judges, and creating non-binding court guides. The Commercial Courts Act, 2015 provides a great opportunity to build a new system within the existing courts that can handle complex litigation. But it seems there is more emphasis on aligning commercial courts with existing court practices and conventions than a radical rethink in the method and speed of conducting commercial trials. A parallel opportunity exists for arbitration centres in India to innovate on complex disputes by providing industry specific rules, particularly for construction disputes.

 


† Hasit B. Seth practices as a counsel in the Bombay High Court, India and in arbitrations.

[1] Black’s Law Dictionary, (9th Edn.) p. 1017.

[2] For example, See Harvard Law School’s Prof. Richard Clary’s Spring 2022 course titled “Complex Litigation: Legal Doctrines, Real World Practice”. See HERE.

[3] See, Union Carbide Corpn. Gas Plant Disaster, In re, 634 F Supp 842 (SDNY 1986).

[4] See, Prof. Marc Galanter’s Affidavit, Law School Digital Repository, University of Wisconsin, HERE .

[5] See, Affidavit of N.A. Palkhivala In Support of Defendant’s Motion for Dismissal on Forum Non Conveniens Grounds.  See HERE (Part of Baxi, et al., Mass Disasters and Multinational Liability: The Bhopal Case, 1986, Indian Law Institute).

[6] Facts and Figures, Bhopal Gas Tragedy Relief and Rehabilitation, Government of Madhya Pradesh. See HERE.

[7] See, “Bhopal Gas Tragedy: New SC Bench to Hear Compensation Case”. See HERE .

[8] See, Union Carbide’s Bhopal Website. See HERE .

[9] See, Civil Procedure – State Laws, Legal Information Institute, Cornell. See HERE .

[10]Civil Procedure Code, 1908, S.122.

[11] Mulla, The Code of Civil Procedure: Abridged (12th Edn.) p. 421.

[12] Consumer Protection Act, 2019, S. 2(5)(v).

[13] See, Restatement of Values of Judicial Life. See HERE .

[14] (2020) 7 SCC 1, 57.

[15] The draft of these rules cannot be found online as there is not even a website collating such efforts, though good effort has gone into creating these electronic evidence rules can be seen from this note on Centre for Development of Advanced Informatics (C-DAC) website: HERE .

[16] Federal Judicial Center, Manual for Complex Litigation, Fourth, 2004. See HERE

[17] The Judicial Conference of the United States Committee on Court Administration and Case Management, Civil Litigation Management Manual (2nd Edn.) 2010. See HERE .

[18] See, James F. Humphreys Complex Litigation Center, Guidelines and Best Practices In Class-Action Litigation, See: HERE .

[19] See, The Commercial Court Guide, (11th Edn.) 2022. See HERE .

[20] See, The Technology and Construction Court Guide, (2nd Edn.) 2005. See  HERE .

[21] See, The Intellectual Property Enterprise Court Guide, 2019. See HERE

[22] See, American Arbitration Association, Construction Discovery Best Practices. See HERE .

[23] See, American Arbitration Association’s Construction Industry Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Construction Disputes). See: HERE. JAMS Construction Arbitration Rules. See HERE . International Institute for Conflict Prevention & Resolution’s Rules for Expedited Arbitration of Construction Disputes. See HERE .

[24] See, ICC Arbitration Commission Report on Managing E-Document Production. HERE .

[25] Judicial Conference of the United States. See HERE . Note that this is very different from Indian judicial academies which are roughly comparable to the Federal Judicial Center (FJC) in United States that focuses on policy-making and training: HERE , though Indian judicial academies have no formal role in judicial policy-making. The FJC produces excellent research as seen Here

Op EdsOP. ED.

Law and Psychology are two extremely fascinating subjects. However, under the Indian legal system, the two do not seem to cross paths as often as they should. Psychology, while being tricky, can also be an extremely effective tool in criminal trials in particular. It has to be put into use through extremely professional and credible individuals.

