{"id":284075,"date":"2023-02-16T13:30:02","date_gmt":"2023-02-16T08:00:02","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=284075"},"modified":"2023-02-24T18:01:16","modified_gmt":"2023-02-24T12:31:16","slug":"live-first-edition-of-delhi-arbitration-weekend-2023-16-19-february-2023","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/02\/16\/live-first-edition-of-delhi-arbitration-weekend-2023-16-19-february-2023\/","title":{"rendered":"Live | First edition of Delhi Arbitration Weekend 2023 [16-19 February, 2023]"},"content":{"rendered":"

Delhi Arbitration Weekend, 2023<\/strong>: The Delhi International Arbitration Centre (\u2018DIAC\u2019) brings together the global arbitration community, by hosting its first ever edition of Delhi Arbitration Weekend, 2023 (\u2018DAW\u2019). The event aims at building a network of experts, practitioners and academia, by engaging them in dialogues and panel discussions, led by renowned legal luminaries, judges and experts in the field of arbitration, from across the globe.\"\"<\/p>\n

DAW has invited various International Arbitration Institutions and key representatives\/partners of the top International and Indian law firms specialising in dispute resolution to contribute towards the resolution of challenges confronting the arbitration community. DAW has received over 1380 applications for 350 seats.<\/p>\n

The event focuses on recent trends and developments in both Domestic and International Arbitration and aspires to identify and evaluate the best practices in arbitration that can be integrated into the mainstream.<\/p>\n

Spread over multiple sessions, starting from 16-02-2023 to 19-02-2023, and powered by distinguished experts and speakers from over 14 countries.; DAW would be the centre stage for envisaged upon the contemporary issues and challenges in the arbitration space.<\/p>\n

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FEBRUARY 16, 2023 (5:00 P.M. \u2013 6:30 P.M.)<\/strong><\/span>
\nINAUGURAL\u00a0<\/strong><\/span><\/p>\n

\n

Chief Guest:<\/b> Hon’ble Dr. Justice D.Y. Chandrachud, Chief Justice of India<\/p>\n

Guest of Honour:<\/b> Lord (Peter) Goldsmith KC, PC (Chair of European and Asian Litigation, Debevoise & Plimpton; Former Attorney General of England and Wales and Northern Ireland)<\/p>\n

\n
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Justice Vibhu Bakhru<\/figcaption><\/figure>\n

The welcome address was given by Justice Vibhu Bakhru, Chairperson, DIAC.<\/strong> He said, the DIAC has framed new set of rules that will come into effect from 01-04-2023, the new rules provide for scrutiny of draft awards, the arbitral tribunal is required to submit the draft award to the coordinator, for scrutiny by a committee before delivering the same, the draft award will be reviewed for typographical errors, better formatting and other issues. The Comments of the committee will be forwarded to the Arbitral Tribunal for its consideration. We believe this will improve the quality of awards, as it is necessary to build an environment of accountability and transparency. The new rules also provide for publication of awards on the Centre’s website, however, the parties can keep the awards confidential, prior to publication.<\/p>\n

He said that DAW is yet another initiative to act as a catalyst and bringing together professionals in the field of arbitration in a single platform for a dialogue on various aspects on arbitration law. We have 69 delegates participating from 14 countries.<\/p>\n

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Justice Satish Chandra Sharma<\/figcaption><\/figure>\n

Justice Satish Chandra Sharma, Chief Justice, Delhi High Court<\/strong> said, DAW a brain child of DIAC ,this three days conference is going to be a confluence of some of the best legal minds from across the world. The entire effort has been put in recognition of the fact that the arbitration has acquire the centre stage in the global dispute resolution process. We live in a world in which the reality of globalisation often finds itself in a confrontation with municipal laws and systems, wherein different legal regimes control the fate of commercial transactions having a multinational bearing.\u00a0 In such a scenario the true impact of a global partnership could not be realised unless we adopt a uniform system for dispute resolution. Such a system will differ in its shape and form from one jurisdiction to another, however it must be based on a common jurisprudential ground.<\/p>\n

Further, he said that International arbitration has been emerged as a great unifying force which has invariably infused the element of trust building in commercial transaction.<\/p>\n

