12 October 2017
SIAC India Conference 2017: Crystal Ball Gazing into the Future of International Arbitration in India

By Aditya Vikram and Karan Dev Chopra, Senior Associates, Luthra & Luthra Law Offices

The SIAC India Conference 2017 was well received by the Indian legal and business community with 190 delegates in attendance. The audience comprised eminent lawyers and other professionals from reputable organisations, who were enthusiastic to learn more about managing arbitrations in light of the changes to the arbitration regime in India.

The conference commenced with a welcome address by Ms Lim Seok Hui (CEO, SIAC), where the theme of the conference and the efficacies of the SIAC arbitration procedures were discussed against the backdrop of India’s move towards global standards of institutional arbitration, and the recent pro-arbitration judgments being delivered by India’s Courts.

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

Members of the audience

Ms Indranee Rajah, SC (Senior Minister of State, Ministry of Law and Ministry of Finance) delivered the special address and stressed that with the growth of cross-border transactions and cross-border disputes, there needed to be effective arbitral institutions to meet the demand for dispute resolution services. According to Ms Rajah, with the recent legislative amendments, the future of arbitration in India was bright, like a crisp summer day that the month of April promises.

The keynote address delivered by Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP) was one of the highlights of the day. Mr Born shared his thoughts on the future of arbitration in India by first discussing the “enemies” of arbitration. Borrowing an analogy from the Game of Thrones, Mr Born stated that the enemy was just beyond the wall and cautioned that “winter is coming”. Mr Born stated that the enemies of arbitration were its harsh critics who constantly endeavored to critique the failings of the arbitral system, such as the bias of some arbitrators, and the lack of appellate review. Defending the arbitral system, Mr Born described the right to arbitrate as akin to a fundamental right. The only way forward was to “defeat” the enemy and turn the tables on them in order to protect the arbitral system, which has been the business community’s preferred way to resolve disputes. Referring to the increased powers of arbitral tribunals and the ever-growing caseloads at arbitral institutions, Mr Born was of the opinion that the future of arbitration is and had to be bright.

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Keynote Address delivered by Gary Born

Left to Right: Ms Indranee Rajah, SC, Senior Minister of State, Ministry of Law and Ministry of Finance
and Gary Born

The first panel discussion on “Successfully Managing SIAC Arbitrations Under the New Indian Regime” comprised Mr Gary Born, Ms Elodie Dulac (Partner, King & Spalding), Mr Manish Lamba (General Counsel, Bharti Realty Limited), Mr Ng Kim Beng (Partner, Rajah & Tann Singapore LLP), Mr S. Ravi Shankar (Senior Partner, Law Senate) and Mr Kabir Singh (Member, YSIAC Committee; Partner, Clifford Chance). The discussion was moderated by Mr Steven Lim (Partner, CMS) and some of the topics discussed were the strategies involved in effectively managing arbitrations, the importance of choosing the right arbitrator or arbitral tribunal under the new Indian legislative regime, the freshly minted SIAC Rules 2016 and the improved Emergency Arbitrator and Expedited Procedure provisions under those rules.

In the course of the discussions, Mr Lamba shed light on the important role of in-house counsel in the arbitral process before the commencement of arbitration, such as in drafting an arbitration clause, choosing the substantive law, and taking into account the nuances of different procedural laws. Mr Lamba also stressed that once a dispute has arisen, a cost-benefit analysis should be undertaken to mitigate risks before commencing arbitration proceedings. Mr Born stressed the need to fully comprehend the factual record of the case at hand and rule out any other alternate dispute resolution mechanisms before moving towards arbitration. Mr Singh discussed about what he coined as “a Human Tribunal” and stated that the right tribunal could make or break a case. Highlighting the inclusion of disclosure requirements for arbitrators in section 12(5) of the 2015 Indian Arbitration Amendment Act, Mr Singh explained that this was a positive development for arbitration in India.

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Panellists of Panel Session I

Left to Right: Gary Born, Elodie Dulac, Manish Lamba, Steven Lim, Ng Kim Beng, Kabir Singh and
S. Ravi Shankar

The discussions turned to focus on the SIAC Rules 2016 and it was pointed out by Mr Ng that party autonomy was given increased importance, and rightly so under the new rules. The usefulness and necessity of emergency arbitrator provisions, and the enforceability of emergency arbitrator awards under the New York Convention, were discussed. It was also highlighted that 70% of emergency arbitrator awards were complied with voluntarily by parties without the need for enforcement proceedings. The discussion also shed light on various positive legislative amendments that India had introduced to align itself with global standards of arbitration, but this begged the question as to whether the existing legislative amendments were sufficient or if further amendments were necessary to meet international best practices in arbitration.

The topic for the second panel discussion, “The Changed Face of Arbitration in India: Story so Far”, was a widely debated topic, especially amongst the legal fraternity in Southeast Asia. The eminent panel comprised Mr Bhaskar Chandran (Group President, Legal, GMR Group), Mr Tejas Karia (Partner, Shardul Amarchand Mangaldas & Co), Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers), Mr Lomesh Kiran Nidumuri (Partner, IndusLaw), Mr Prakash Pillai (Partner, Clyde & Co Clasis Singapore) and Mr Naresh Thacker (Partner, Economic Laws Practice), with the discussion being moderated by Mr Moazzam Khan (Member, YSIAC Committee; Co-Head, International Disputes Practice, Nishith Desai Associates). The panellists also discussed various aspects of the Indian Arbitration Amendment Act, especially the requirements of Section 29A, which requires that all Indian arbitrations must be completed within 1 year (or 18 months with parties’ agreement) of the constitution of the arbitral tribunal.

While appreciating and recognising the legislative intention behind Section 29A, the panellists unanimously shared the concern that the timeline to conclude an arbitration should not be rigidly imposed as a one-size-fits-all approach may not be a pragmatic approach, especially in respect of complex arbitrations. The panellists noted that the concept of “delay” had percolated into the dispute resolution culture in India, and were hopeful and confident for change over the next few years. The panellists were also of the view that courts in India should not infringe on party autonomy. The discussion also centered around the growth of arbitration infrastructure in India, and issues relating to transparency, lack of bias, rationality, streamlining of the commercial judicial courts and enforcement.

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Panellists of Session II

Left to Right: Bhaskar Chandran, Tejas Karia, Toby Landau QC, Moazzam Khan, Lomesh Kiran Nidumuri, Prakash Pillai and Naresh Thacker

The discussions came to a close with both the panellists and audience recognising that the 2015 Indian Arbitration Amendment Act reflected a positive change of mindset regarding arbitration in India, and was a step in the right direction for a better, brighter and prosperous era of arbitration in India.

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Left to Right: Gary Born, Toby Landau QC, Lalit Bhasin, Rajiv K. Luthra, Ms Indranee Rajah, SC, Senior Minister of State, Ministry of Law and Ministry of Finance,
Lim Seok Hui, Singapore’s High Commissioner to India Mr Lim Thuan Kuan, Kevin Nash, Pranav Mago and Naresh Thacker

Rajiv K. Luthra and members of the audience

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