Early psychologists like Luigi Galvani and Paul Broca set out to establish that the human brain was mechanical in nature and worked like a machine. While Galvani used electricity to induce movement in a dismembered frog leg, Broca (a doctor by profession) embarked on a different experiment. Broca observed that many of his patients had a peculiar condition where they could perfectly understand what was asked of them but could not form comprehensible speech of their own.  Broca convinced a few such patients to pledge their brains for study after they were gone. He studied these brains and found out that each of these patients had damage to the same part of their brain, now known as ‘Broca’s area’, the part of the brain understood to be responsible for speech. The experiments conducted by the likes of Gulvani and Broca drew home the point that human brains, though complex, could be studied and specific parts of the brain were responsible for specific functions. Later, the rather well-known Sigmund Freud came in with his idea of Ego, Super Ego and ID. Keeping in view with the belief that the human brain could be studied, these psychologists kept grinding and came out with all of what we know today – the sympathetic mode of the brain, the parasympathetic mode, how the amygdala is responsible for perceiving danger, how the removal of corpus callosum effectively results in two brains, hippocampus and how it lays down your conscious memory, visual agnosia – where people can see things but cannot recognise them, the split brain phenomena, schizophrenia – the list is endless. Therefore, the human brain is perfectly capable of being studied and an expert at psychology should be able to give us fascinating and reliable insights into the minds of criminals, witnesses, alleged victims – thereby providing immense help and support in complex criminal trials. As to how such expert opinions are to be received would depend from case to case and jurisdiction to jurisdiction. A lot of thought is being put to this worldwide and rightly so.

Yet another interesting example of how tricky the brain can be is the example of ‘procedural memory’. Procedural memory is responsible for our skills. For example, being able to play a guitar. The procedural memory has been found to stick even if a person loses his memory. While the person may not remember a thing, give him a guitar, he is likely to start playing it perfectly well. One can find many more fascinating accounts in this regard.

Let us take another example in the seemingly unending and extremely fascinating tricks that the human mind can play and merge it with how it could cross paths with the law. Repressed memories also known as recovered memories have been seen to frequently exist in victims of extreme child abuse. The victims of such child abuse have been (at times) found to have no recollection of the abuse and the legal dilemma begins when such victims recover or claim to have recovered their memory often as late as 20-25 years after the alleged event. How potent do these instances of ‘recovered memory’ become when backed-up with corroborating evidence?

While this remains a highly contentious branch of psychology, its interplay with law remains at the heart of quite a few legal battles. The Courts in the United States seem to have dealt with this phenomenon to quite an extent and one case that came into spotlight was the murder of Catholic Sister, Cathy Cesnik in Baltimore, United States.

Cathy Cesnik’s was a teacher at Archbishop Keough High School, it is alleged that two of the priests, Fathers Joseph Maskell and E. Neil Magnus, were sexually abusing the girls at the school in addition to trafficking them to others. Cathy Cesnik went missing on November 7, 1969 and it was on January 3, 1970, that her body was found in a remote area of Lansdowne.

In 1995, Teresa Lancaster and Jean Wehner, former students at Keough claimed to have been sexually abused by Maskell and filed a lawsuit against Maskell, the school, the School Sisters of Notre Dame, the Archdiocese, and Bishop Keeler. Wehner claimed that she had had a conversation with Cathy Cesnik about what she was being made to endure and that Cesnik had told her that she would take care of it. This, according to her, was the reason Cesnik got killed. The trial court dismissed the action as time-barred by the statute of limitations. The plaintiffs appealed. A writ of certiorari was granted by the Court of Appeals of Maryland which upheld the lower court decision, ruling in part, “…that the mental process of repression of memories of past sexual abuse does not activate the discovery rule”. Wehner also claimed that Father Maskell took her to a site where she saw Cathy Cesnik’s body and that it was done to further intimidate her and make sure that she kept quiet.

The allegations made by the two ladies gained further credibility as scores of women started to come forward claiming they had undergone similar experiences with Father Maskell and E. Neil Magnus. There was a huge clamour in the United States to amend the limitation law and more than 20 States went on to codify different kinds of recovered memory laws. As a result of these changes, many lawsuits alleging child sexual abuse that occurred many years before were filed.

The law of limitation with regard to criminal cases in India is dealt with under Section 468 of the Criminal Procedure Code, 1973:

468. Bar to taking cognizance after lapse of the period of limitation.– (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3)  For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

There is clearly no impediment as far as the limitation aspect is concerned, even though the Courts are usually not as liberal as the afore-mentioned section may make one believe. The real impediment is the reluctance to rely on psychology and also the lack of experts in the field. Paying more attention in this regard will certainly do us no harm. It may only end up in a more robust investigation, it may only endup in bringing more perpetrators to book and could also be a mitigating factor while sentencing, where appropriate. While the top judiciary has been vocal on the use of technology and modern means to enable a better justice delivery system, the spotlight must also shine on the immense potential that psychology has to offer in the legal field.


* Partner, L&L Partners, New Delhi

COVID 19Op EdsOP. ED.

Whether the remote hearings are on an online dispute resolution (ODR) platform, or  e-courts hearing the urgent reliefs; there are very many loopholes that the Indian legal system is going through currently. And I will try and throw light on some of them in this article.

