AIJA Arbitration Conference:India

AIJA (Association Internationale des Jenues Avocats/International Association of Young Lawyers) was in India after a long gap of almost 2 decades for a conference. Last time it was there in 1988 & 1992. The conference which spanned for 2 days in Mumbai was on “International Business and Arbitration: Is India Still Different?” was attended by representatives of many national and international law firms and provided an apt platform for people to discuss the two most critical issues for the Indian judiciary and economy. The conference organized by the International Arbitration Commission of AIJA was divided into sessions with excellent speakers and experts as panelists. As the conference theme suggests, there was extensive discussion on Arbitration and Business scenario in India but this report would majorly cover sessions related to Arbitration.

Justice Dr. Dhananjay Chandrachud of Bombay High Court kicked off the first session on the “Role of Judiciary in India” giving a concise yet a very descriptive summary of the court system in India and attitude of the courts towards commercial matters. His discussion on difference between transgression of the courts in India in Human Rights related matter (which of course is much needed) and in commercial issues was very interesting. It was attention grabbing to know statistics from him where he did point out that though Saw Pipes case had diluted the public policy, the level of intervention of the courts in enforcement of arbitration related matters was very low. He pointed out in last 11 years of experience there has been only 2 or 3 awards that he himself has set aside out of 100 other cases that were brought forth and there has been strong effort by the judiciary to intervene only when there is utter need. Also, under Section 11 (Which talks about appointment of an arbitrator by the Chief Justice of High Court/Supreme Court) though the courts have held it to be a judicial and not an administrative function, the intervention has been extra ordinarily low. He stressed upon the need to appoint lawyers and experts as arbitrators instead of retired judges. According to him there is “A need to change the perception” that not always retired Judges make good arbitrators. He impressed upon the audience the growing relevance and success of mediation as an effective tool to resolve commercial disputes and termed it as very important for commercial matters. He was of the opinion that such alternative techniques in an organized and systematic manner is of relevance because most of the times the parties are not interested in creating some jurisprudence but wanting a decision. On issues of fraud he pointed that it can be arbitrated because it is different from a proper criminal proceeding and many times in civil suits too there are matters relating to frauds. According to him “If civil courts can deal with matters of fraud then why not arbitrators address it similarly”. If issues relating to fraud are not made arbitrable it may give rise to several allegations of fraud just to ouster arbitration and delay the procedure. Though later in the day Mr.Hiroo Advani, Partner at Advani and Co. in his presentation took the other side saying that issues involving fraud should not be arbitrated. On matters of online disputes and resolution Justice Chandrachud was of the view that it is evolving in India.

Ms. Zia Mody, Managing partner of AZB and Partners also present as a panelist iwas of the view that there was a certain amount of sophistication needed in the courts and they needed to evolve and come out of age. She promptly added that if she were to stand for a party trying to forcing arbitration, she would recommend the venue to be outside India as it moves much faster. Also she had concerns for India not having a fully dedicated arbitration Bar who would continuously sit for arbitration and not pursue it as a weekend pass time. Delay of enforcing award was another problem which she expressed was still a concern.

Mr.Girish Gokhale of Lafarge India was very vocal about arbitration being nothing but the starting point of any litigation in India. Comparing arbitration in India with usual Indian TV series which go on without end, he definitely made a strong remark with very humorous bent to it

Mr.Sumeet Kachwaha, Managing Partner of Kachwaha and Partner gave a very succinct descrption of India as an evolving jurisdiction with regard to enforcement of foreign awards. He was of the view that India cannot be particularly categorized as a friendly or unfriendly jurisdiction as there have been cases which prove each hypothesis. It was interesting to note from his presentation that till date there have 21 occasions of foreign awards to be enforced of which only 2 have not been enforced. To prove that India has always been pro-arbitration, he pointed out the fact that India has been amongst the first 10 countries to sign the New York Convention. It was the 4th country to ratify it on 13th of July, 1960. He expressed that though nothing has been really wrong with the legislatutre in drafting and enacting the Arbitration Act of India, maybe something went amiss while implementing it. He pointed that though Venture Capital case was soon about to celebrate its 3rd anniversary, it was sad to see that no particular over ruling has come into effect to that case.

There was a very interesting discussion on the Dallah case too by Ms. Frances van Eupen from Allen & Overy and though she pointed out the cautions that has to be taken by the courts she was of the view that the decision of the UK Supreme Court was fine in the light of the given facts and circumstances of the case.

The main motive of the conference was to assess the current situation and the most important recent developments to understand the arbitration scenario in India and to allow Indian and foreign arbitration practitioners to exchange views and experiences.