Mr. Tejas Karia was invited to Jindal Global Law School to give a public lecture on the ‘future of arbitration in India’ on 28th March 2018. He is a specialist in IT laws, domestic arbitrations and international commercial arbitrations. Mr. Karia is presently a Partner and heads the arbitration practice at Shardul Amarchand Mangaldas & Co., one of India’s most prestigious law firms. He is a member of Bar Council of Gujarat and is additionally a solicitor in Law Society of England and Wales and a fellow of Chartered Institute of Arbitrators (CIArb).
Roles and expectations of Indian Arbitration Bar
Mr. Karia began the talk by stating the roles and expectations of Indian Arbitration Bar and how it can bring a change in the Indian scenario. He highlighted the importance of focusing on arbitration and specialising in it. The current situation is that lawyers are simultaneously taking up both court and arbitration cases. This results in arbitration proceedings being pushed to weekends and late evenings. This reduces lawyers’ commitment and priority to arbitration.
A number of other countries such as the United Kingdom, Singapore and France, have demarcated court and arbitration proceedings. They have specific arbitration institution such as the London Court of International Arbitration. These are separate from adjudicatory court proceedings, which results in the development of arbitration as a separate profession. India is the first country to incorporate the guidelines on conflict of interest in international arbitration framed by the International Bar Association (IBA) into the Indian Arbitration and Conciliation Act, 1996.
Stages of Arbitration
According to Mr. Karia, there are three stages of arbitration and each should be approached in a certain manner.
The first stage is regarding jurisdiction. It involves discussion around the underlying arbitration agreement in light of all the facts and allegations. An arbitrator must be impartial, fair and patient. Hence, it should be ascertained that the arbitrator does not have any biases. One should also check for disclosure requirements. The appointment of the arbitrator can be challenged under section 12 and 13 of the Arbitration and Conciliation Act, 1996.
The second stage involves facts or merits. This involves a focus on the key facts and providing an accurate and comprehensive record of the event. Relevant information to the case must be presented before the arbitrator in a concise manner.
The third stage is qualification. While being at this stage, one should avoid overstating damages and instead ask for reasonable relief to remain credible. The damages or relief must be backed up with full documentation.
Mr. Karia explained the essentials for an arbitral advocate. An advocate must understand their audience i.e. the arbitrator. Arbitrators come from various cultural, linguistic, legal and societal backgrounds. There are two types of arbitration: domestic and international. Thus, one needs to have a thorough knowledge of the law and jurisdiction governing the contract in question especially in cases of international arbitrations.
Another necessity is effective communication, which includes both oral and written pleadings. Communications should be accurate and concise to convey the message to a diverse panel of arbitrators. The arguments should be simple and well structured so that they are easily remembered. An arbitrator must not be coerced into deciding in one’s favour. In arbitrations, parties may make use of audio-visual aids to present the facts in a first-hand experience to the arbitrator.
The starting point of the strategy for any arbitration is to identify three things: the choice of law, the choice of language and the seat of arbitration. The most important point is to play on the strengths of one’s case and highlight the merit of one’s own argument while undermining the weak points of the opposition.
It is vital to know where the onus of proof lies and effectively give evidence to prove one’s own side. Construing the relationship between the parties is important. Intentions of both parties determine whether they wish to maintain the relationship with each other. This constitutes how arguments would be directed and how reaching the settlement would be focussed on.
Witnesses’ testimonies form an integral part of the evidence. The provisions of the Indian Evidence Act, 1872 are not applicable to arbitration. Unlike, in courts, it is not important to give a witness sheet but each side should announce how many witnesses they have.
Arbitration divides its witnesses into two categories – witnesses of fact and the expert witnesses. Expert witnesses have specialised knowledge or skills in a field equivalent to those described in the Indian Evidence Act. An arbitration tribunal may appoint an expert witness. Witnesses of fact state information and have personal knowledge of events pertaining to the case.
Ethics and best practices
Arbitrations, like any process, require certain practices to be followed. Any counsel making a case must incorporate three basic elements into his case: the credibility of his argument, logical consistency and the correct application of facts and the law. Furthermore, each case requires a specific tailor-made strategy as the facts and the parties vary from case to case.
The IBA has published a document called the International Code of Ethics, which prescribes certain ethics counsels follow. According to the IBA, counsels must preserve independence from clients and maintain the dignity of the profession by upholding integrity.
Confidentiality must be maintained in respect to all the facts of the case including parties to the case, the proceedings and the arbitral award. A lawyer should never consent to handle a case unless the client gives instructions directly or in any other permissible manner. Counsels must handle cases in a timely manner and render legal assistance with reasonable care and diligence. Lastly, counsels must never represent conflicting interests in an arbitral proceeding without the prior consent of the clients.
Mr. Karia advised the students to get involved in arbitration at an early age of law school by seeking memberships in the youth forums of arbitration institutions such as the London Court of International Arbitration (LCIA), International Chambers of Commerce (ICC), Mumbai Centre for International Arbitration (MCIA) and student membership of Chartered Institute of Arbitrators (CIArb). These institutions host events and provide training to members. Moreover, most of the programmes offered by these institutes are free for law students.
After the conclusion of the lecture, Professor Suvrajyoti Gupta, Assistant Professor, JGLS and Assistant Director, Centre for Alternative Dispute Resolution gave a vote of thanks. Thereafter, the floor was opened for questions.
The enthusiastic students of Jindal Global Law School put up a number of questions for Mr. Karia. Swaraj Gupta, a third-year law student at JGLS questioned him about the lack of focus on domestic arbitration and why international arbitrations are emphasised upon. To this, Mr. Karia replied that the procedure and process of domestic and international arbitrations should ideally be the same. In India, this has unfortunately not been the case and domestic arbitrations need to rise to the level of the international arbitrations by once again emphasising on the arbitration system and having separate lawyers for arbitration than court lawyers.
A final year law student raised an important question about whether or not it is necessary for an arbitration to be completely documented and recorded. Mr. Karia replied that normally tribunals decide in the beginning of the proceeding. Documentation is a generally accepted practice but not compulsory.
First-year law student Priya Maharishi asked Mr. Karia about the representation of women and their prospect in the field of arbitration. Courts have a large number of men working as lawyers and judges but not women. Mr. Karia stated that arbitration is a potential prospect for women.
[This report was prepared by Divyansh Saluja, Farhan Zia and Namrata Kukreja, law students at Jindal Global Law School, Sonipat]
For further reading –