Justice Sharma also said that, today we stand in cognition of a unifying effect of arbitration as a model of dispute resolution. The dispute resolution in India is not a discovery of the present century, we had in this country an ancient system of dispute resolution. Since time immemorial, village counsels have been first formed and first forum of dispute resolution for a significant ruler for the population of this country.<\/p>\n

He also said that the underlying element that formed the basis of this ancient system , was the ‘element of trust’. Even today, the efficacy of arbitral proceedings is based on trust. The trust that parties impose on the arbitrators and institutions.<\/p>\n

\"\"
Lord (Peter) Goldsmith KC, PC<\/figcaption><\/figure>\n

The Special Address was given by Guest of Honour Lord (Peter) Goldsmith KC, PC, <\/strong>he said that the <\/span>Indian<\/span> domestic courts are occupied with heavy case load.<\/span> For any country to become a leading hub for international arbitration requires a strong foundation. In his view, India\u2019s <\/span>foundation has been strengthened over the years, as India has an exceptional Advocates and Solicitors doing strong dispute resolution and commercial arbitration practices. He said that the strength of <\/span>the <\/span>Indian legal <\/span>profession is well <\/span>known ,<\/span> increasingly attracting international attraction of global law firms. <\/span><\/span>\u00a0<\/span><\/p>\n

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Lord (Peter) Goldsmith KC, PC<\/figcaption><\/figure>\n

Further, he said that he had the privilege of working with, sometimes against\u00a0 Indian lawyers, and they make outstanding team mates and formidable opponents. Also, Indian Judicial decisions today are pro arbitration , compared to the past and Indian Judiciary is continuing to play an active role and providing critical support for the arbitral process.<\/p>\n

The Keynote address was given by Dr. Justice D.Y. Chandrachud,<\/strong> Chief Justice of India. He <\/span>said<\/span><\/span> that India has a checkered history with arbitration. Legislative and judicial amends to move towards being a pro-arbitration jurisdiction. This doesn’t mean that there was no judicial intervention in arbitration.<\/span><\/span><\/p>\n

\"\"He said that with a vision to do away with the issues of the earlier regime and transform India into arbitration friendly country, the 1996 Act was largely based on UNCITRAL model law which reflected the prevailing consensus on the best practices in arbitration across the globe. Unfortunately, the progress of advances through the spirit of 1996 legislation were overshadowed by some of the judgments in judicial side.<\/span><\/p>\n

Further, he added that the 2015 amendment through insertion of explanation of Section 34 narrowed down the scope of court’s interference with arbitral award and grounds of being against public policy.\u00a0<\/span><\/p>\n

He believed that all stakeholders must work together to ensure that arbitration does not remain the choice of dispute resolution only for parties with large commercial ventures. Smaller businesses as well as individuals must be encouraged to include arbitration clause in contracts. This will also require arbitrations to be more \"\"affordable.<\/span><\/p>\n

He said that we need training for lawyers as well , because lawyers as much as \u00a0judges need to be part of the process of the whole mission\/ movement.<\/span><\/p>\n

In his view, the Delhi Arbitration Weekend is a perfect opportunity to put\u00a0 heads together & discuss some of the challenges and upcoming issues in the arbitration arena.<\/span><\/p>\n

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DAY 1: FEBRUARY 17<\/strong><\/span><\/h3>\n
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The first session(1A)<\/strong> chaired by Mr. Justice Uday Umesh Lalit on Day 1 relates to the discussion on Challenges and Issues in Arbitration Ecosystem: Is Institutional Arbitration ‘the’ Solution?<\/strong>
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\nThe Speakers of the event are Ms. Zarina Chinoy (General Counsel, EPC Division, Shapoorji Pallonji Group), Mr. Vijayendra, Pratap Singh (Partner and Head Litigation, AZB & Partners) and Mr. Tejus Chauhan (Director, South Asia, ICC International Court of Arbitration).<\/p>\n

As we progress towards the first day in the Delhi Arbitration Weekend, the event featured various experts from across the globe.<\/p>\n

The day started with the address of Uday Umesh Lalit J., as the moderator and various eminent speakers.<\/p>\n