All of us are stuck in an unfamiliar and unprecedented situation with coronavirus wrecking hell in our lives. We all know that we are far from finding a solution to this problem. Even if, hypothetically and focussing on a distant silver lining; the lockdown is lifted ; we will still have to voluntarily practice social distancing.

We should not ideally be exposed to public places or places where there are more than say 4 people. And even if there are only 4 people, coming from different places and backgrounds, you don’t know if it’s safe to be amongst them. Accepting this reality, we all know it is going to be difficult for courts to function normally for a long time now. So, we are at the mercy of technology, online dispute resolution and remote hearings to survive and try and normalise the court hearings as much as possible.

However, we are also far from being good and efficient at remote hearings or using online dispute resolution effectively. It’s been almost a month since the courts started hearing urgent cases through remote hearings. Hearing the court experience, and other experiences from platforms and other modes of dispute resolution, this article aims to talk about the practicalities that we need to take into consideration for remote hearings.

Let me start my addressing the technical considerations that one will have to be mindful of:

1. INTERNET BANDWIDTH

The first and foremost hindrance, especially in India will be the internet bandwidth. We are a country which doesn’t have 5G yet. Efforts are being made to reach there, but currently we do not enjoy 5G services.

These days where parents are working from home; also have children who are attending online schools. Both of them use the internet and hence if someone wants to be on a video call using the same wireless internet, it becomes difficult for them. Of course we have our mobile internet to be used as hotspot but does that suffice the bandwidth we need? Now, I’m no engineer or I don’t understand the technicalities of what internet speed we require, but out of personal experience I know that what we have is not enough.

So, amidst lockdown we’re all hooked on the internet and all of us are going to have to be able to deal with the limited resources.

I will give you another example, I was recently attending a webinar hosted by SIAC talking about making the shift to online arbitration. The irony here is that the moderator himself had to leave the session midway because of internet connection issues. Just imagine the contrasting nature of the system wherein you’re talking about online recourse of arbitration and dispute resolution; but you don’t even have the means to explain the instructions online.

In the Indian context where most of the nation is comprised of people in the middle class and upper middle-class strata of society, it is very difficult to suddenly find the technology in order to suffice everybody’s needs.

Internet, as we know is a must to hold video conferencing and we need urgent attention towards that. Giving my own example again, I was speaking at a webinar on this same topic recently and before starting the video call; I made sure my family doesn’t use the WIFI and made them switch to their mobile hotspot so that there are no interruptions at my end for the Webinar.

There will be a lot of similar compromises, in each household when it comes to internet availability and usability in India. And this is one of the core areas that we need to work on.

2. TECHNOLOGICAL ADEPTNESS

When it comes to technological adeptness, the instances of the online court hearings for urgent matters that are currently taking place shall serve as perfect examples.

The Judges are still coming to the court premises in order to attend the hearings. This move still puts them in danger, considering the phase where India is with respect to COVID 19. The Supreme Court notification and guidelines on video conferencing also provides for infrastructure in the Supreme Court for parties and their advocates to utilise if they don’t own or have a laptop, mobile phone or tablet to use. Of course, social distancing is maintained and the parties/advocates are in a different room whereas the Judges are in a different room. But that still puts them in danger. You never know where parties are coming from and what conditions they are living in, whether those conditions are sanitary or not?

And with the recent news coming in from the Supreme Court where in one of the clerks tested positive for COVID, is just another example how dangerous it is for people to still venture out.

However, most people are not technologically adept to hear or appear for matters from the comfortable corners of their home. Either they don’t have the infrastructure or they are not absolutely convinced of the fact that they will be able to handle the video conferencing and the applications by themselves, without any help.

If I give another example, is the situation of Gujarat High Court; wherein sanitization tunnels have been erected so that people who NEED to come to the Court to facilitate the online hearings, can do so without worry. Technological inability is one of the biggest obstructions that we are going to face for remote hearings.

Also, most Judges or adjudicators in a court hearing, arbitration or mediation are generally beyond the age group of 40. Given a specific age group, it is not very easy for them to learn to use technology efficiently. And that shall be a big lacuna, in my understanding. In such a short time, to not only be able to learn the technology but also then master it and use it efficiently; is going to be a big task.

Another issue is that most lawyers use stenographers, and do not type or draft applications by themselves. It is only people currently in their 30s and the generation after that who are able to draft and type on their own devices. If you look at any well-established lawyer in their 40s and beyond; and I apologize in advance for the generalisation; but I am pretty sure that all of them use stenographers.

