Arbitration Matters: A Conference by NPAC and SIAC.

The Nani Palkhivala Arbitration Centre (NPAC) and the Singapore International Arbitration Centre (SIAC) recently organized a conference: “Arbitration Matters” in Bangalore on 19 March 2011.

The conference was aimed to emphasize that Arbitration as a means to settle disputes does matter and not only should every business organization include a dispute resolution clause in their contracts, but make sure that it is properly phrased without any ambiguity.

The first session on “Why Every Indian Company Should Arbitrate” was chaired by Mr.Anirudh Wadhwa, advocate Supreme Court of India with eminent experts as panelists. It was interesting to hear about the “fee shifting clause” from Mr.Wadhwa. These kinds of clause usually come into play when there is a dispute between two parties (for example, a contract between an MNC and a SME) who are not equal to each other in economic terms. The speakers in this session included Mr. N L Rajah, Director, NPAC; Mr.Prakash Pillai, Partner, Rajah & Tann LLP; Mr. Rajinder Pillai, President-Legal, Jindal Southwest Holdings; and Mr.Tan Chuan Thye, Director, Stamford Law. Mr. Pillai emphasized the benefits of institutional arbitration when compared to adhoc arbitrations and courts. On a question raised about the scrutiny of the award, Mr.Pillai was of the opinion that it can’t really affect the award but is a method of pointing towards the errors in the award. Mr. Thye talked about IBA guidelines on taking evidence and also about the experts, their importance and their role when they are either party appointed or tribunal appointed. In his presentation he also referred to the new UNCITRAL Mediation Rules and the growing recognition of mediation as a mode of dispute resolution.

The second session on “The Application of ADR to financial and Intellectual Property Disputes” was chaired by Justice Jayasimha Babu and the panelists included Ms. Poornima Hatti of Narasappa, Doraswamy & Raja; Mr.Uday Holla, senior advocate, Holla and Holla advocates; Steven Cannon, Registered Foreign Lawyer, Eversheds, LLP, Singapore. Ms. Hatti threw light on the difficulty of arbitration in financial sector such as derivatives. Mr. Holla emphasized on the growing importance of IPRs and sighted interesting case laws.

The third session was on “Improving the effectiveness of Arbitration in infrastructure projects and Joint Ventures”. It was chaired by Ms. Jane Player, Partner, Bird & Bird LLP , UK. The panelists in this session were Mr. Vyapak Desai from Nishith Desai Associates; Mr.Shreyas Jayasimha, Partner, AZB & Partners; and Mr.Mohan Pillay , Jt.Head of Office, Pinsent Masons Mpillay, Singapore. Mr. Desai spoke on disputes relating to appointment of arbitrators, disputes relating to law, difference between substantive and procedural issues and the importance of seat of arbitration, Mr. Jayasimha candidly voiced that a lot of “homework” needs to be done by the lawyers in studying the arbitration rules and analyzing them with mushrooming of so many new arbitration centers. He too pointed the importance of wisely drafting an arbitration clause. He referred to the IBA guidelines on drafting of Arbitration clause which has recently been released

The fourth session on “Conflicts arising under employment contracts.- Is ADR the solution?” was chaired by Mr. P.B . Appiah and the panelists included Mr. James Hays, Partner at Sheppard Mullin; Michelle M. La Mar, Partner, Loeb & Loeb LLP; and Mr. S Suresh Partner, Civil & Commercial Litigation, Harry Elias Partnership. In the session it was discussed that though ADR methods may be successful but it is not fully suited to contracts related to employment.

The final session was a Best practice panel discussion on “Procedural simplicity / cost effectiveness In arbitration and the role of courts in arbitration and enforcement.” The session which was chaired by Talat Ansari, Partner, Kelley Drye &Warren LLP had Dr. Youseph Farah , Professor, University of Essex; Jayna Kothari ,Partner, Ashira Law, Steven Lim, Partner, Clyde & Co; and M. R. Prasanna , The Chambers as panelists. Ms. Jayna Kothari was very clear in pointing out that arbitration has become a new breed of litigation proceedings and has completely legalized. There is hardly any case management in ad-hoc arbitration where everything goes haywire. She discussed about the stumbling blocks of the arbitration which may be: who are the arbitrators, attitude of the counsels, and role of the courts. In context of courts, though minimum judicial intervention is envisaged under section 5, section 9 and 11 give easy way of intervention to courts. Steven Lim after discussing on similar lines sent a realistic and alarming picture of arbitration, that it has lost its way and has become way too costly and expensive.He advised to keep the arbitration clause simple and discussed a very interesting case of Singapore where the clause mandated arbitration under SIAC but with ICC rules. The SIAC rules were also discussed which talk about emergency arbitrators and which have been very efficient so far. Mr. Prasanna was the last speaker of the day and included a lot of anecdotes to end the session on a happy note. He talked about section 11 and advised not to rush to Section 9 in a hurried manner. His ever green parrot example was not to be missed. I shall refrain from disclosing the joke, it just might be a spoilsport if you are attending any of his lectures in future!

After a long day on arbitration where various new and imminent issues were intensely discussed, debated and criticized (well, criticism is but necessary if positive changes are to be seen fast!) the evening refreshments and cocktails at the lawn were a good idea to wind up the day. Indeed, Arbitration Matters!