Young Practitioners' Training Day on International Arbitration
Speakers:
Ms. Eva Kalnina (Senior Associate, Levy Kaufmann-Kohler, Geneva)
Mr. Ajay Thomas (Registrar, LCIA-India)
Mr. Promod Nair (Partner, JSA, Bangalore)
Ms. Ananya Aggarwal (Advocate, New Delhi)
Mr. Adrian Winstanley (Director General, LCIA London)
Mr. Dharmendra Rautray (Partner, Kachwaha & Partners, New Delhi)
Ms. Neeti Sachdeva (Senior Associate, ELP, Mumbai)
Mr. Shreyas Jayasimha (Partner, Aarns Law, Bangalore)
Professor Jan Paulsson (President, ICCA)
Mr. Gourab Banerji (Senior Advocate, Additional Solicitor General)
Ms. Zia Mody (Managing Partner, AZB & Partners, Mumbai)
Mr. Fali Nariman ( Senior Advocate, Honorary President, ICCA)
Mr.Justice Vikramjit Sen (Judge, Supreme Court of India)
Mr. Dushyant Dave (Senior Advocate)
Ms. Marike Paulsson (Founder, Young ICCA & Member, ICCA Judicial Committee)
(In order of appearance in the Seminar)
Post Event Report
By Ashutosh Ray
This report is a reflection on “Young Practitioners’ Training Day on International Arbitration”; a training symposium co-hosted by Young ICCA and LCIA-India in New Delhi on 22 November, 2013. The program had 8 sessions in total which aimed at giving an excellent insight to the participants into international commercial and investment arbitration.
The symposium began with a cheerful welcome address given by Ms. Eva Kalnina and Mr. Ajay Thomas followed by the first session titled “Introduction to International Arbitration”, presented by Mr.Promod Nair. Mr. Nair covered basic questions on arbitration including an understanding of international arbitration, sources of law for it and the key principles involved in it.
The session titled “International Arbitral Institutions and their Development in India” was presented by Ms. Ananya Aggarwal, Mr. Adrian Winstanley and Mr. Dharmendra Rautray. This session compared the advantages of institutional arbitration over ad-hoc arbitrations. The role of administering the arbitrations by the arbitral institutions was discussed quite elaborately as to how and in what ways arbitral institutions ensure smooth progression of cases from beginning to end. The role of important arbitral institutions such as LCIA, PCA, ICC and AAA were discussed in this context. While discussing the process of ad-hoc arbitration, advantages of UNCITRAL arbitration rules were discussed as to how it gives a ready-made set of well tested rules to be used by the tribunal and the parties. However, the absence of an institution overseeing the functioning of arbitration in ad-hoc arbitration was agreed by panel as the impeding void in proper operation of arbitration procedure.
The following session was on “Arbitration Agreement” and was presented by Ms. Neeti Sachdeva. She discussed in detail the issues involved in drafting an arbitration clause and which important factors should be kept in mind while drafting an arbitration clause in order to ensure that the arbitration agreement not only remains valid on the fruition of a dispute but that it also takes due effect. In addition to discussing the validity and effect of an arbitration agreement, Ms. Sachdeva also discussed the enforcement of arbitration agreement in the context of the New York Convention.
Mr. Shreyas Jaysimha led the next session on “Efficient Advocacy”. This session went beyond the theory of the subject and was received by participants with great interest. His presentation focused not only on oral advocacy but also a great deal on written advocacy.
