12 October 2017
SIAC Hard Talk 2017

By Abhishek Gupta, Associate, Luthra & Luthra Law Offices

The SIAC Hard Talk 2017 attracted approximately 170 attendees, comprising practising lawyers, in-house counsel and academics.

The event kicked off with a welcome address by Mr Rajiv K. Luthra (Member, SIAC Board of Directors; Founder and Managing Director, Luthra & Luthra Law Offices), who spoke on the need to improve the arbitration infrastructure in India, the pendency of cases in the Indian Courts and the resultant delay in the enforcement of contracts and arbitral awards.

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Welcome Address delivered by Rajiv K. Luthra

Opening Address delivered by Ms Indranee Rajah, SC, Senior Minister of State, Ministry of Law and Ministry of Finance

Ms Indranee Rajah, SC (Senior Minister of State, Ministry of Law and Ministry of Finance) delivered the opening address and commented on the growing contribution of Asian countries to the development of international dispute resolution and the concomitant opportunities. She observed that the increase in commercial activity across nations had led to an increase in cross-border disputes, in turn increasing the demand for cross-border arbitration, and eventually resulting in the rise in supply of arbitral services and international arbitral institutions to meet this demand. The dilemma of technological advancements was also expounded on by Ms Rajah. On one hand, artificial intelligence (AI) has resulted in increased efficiency in the conduct of arbitral proceedings, but on the other, it has also given rise to AI products such as, Lex Machina and Premonition Legal Analytics, which have the potential of reducing the need for lawyers in certain tasks. She concluded her speech by highlighting the accomplishments of SIAC in being the first Asian arbitral institution to introduce emergency arbitrator provisions and the release of the SIAC Investment Arbitration Rules.

The special address was delivered by Hon’ble Mr Justice Dipak Misra (Chief Justice of India), who firmly dispelled any fears of an approaching winter for arbitration. He gave due credit to the Indian Government in making India an ‘arbitration-friendly and attractive’ destination, exemplified by the latest 2015 Amendment to the Arbitration & Conciliation Act, 1996 (the Act). Justice Misra, inter alia, cited a few amendments from the Amendment Act of 2015, which were aimed at reducing the delay in adjudication of arbitral disputes, and ensuring affordable and cost-effective arbitration. These amendments include:

• Specified timelines of 1 year extendable by 6 months under Section 29A of the Act;
• Legislative bonus to the arbitrators for expeditious disposal of matters under Section 29A of the Act;
• Fast track procedure under Section 29B of the Act;
• Ensuring ethical conduct and morality of the Arbitrators through the Eligibility conditions under Schedule V and VII of the Act;
• No automatic stay on arbitral award under Section 36 read with Section 34 of the Act;
• Cap on the arbitrator’s fees; and
• Crystallisation of the amorphous concept of public policy.

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Arrival of Hon’ble Justice Dipak Misra, Chief Justice of India

Special Address delivered by Hon’ble Justice Dipak Misra, Chief Justice of India

The role of lawyers and practitioners in promoting and encouraging the amicable settlement of disputes under Section 30 of the Act was also highlighted by Justice Misra. He concluded the speech and set the ball rolling for the Hard Talk Session with his view that, “Arbitration can never get into winter; it is always in the midst of summer”.

The topic for the panel discussion centred on the statement made by Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), about the future of international arbitration, drawing inspiration from the TV Series “Game of Thrones”.

Ms Rohini Roy (Chief, International Legal Operations, Bharat Heavy Electricals Limited) conceded that winter was inevitable, but adequate preparation during the summers could make it cozy and comfortable. There would be no winter or summer or seasons if there were no disputes. Mr Christopher Lau, SC (Chartered Arbitrator, 3 Verulam Buildings) agreed with Mr Born’s statements while Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) elucidated on the distinction between investor-state arbitration (ISA) and international commercial arbitration (ICA) and explained that there existed a thin line between the two, which must be recognised and appreciated. He further felt that ISA had gained a bad reputation of safeguarding the interests of multinational corporations over States, and that the controversies surrounding ISA have had a negative impact on ICA. Mr Vikram Nankani, SC (Bombay High Court) also commented that during the Transatlantic Trade and Investment Partnership (the Treaty), some stakeholders were not agreeable to have an arbitration clause in the Treaty. Ms Roy shared that some Public Sector Undertakings in India (NTPC Limited, for instance) have stopped including an arbitration clause in agreements and contracts, owing to growing mistrust of the arbitration regime, the rising costs of arbitration and the perceived diminishing utility of an arbitration. Whilst winter for international arbitration may indeed be near, when it comes, Mr Landau commented that this might cause the necessary improvements in the arbitral process to take place.

Mr Darius J. Khambata, SC (Member, SIAC Court of Arbitration) reflected on India’s increasing receptiveness towards arbitration and its recognition of the importance of upholding foreign awards. Recalling a remark from Lord Justice Thomas of England, who had once stated that common law would cease to develop because of arbitration, Mr Khambata shared that the same view was also echoed in India a few years ago, when it was felt that greater judicial interference in arbitral awards was needed to develop the common law in India. To rebuild trust in the arbitral system, Mr Khambata suggested that publication of arbitral awards might be the way to go. While it was ultimately a matter of parties’ discretion and the institutional rules governing arbitration, publication of awards would go a long way in reducing some of the concerns faced by parties, reinforce the trust in the arbitral proceedings, set precedents and improve judicial reasoning.

Mr Born concluded the discussion and highlighted that ICA is a public-private partnership between courts, the legislature and arbitrators, and the imminent winters could only be overcome by international cooperation of all stakeholders.

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Left to Right: Gary Born, Darius J. Khambata, SC,
Toby Landau QC, Vikram Nankani, SC,
Christopher Lau, SC and Rohini Roy

Left to Right: Gary Born and Darius J. Khambata, SC

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Members of the audience

Left to Right: Pranav Mago, Gary Born, Darius J. Khambata, SC, Toby Landau QC, Rohini Roy,
Vikram Nankani, SC and Christopher Lau, SC

Please click here to view the SIAC Hard Talk 2017.

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