Zarina Chinoy<\/strong> gave a very chiseled approach to arbitration and stated that she prefers to minimize the exposure of her group to ligation, reason being that Indian Courts are over whelmed and overburdened. Most of the \u2018construction documents\u2019 are voluminous; the projects take anywhere between 3-10 years to complete and witness evidence and documentation is inconsistent. If the same is taken to Court, the amount of time that it may take is incomprehensible and may result into gigantic expense for the parties.<\/p>\n

She further said that majority of the construction contracts with the government or the private institutions contains arbitration clauses, which are carefully word specifically stating the seat and venue of arbitration, the law that will prevail, jurisdiction, and the number of arbitrators to be appointed depending upon the claims according to the contract. The pre-requisite to appointing of an arbitrator is that they should be quick, impartial, fundamental knowledge of the procedure, time to dedicate to the process and the required skill sets. It is also expected that the award will be stated quickly and cannot wait indefinitely.<\/p>\n

Whereas Vijayendra Pratap Singh<\/strong> stated that the arbitration clause was like a \u2018tadka<\/em>\u2019 or a \u2018seasoning\u2019<\/em>, as it\u2019s the last thing in a contract and the first thing one will taste when a dispute takes place unlike the rest of the contract. He stated that the Arbitration clause was the only \u2018divorce clause\u2019 in the agreement so one has to provide for risk at the heightened sense since people may or may not cooperate. Therefore it has to fulfill 3 Es:<\/p>\n

    \n
  1. Efficiency<\/li>\n
  2. Economy<\/li>\n
  3. Effectiveness<\/li>\n<\/ol>\n

    If one is able to fulfil a contractual promise by making sure its enforceable, one bring about the ease of doing business and bring down the cost of doing business . He was of the view that the Arbitration was like a supplement to the process of dispute resolution available in Courts which allow access to justice while reducing the pipelines that go to Court.<\/p>\n

    \u201cInstitutional arbitration effectively vaccinates the process against dilatory tactics and is effectively an answer to gorilla noncooperation that takes place regularly.\u201d<\/em><\/p>\n

    Further, on the question of ad-hoc arbitration or Institutional Arbitration, he quoted that “there is flexibility, and flexibility brings accountability, but be careful what accounts you want.”<\/p>\n

    Tejas Chauhan<\/strong> pointed out that ICC over the last 10 years have seen that there is growing preference for Institutional Arbitration. At the beginning of the year 2000, ICC had over 300-400 cases which went upto about 900 till the year 2020.<\/p>\n

    He stated that it was not only the commercial sector but economic sector also ventured in ICC which come from life sciences , pharmaceuticals, insurance , trade and alike. While emphasizing on the fact that institutional arbitration was not expensive.<\/p>\n

    He further stated that it\u2019s a general belief that the amounts in dispute in institutional arbitration and international arbitration are only at the higher side but in the year 2021, ICC handled disputes from amounts ranging from 9000 dollars to 27 billion dollars. The case load in ICC also handled domestic cases in which there were two Indian parties resultantly the arbitration seat being in India.<\/p>\n

    The first session (1B)<\/strong> chaired by Mr. Justice Arjan K. Sikri\u00a0 on Day 1 relates to the discussion on Limits to Party Autonomy in Arbitration and Emergence of Commercial Courts.<\/strong><\/p>\n

    The Speakers of the event are Mr. Stephen Moriarty KC (Barrister, Fountain Court Chambers), Mr. Gaurav Pachnanda (Senior Advocate, Supreme Court of India) and Ms. Renu Gupta (Partner, Olive law).<\/p>\n

    Justice AK Sikri said that when parties go to arbitration , they don’t want Court system , they want that the dispute should be decided in a private forum chosen by them. This is the principle behind mediation as well. This freedom should be given to them.<\/p>\n

    He said that , the law recognises, the society recognises and the system recognises that it is not necessary for the parties to approach the Court only, if they want their disputes to be resolved in a particular manner, outside the Court system then they are free to do so. Here, the question of party autonomy comes. This is the jurisprudential basis of party autonomy.<\/p>\n

    As per Justice Sikri,\u00a0 Arbitration and Conciliation Act also recognises this and contains provisions that what kind of freedom needs to be given to the parties.<\/p>\n