Where do we get the stenographers in a complete lockdown state, currently? And how do we manage e-filing as well? I have also heard complaints with regards to uploading the applications or petitions via e-filing and that the portal does not provide with ample memory strength. They have a cap of 2MB or 5MB files and sometimes that may be less for voluminous records.

This wave of change, in my humble opinion should not be resisted. However, having said which I absolutely empathise with the generation of lawyers, Judges, arbitrators and mediators who have never used technology and who will have to float above the pressure created by the situation and be able to learn afresh.

While that is also a rosy picture I’ve painted, more often than not, people will have to make real efforts to be able to accept and adapt to this change or learn how to use the computer, from scratch. And this we are talking about people who can easily afford learning. However, what about people with minimum resources who would not be able to even afford the usage of technology? That is a question left unanswered.

Recently the Chairman of Bar Council of India wrote to the Chief Justice of India advising against continuing virtual hearings after the lockdown is lifted. His reason was that most advocates are not able to attend to technology well; and hence unable to be self-sufficient.

We absolutely need a well-rounded approach here to make the entire legal community adept to technological needs that we are facing currently.

3. CHOICE OF PLATFORM

Choosing the correct platform is also an important consideration for remote hearings because confidentiality plays a huge role, for any type of dispute resolution process. All of us have heard and read about what happened to Zoom. The Government of India has now come up with guidelines to make sure that under dire circumstances, even if we use Zoom, then we must ensure taking certain preventive steps so that we do not falter or get our accounts hacked.

Hence, choice of platform is one of the most sensitive considerations to be made while going for remote hearings. Google Meet, I believe is one of the safer alternatives (not a paid promotion).

Having said all of this, we will still have to be very careful in making the correct choice for an appropriate platform taking in mind the safety, security, confidentiality of the proceedings. The Supreme Court uses this app called VIDYO, for their video conferencing and court hearings.

There is also another part of confidentiality wherein people remotely attending hearings have been caught recording the hearings on their phones. This is an absolute breach especially in commercial matters. So, we need to bind people by an oath or we need another way to ensure that such activities happen. But how do we do that? We cannot enter the houses of the ones appearing, except virtually. So how do we ensure that no one is recording these hearings?

These are a few technical considerations,  that made me wonder and ask questions. I also wish to touch upon the considerations that a lawyer representing a client in a hearing or a counsel, should take into account before attending a remote hearing.

  • The foremost thing is the decorum. A counsel needs to make sure to consider this online hearing just as important as personal court appearance. Formal clothes and attire; are not excusable. We all have read about how lawyers were not adhering to the code of conduct and formal dressing while appearing for online hearings. And we need to make sure to consider this with extreme sincerity.
  • Absolute importance should be given to the written submissions. In India especially, more weightage is given to oral advocacy in comparison to sound legal drafting. However, when it comes to remote hearings; the technical glitches possible to occur are high as explained earlier. And hence, the reliance on written statements is bound to increase.

We have fast track arbitrations already in place wherein people tend to only rely on written submissions and oral hearings are seldom conducted. With the world going online and relying more on virtual hearings, it will be preferable for a lot of smaller disputes to adopt fast track arbitrations with focus only on the written submissions.

So, we need to make sure that our drafting is top notch and perfect, without any loopholes. Over the counter citing of case laws and introducing new precedents, at the time of the hearing; will definitely not be allowed anymore. So, one has to carefully draft the written submissions, to ensure that everything needed has been included and its carefully worded as well.

  • Secondly, with respect to oral advocacy, we Indians have the habit of splurging on oral arguments going on for days and days. With remote hearings, we will have to cut short the explanation of each and every point and go ahead with the assumption that the adjudicator/mediator/arbitrator/Judge has read the files thoroughly and that explanation on facts and smaller points is not required.

The counsel also will need to be brief and crisp with their arguments; all the while making sure that you are articulate enough and that everyone concerned can hear and understand you appropriately. Oral advocacy in remote hearings is hence going to be tricky and not the exact same that happens in face to face hearings, especially for the ones who are used to court hearings.

Another point that I need to make here is coupled with my earlier technical consideration of being technologically sound.

Referencing of the written material: Often times you will have to take the Judges through the written material or you’re reading out from the submitted written material. Being able to share those documents online and handholding the Judge through that, is only possible if you know how to share the screen and approach that in the video application, you are using.

Referencing documents and sharing the screen for pointing out the appropriate para or lines is a task that every counsel shall have to learn. In Zoom and most other video conferencing apps, we have the option to share screen and show particular documents to the people in the meeting. So, one has to be prepared with all the documentation and files open in the background to quickly show them across to the Judges/arbitrators in the meeting. It again gets us back to the point of how technologically adept you are to be able to efficiently juggle between these screens and multitask.

