India Alternative Dispute Resolution Week 2024: A Transformative Initiative

The Mumbai Centre for International Arbitration (MCIA) proudly heralded the India Alternative Dispute Resolution Week 2024 (IAW 2024) from September 23 to 28, 2024. This transformative initiative aimed to unite distinguished practitioners to discuss Alternative Dispute Resolution (ADR) across three key jurisdictions: Bengaluru, Mumbai, and Delhi. With a commitment to promoting arbitration and alternative dispute resolution both within India and internationally, MCIA aspires to establish India as a preferred destination for arbitration.

Kicking off in Bengaluru on September 23, IAW 2024 featured an array of intense discussions and collaborative sessions among legal professionals, scholars, and industry leaders. The week commenced with a robust agenda, setting the stage for high-level dialogues on contemporary issues in arbitration. Participants engaged in insightful conversations covering shareholder disputes, the future of Artificial Intelligence (AI) and Online Dispute Resolution (ODR), and the evolving role of technology in ADR processes.

As the initiative moved to Mumbai, it hosted an expert panel discussion that delved deeper into the complexities of arbitration and ADR. Distinguished speakers shared their perspectives on the pressing challenges and opportunities within the sector.

Session 1: “Beyond Boundaries: Rethinking Arbitration and Mediation as Complementary Processes”

The first session, expertly moderated by Mr. Raj Panchmatia, Partner at Khaitan & Co., explored innovative approaches to integrating arbitration and mediation to enhance dispute resolution strategies. Mr. Panchmatia began the session with a profound statement: “Many now believe disputes can often be resolved before resorting to full-fledged litigation. In today’s environment, where corporate commercial transactions and cross-border dealings occur daily, discovering alternative methods of dispute resolution is crucial.”

He posed a thought-provoking question to Mr. Kushal Gandhi, Partner at CMS Cameron McKenna Nabarro Olswang LLP, regarding the distinction between arbitration and mediation. Mr. Gandhi asserted, “Mediation is not a process in itself; rather, it is a tool that can be applied throughout the entire spectrum of dispute resolution. Arbitration and litigation are distinct processes for resolving disputes, while mediation can complement both.” He elaborated further, explaining, “Mediation is a powerful problem-solving tool. Unlike arbitration, where outcomes are dictated by the tribunal or judge, mediation offers the flexibility to reach a commercial solution.”

The discourse continued with Mr. Gopal Menghani, General Counsel of Mahindra Holidays and Resorts India Limited, who emphasized that the primary goal of any General Counsel is to find a resolution. He stated, Before even considering mediation, significant effort goes into communicating with the other party to identify common issues that can be resolved. He highlighted the importance of open communication, noting, If both parties maintain open communication, they are more likely to pursue mediation followed by arbitration.

Ms. Jyoti Kapadia Maheshwari, Group General Counsel and Vice President at Hitachi Payment Services Pvt Ltd., responded to Mr. Panchmatia's inquiry regarding suitable cases for Arb-Med-Arb or Med-Arb-Med processes. She cautioned against misuse of the process, stating, “Mediation should only be pursued when both parties genuinely want to reach a consensus.” She further elaborated that while Arb-Med could be advantageous, introducing mediation after an award could undermine the arbitration process, stating, “The arbitrator dedicates considerable time and effort to deliver a binding decision, and incorporating mediation at this stage may compromise the integrity of that process.”

Mr. Chakrapani Misra, Partner at Khaitan & Co., illustrated the strategic advantages of proposing mediation over arbitration. He recounted a case where, initially, both parties rejected mediation, but after gaining clarity on their positions, they became willing to engage in mediation, leading to a successful settlement. He asserted, the decision to propose mediation over arbitration largely depends on the posturing of the clients involved.