    Gaurav Pachnanda <\/strong>said that over the last few years there were two competing trends emerging, both from the manner in which legislative intervention has taken place in arbitration law and also in the manner in which Courts have interpreted and applied arbitration law in India.<\/p>\n

    As per him , in the last few years there was an attempt , by the Courts to stretch the envelope and make our conventional notions of how law should be defer to party autonomy in matters relating to arbitration law.<\/p>\n

    Renu Gupta\u00a0<\/strong>has thrown some light on the limitations to party autonomy in arbitration, and said that even though arbitration and Courts are looked as separate forums , but they are not.<\/p>\n

    The party autonomy and the limitations to party autonomy need to be seen from a different lens , not as a restriction but as something that helps in dispensation of justice.<\/p>\n

    Explaining the emergence of Commercial Courts Stephen Moriarty KC<\/strong> said that their is no link between party autonomy and emergence of commercial Courts.<\/p>\n

    He also said that there are number of respects in which the international commercial Courts can fill the gaps that is provided by limitation on party autonomy, like it can allow joinder of parties.<\/p>\n

    The second session (2A)<\/strong> chaired by Mr. Justice Hemant Gupta (Former Judge, Supreme Court of India) on Day 1 relates to the discussion on Should Patent Illegality as a Ground Continue in Domestic Arbitration?<\/strong><\/p>\n

    The Speakers of the event are Ms. Sherina Petit (Partner, Norton Rose Fulbright LLP), Ms. Payal Chawla (Founder, Jus Contractus) and Mr. Anirudh Krishnan (Founding Partner, AK Law Chambers)<\/p>\n

    The question of \u201cShould Patent Illegality as a Ground Continue in Domestic Arbitration?\u201d was addressed by Justice Hemant Gupta.<\/p>\n

    Talking about the initial days of Arbitration and Conciliation Act, 1996 coming into force, Justice Hemant Gupta<\/strong> shared his thoughts that \u201ca plain reading of Section 34 regarding conflict with the public policy of India hinted of being a debatable issue which would sooner than later come up before the Court. After 26 years, we are still debating on what is the public policy of India which gives rise to setting aside of an award under the Act.\u201d<\/p>\n

    As opined by Justice Hemant Gupta, the exclusion of International Arbitration from the grounds of patent illegality in Section 34 (2-A) begets confusion. The provision probably grants the domestic parties with an incentive to\u00a0opt for international arbitration and get away from the domestic one. It is an indirect way of getting away from domestic award which is going to be challenged in Court. According to Justice Gupta, this gives parties with an option to go for foreign seats of arbitration and be governed by the laws accordingly. By this, we are indirectly persuading parties\/ giving incentive to parties to choose foreign arbitration, which is not a good idea. We should do away with Clause 2(a) and provide an equal playing field in respect of national and international arbitration.<\/p>\n

    The second session (2B)<\/strong> chaired by Ms. Justice Indu Malhotra (Former Judge, Supreme Court of India)on Day 1 relates to the discussion on Increasing Diversity and Access in Arbitration: Role of the Stakeholders.<\/strong><\/p>\n

    The Speakers of the event are Mr. Rajesh Pillai KC (Barrister, Three Verulam Buildings), Ms. Pallavi Shroff (Managing Partner, Shardul Amarchand Mangaldas & Co) and Mr. Vyapak Desai (Senior Attorney, Nishith Desai Associates)<\/p>\n

    Justice Indu Malhotra<\/strong>\u00a0 began with discussion over diversity issues in the arbitral panel for disputes in various kinds of international commercial arbitrations. According to her, investment treaty arbitrations have come under a serious apprehension and there is a legitimacy deficit, as also expressed by people on ground in the developing countries that arbitration panels are constituted by Westerners who are not familiar with the peculiar situations prevailing in the developing countries.<\/p>\n

    Regional diversity is equally important according to Justice Indu Malhotra, because people from certain parts of the globe may not be familiar with the problems faced by developing countries, because they have their own peculiar problems.<\/p>\n

    Advocating for diversity amongst the decision makers, Justice Indu Malhotra suggested that improving gender diversity will also introduce fresh plans for arbitral tribunals which are necessary to maintain a sustainable pool of arbitrators.<\/p>\n