Most senior counsel during oral advocacy are habitual with their juniors handing out files and case laws to them. It is highly possible that the same treatment may not be available to them in remote hearings as everyone will be practicing social distancing and each man will be left to their own mercy. Hence, the counsel have to be as aware and adaptive to technology for being able to be articulate in their oral advocacy during remote hearings.

So, oral advocacy in remote hearings is definitely interrelated to how well you are able to operate the video application.

  • Another consideration is the entire concept of instructing counsels and arguing counsel will vanish or will be extremely difficult to survive, when it comes to remote hearings. The instructing counsel cannot discreetly guide or suggest something to the arguing counsel; during the hearing. Which they normally would if face to face. And this applies to all forms of dispute resolution.

How would they manage to do that here?

It will also come down to the fact that except for expertise, there will be just as much effort in mastering the technology by senior counsels. Even preparation by all parties concerned will be increased, because of inability of assistance during the hearing. 

  • Your preparedness will be absolutely visible and so will be your expressions. Unlike the courts or the arbitrations, there will not be a dias or any distance between you and the Judges. Your face will be visible and flashing on their screens; and hence the Judges will be able to read each and every one of your expressions. So, you need to be sure to not give away your bluntness or any of your overt expressions because even when not in the courtroom, utmost respect needs to be paid to the Judges.
  • There is another consideration for counsel during remote hearings; which is witness examination.

Technology availability at the witness’s end and his ability to use that technology, is one of the most important questions to consider. Also being able to prepare the witness well in advance, to be able to show him the relevant documents are going to be tough especially when it comes to doing all of this on video call and not being able to meet face to face.

Often times, our entire cases depend on witness testimony. And if we are not able to prepare the witness well, or the witness is not able to attend to technology well; that can pose as a big hindrance.

So, we will have to rely on the written witness statements more than the oral testimony because of the reasons earlier mentioned. Reiterating the importance of drafting a witness statement.

Indian courts have earlier often taken witness testimony through video conferencing. The most famous case is that of David Headley giving his testimony through video conferencing as he was and currently is in an American prison. He was proven to be an accomplice in the 26/11 terror attacks and hence his testimony was taken by the TADA court through video conferencing.

What I mean to say it is not impossible for us to get through witness examination via video conferencing. There will just be additional challenges, that all of us will have to be more mindful of. The Courts and the arbitral institutions as well as the chambers of commerce conducting ADR hearings will have to provide technological solutions to be able to reach the witnesses easily. Easy access to technology whether it is mobile phones, internet, video calling apps in remote interiors of the country and villages will be needed to get witness examination, at times. And that should be made possible without having to endanger anybody’s lives.

However, gaining the certainty that the witness is not being prompted or not reading out of a script; is a challenge still left to overcome. There is no way one can be aware of the fact that the witness is not being helped in a manner disallowed by court, ordinarily.

These loopholes still remain and are going to be very difficult to find answers or solutions to and hence the only solid way to straighten this discrepancy will be to focus positively on the written testimony than oral.

  • Another consideration is the transcripts:

Will transcribers also join a virtual hearing/meeting? Or do we have inbuilt transcribing softwares in our technology? If yes, are those softwares easily available?

These are obvious questions that come to mind. A lot of us, especially when a part of international arbitrations or complex arbitrations, rely heavily on transcripts. And that is very important for us to receive at the end of every day of the hearing.

If we happen to add transcribers to the virtual hearings, then technical mishaps might also hamper their ability to understand what the arguing counsel is arguing. If there are connection issues for example, they might not be able to hear what the counsel has said and in turn will not be able to add the same on the transcript.

We might need an inbuilt transcription software on to these video conferencing apps for us to be able to get clear transcripts.

However the same are not easily available and  also come with a heavy price tag which shall be a difficult situation for people to purchase, especially for smaller disputes.

We also do not have inbuilt transcription services in any of the popular video conferencing apps, as of now.

The above are certain considerations that all of us should be prepared and mindful of. While I discussed all of this, it may sound like I only focussed on the problems. However, there are many benefits of online and remote hearings as well. And it’s just a matter of time that all parties concerned educate themselves and get themselves adept to technology. We’re also waiting for technological innovation with respect to certain concerns and maybe we will be able to ace the remote hearings, in no time.

I hope we give our undivided attention to get better and learn more during this period; so that we could take advantage of all the innovation once the world gets back to normal; however distant and far that reality may be. Be safe, all of you!


* Arbitration Lawyer, B.Com LL.B (Hons)