Following a lunch break the fifth session on “Role of National Courts” was led by Professor Jan Paulsson and Mr.Gourab Banerji. The session discussed the role of courts at different stages of arbitration such as before the formation of the arbitral tribunal and during the arbitral proceedings. In this context, there was discussion also on the validity of arbitral awards and enforcement of awards under the New York Convention. Prof. Paulsson was of the opinion that the interference of the judiciary should be minimal even if it supports the whole mechanism of arbitration. He opined that in jurisdictions such as India where a matter in a court may take a considerable amount of time, it is in the best interest that courts restrain themselves from taking any such step which may delay the arbitration process, even if their intention is to finally give an order/judgment in favour of the arbitration procedure. He mentioned about the need of having special bench/judges to deal with matters relating to arbitration. He gave the example of Australia in this context. He appreciated the Swiss courts in their approach to expeditiously resolve matters relating to arbitration that reach them in a timely manner. Mr.Gourab Banerji discussed about a paper written by Prof. Jan Paulsson in 1992 titled “The New York Convention’s Misadventures in India”. While mooting the need for amending the Indian arbitration law, he discussed the departures that Indian law has made from the UNCITRAL Model Law. He discussed various case laws to effectively elucidate his arguments. This session had extensive discussion on challenge of arbitral awards where a comparison was drawn between UNCITRAL Model Law and the law on arbitration in India.
The sixth session was on “Arbitral Proceedings”. Ms.Zia Mody led the session with a discussion on the nitty-gritty of the procedural steps involved in arbitration. She explained the three important steps in the formation of a tribunal: that of selection, appointment and removal of arbitrators. Ms. Mody discussed at length how the efficiency of arbitral proceedings could be increased. At this juncture she posed the question of whether retired judges made better arbitrators. She discussed IBA Guidelines on Independence of Arbitrators and gave comments on the matter of “issue conflict” which arises out of the perceived mindset of an arbitrator through the articles written by him, his speeches as well as comments on certain issues. She also posed a question to the participants about how such an issue could be dealt with effectively.
The penultimate session was very interesting and gathered a lot of interest from the participants as it was on “Investment Arbitration”. The session was led by Mr. Fali Nariman and Ms. Eva Kalnina. The discussion encompassed the basics of investment arbitration and how disputes arise from Bilateral Investment Treaties (BIT). ICSID Rules as well as UNCITRAL Rules were discussed in order to give the participants a comparison between the two. The substantive and procedural protections were discusses as well as the investors’ obligations towards the host state under the BIT entered by the capital-exporting nation. The session shed some light on the public interest issues that are involved in investment treaty arbitration and sought to discuss a balanced approach to deal with it. The session included detailed discussion on India’s experience with investment arbitration which involved elaborate discussion on White Industries investment arbitration case.
The final session was chaired by Mr. Justice Vikramajit Sen and included a panel comprising Ms. Zia Mody, Mr. Dushyant Dave, Mr. Adrian Winstanley and Mr. Promod Nair. The discussion was on the prospects for the growth of arbitration in India. The panel discussed the idea of having specialised benches for international awards. Mr. Justice Vikaramji Sen remarked that older judges grew in the regime of the old law on arbitration but the younger judges were modern in their approach and were getting progressively better. Ms. Zia Mody and Mr. Promod Nair spoke on certain specific amendments that were needed in the Act. Advantages of introducing commercial courts and dedicated arbitration divisions were also contemplated. Delegation of S.11 power to arbitral institutions as has been done by Mauritius was advocated for by the panellists.
A “Q & A Session” led by Prof. Jan Paulsson was aptly placed towards the end giving participants a platform to ask questions and clarify doubts which they had on the subject. The Q & A session was followed by a “Special Address” where Prof. Paulsson expressed that every jurisdiction should aspire to become like Switzerland where arbitration as a mechanism works in the best possible manner.
Professor Marike Paulsson gave very encouraging “Concluding Remarks” and expressed her delight on the evolution of arbitration law in India. She enthused the participants to further research on the subject and foray into the practice of this field actively.
The eventful symposium came to a relaxing end with cocktails and dinner, giving the participants a chance to network and share light moments with each other as well as with Prof. Jan Paulsson and other Young ICCA representatives.
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Ashutosh Ray is a India qualified lawyer. He is currently assisting a former Chief Justice of India in high value international and domestic arbitrations, and opinions. He runs a popular arbitration blog Lex Arbitri which discusses on arbitration law issues.