    She added that \u201cIn fact, the number of women arbitrators is abysmally low, and I think that positive effort must be made to increase a pool with a large number of women who have taken to arbitration as an avocation and are available in various parts of the world.\u201d<\/p>\n

    The third session (3A)<\/strong> chaired by Mr. Justice L. Nageswara Rao (Former Judge, Supreme Court of India) on Day 1 relates to the discussion on Corruption in Arbitration: Knowing the Unknown<\/p>\n

    The Speakers of the event are Ms. Sapna Jhangiani KC (Attorney-General’s Chambers, Singapore), Mr. Francis Xavier SC (Regional Head, Dispute Resolution Group, Rajah & Tann Singapore LLP) and Mr. Nusrat Hassan (Co-Managing Partner, Link Legal)<\/p>\n

    Addressing the topic ,Justice L. Nageswara Rao began with discussing the initial days of arbitration law in India, when cases of fraud and corruption were alien to arbitrable matters triable by a civil court for want of evidence and the need for judge to look at the complaints in a different way in the court of law. After few rounds of Supreme Court judgment followed by Law Commission report examining the change in provisions, the Supreme Court regarded the judgment delivered earlier for non-arbitrability of corruption and bribery bad law and went on to deal with allegations of corruption by saying that these can be subject matters of arbitration.<\/p>\n

    Connecting the dots between arbitration and fraud, Justice Nageswara said that \u201cWhen it comes to arbitrators themselves indulging in corruption, it can be active or passive corruption. There can be corruption for monetary rewards. A quintessential example of corruption would be both actual and future payments made to the arbitrator for delivering an award. There might be non-monetary awards as well, which include any form of other compensation including the prospect of future arbitral appointments.\u201d<\/p>\n

    Now, putting forward the question of \u201cHow do you find out fraud and prove these methods of corruption amongst arbitrators?\u201d, Justice Nageswara discussed at length the dilemma of non-applicability of condonation of delay under Limitation Act due to Section 34 of Arbitration and Conciliation Act, 1996 which provides for limitation for entertaining an application under Section 34 as 30 days.<\/p>\n

    The third session (3B)<\/strong> chaired by Mr. Justice Badar Durrez Ahmed (Former Chief Justice, High Court of Jammu and Kashmir) on Day 1 relates to the discussion on Reimagining Arbitration in a Post-Covid World: Right to Physical Hearing<\/strong><\/p>\n

    The Speakers of the event are Mr. Constantine Partasides KC (Partner, Three Crowns), Ms. Pinky Anand (Senior Advocate) and Ms. Neeti Sachdeva (Secretary General and Registrar at Mumbai Centre for International Arbitration)<\/p>\n

    Justice Badar Durrez Ahmed<\/strong> began by stating that we have to examine the situation prior to Covid, during Covid and after Covid, that is how arbitration hearing evolved. As per his experience as an arbitrator, every hearing was physical hearing, and during Covid physical hearing came to a complete halt.<\/p>\n

    He remarked that, now everyone is comfortable with remote hearing.<\/p>\n

    Further, he said that the advantages and disadvantages of physical hearing and remote hearing needs to be examined.<\/p>\n

    Neeti Sachdeva<\/strong> expressed that India needs to be a leading light in institutional arbitration, and for institutions to be joining hands and promoting it will go a long way in making\u00a0 India do what we all dreamt of.<\/p>\n

    Pinky Anand<\/strong> said that the efficacy of remote hearing is principally built on connectivity and the technology being available. There needs to be inter se communications.<\/p>\n

    Constantine Partasides KC <\/strong>said that the advent of remote hearing was an absolute Godsent, as we continued to work during Covid as well.<\/p>\n

    In his opinion, we are undoubtedly going to retain the remote hearing as one of the choices open to us for the resolution of any case. It is a part now of arbitration menu and it is not going anywhere. But, whether it is a correct choice for\u00a0 a particular case, is really the question.<\/p>\n

    The fourth session (4A)<\/strong> chaired by Mr. Justice Deepak Gupta (Former Judge, Supreme Court of India) on Day 1 relates to the discussion on Adjudicating Construction Arbitration Claims: The Asian Perspective<\/b><\/p>\n

    The Speakers of the event are Mr. Julian Bailey (Partner, Jones Day, London), Mr. Ratan K. Singh (Senior Advocate; Founder and Chairman, Society of Construction Law) and Mr. David Thomas KC (Keating Chambers)\u00a0\u00a0<\/strong><\/p>\n

    Discussing the topic, Justice Deepak Gupta<\/strong> commented that the bread & butter for arbitration in India is \u2018Construction Arbitration\u2019 since almost 2\/3rds of arbitration matters arise from construction arbitration.<\/p>\n

    Justice Gupta is of the opinion that we need to develop our own construction jurisprudence with an Indian perspective.<\/p>\n

    Talking about Indian arbitration following the formulae laid by the Western world, Justice Gupta said that “While handling some construction arbitrations as an arbitrator, I have found that we normally blindly follow the Hudson Formula derived from Hudson Building and Engineering Contracts without even seeing what the evidence is. The basis must be the evidence and not the formulae since formulae only follow based on evidence. These formulae have evolved in the Western world having a completely different environment of construction as well as finance. There, the labour rates are much higher. In India, construction process is very much labour intensive, our inflation rates are also different as compared to the Western world.”<\/p>\n

    The fourth session (4B)<\/strong> chaired by Justice Shiavax Jal Vazifdar (Former Chief Justice, High Court of Punjab and Haryana) on Day 1 relates to the discussion on International Commercial Arbitration: Lessons from West and East<\/b><\/p>\n

    The Speakers of the event are Prof. Dr. Jacomijn van Haersolte-van Hof (Director General, London Court of International Arbitration), Mr. Manish Aggarwal (Co-Chair, Young International Arbitration Group, London Court of International Arbitration; Partner, Three Crowns) and Mr. J William Rowley KC (Barrister, Twenty Essex)<\/p>\n

    Justice Shiavax Jal Vazifdar\u00a0<\/strong>quoted CJI’s yesterday address at the inaugural function that sums up the value of this event , wherein he said that “this event sums up India’s arbitration ecosystem.”<\/p>\n

    He emphasised that there are two issues , first category is reciprocity , uniformity, comity, certainty and the second category is with respect to the finality of the reference.<\/p>\n

    On the first category, he said that the question is as to whether an annulled award at the Courts where there is the seat can be enforced in another jurisdiction.<\/p>\n

    Pressing on the practice to revisit the law and legislation from time to time, Prof. Dr. Jacomijn van Haersolte-van Hof<\/strong>\u00a0commented that \u201cIn order to stay best in class, you need to keep an eye on things, you need to make sure that your legislation is best in class, and that includes looking at other jurisdictions as well.\u201d \u00a0<\/span><\/p>\n

     <\/p>\n

    \n

    DAY 2: FEBRUARY 18<\/span> <\/strong><\/h3>\n
    \n

    The Day 2 commenced with discussion on the topic Appointment of Arbitrators : Discussing the Role of Judiciary, Institutions and Parties<\/strong> chaired by Mr. Justice Sanjiv Khanna<\/strong> (Judge, Supreme Court of India).<\/p>\n

    \n

    The Speakers of\u00a0Session 1A<\/strong> were Mr. Justice K.R. Shriram<\/strong>\u00a0(Judge, High Court of Bombay),\u00a0Ms. Leigh-Ann Mulcahy KC<\/strong>\u00a0(Advocate & International Arbitrator, Fountain Court Chambers) and\u00a0Ms. Chiann Bao<\/strong> (Independent Arbitrator and Mediator) and the session was moderated by Ms. Radhika Dubey (Independent Counsel & Arbitrator).<\/p>\n

    Talking about his long association with DIAC, Justice Sanjiv Khanna<\/strong> said that he has seen DIAC growing in terms of number of cases.<\/p>\n

    Examining the figures regarding total number of matters referred to arbitration, Justice Khanna said that more than 1 lakh civil suits were instituted in subordinate courts, and 3964 suits were instituted in Delhi High Court, but barely 489 matters were referred to DIAC. Referring to the reasons why arbitration is not accepted as an alternative adjudication process, he mentioned Vidya Drolia v. Durga Trading Corpn., (2019) 20 SCC 406<\/a>, listing out some of the apprehensions of litigants for arbitration:<\/p>\n