Mr. Panchmatia then questioned Mr. Gandhi about when he would recommend pursuing mediation. Mr. Gandhi emphasized the need to manage emotions during disputes, stating, If you suggest settling the matter, clients may perceive you as not prepared to fight for them. He accentuated that the timing and appropriateness of mediation depend significantly on how emotions are managed throughout the process.

As the discussion continued, Ms. Maheshwari addressed the issue of guerrilla tactics in mediation, explaining that parties may use delay tactics to hinder the process. “When the parties are on deliberation, they delay in providing certain documentation. They would go back to their Boards to discuss this,” she elaborated.

In closing, Mr. Panchmatia thanked the panel for sharing their valuable insights, highlighting the importance of communication and collaboration in dispute resolution.

Session 2: “What Experts Think of Lawyers (and Vice-Versa)”

The second session offered a fascinating exploration of the perceptions and experiences of experts and lawyers regarding each other. Moderated by Mr.Nishant Nath Singh from Stewarts Law in London, the session featured esteemed speakers, including Amit Garg from the Secretariat in Singapore, Nitesh Jain from Trilegal in India, Jed Savager from Pinsent Masons in Dubai, Kelvin Poon SC from Rajah & Tann in Singapore, and Sanjeev Gemawat, Managing Director and Group General Counsel at Essar Group.

Mr. Nishant opened the session with introductory remarks from Ms. Rhia Marshall, a distinguished partner at Jerome Merchant & Partners. She noted that the use of expert testimony in arbitration in India is still developing, stating, “When we, as lawyers, propose the appointment of independent experts, clients question its necessity.” However, she affirmed that the practice is gaining momentum, highlighting the significant benefits experts bring to arbitration.

The discussion then shifted to the optimal timing for engaging expert witnesses. Mr. Nitesh Jain stressed the importance of early engagement, advising that experts should be brought on board as soon as legal notices start arriving. Waiting until all pleadings are finalized is not advisable; doing so could lead to a mismatch between the expert’s opinions and the cases you’ve already presented, he explained.

Mr. Amit Garg echoed this sentiment, noting, The earlier you engage an expert, the better. He emphasized that early involvement could provide invaluable guidance to clients and solicitors alike. By engaging an expert at that early stage, they could direct their focus effectively, he added.

Agreeing with all of that, Mr. Jed Savager, based on his experience, shared that many parties in the Middle East often perceive the notice of arbitration as a catalyst for initiating settlement discussions. They frequently submit requests for arbitration with the hope that this action will alter the negotiation landscape. However, he cautioned that it can sometimes produce the opposite effect, indicating a lack of thorough understanding of their disputes.

He emphasised that involving experts prior to issuing a notice of arbitration is essential, especially given the potential for jurisdictional challenges.

Mr. Kelvin Poon also concurred that it is important to engage suitable experts early in the process. However, he differentiated between consulting experts and testifying experts. He recommended that it is prudent to involve a consulting expert as soon as possible to guide your case.

Mr. Sanjeev Gemawat highlighted the complexity of litigation, emphasizing the need for a collaborative approach that includes both internal and external experts. He stated, without an expert, you risk faltering and potentially losing your case. He also mentioned that discussions about engaging experts should begin informally before filing a claim, allowing for strategic refinement.

Keynote Address- Justice Manish Pitale

The session continued with an energetic exchange of ideas, culminating in a keynote address by Justice Manish Pitale of the Bombay High Court. He stressed the need to view arbitration as a dedicated endeavour rather than a post-court activity, stating, “We now have a dedicated arbitration bar led by Gourab Banerji, which marks a positive development.” Justice Pitale expressed his preference for Med-Arb, emphasizing that mediation should be the starting point for dispute resolution. He concluded by affirming that ADR Weeks like IAW 2024 would significantly impact the future of dispute resolution in India.

In conclusion, he stated that ADR Weeks like these will have a significant impact.

Thereupon, Mr. Raj Panchmatia delivered the vote of thanks.

Session 3: “The Big Business of Sport — Why Arbitrate?

The final session, moderated by Ms. Mythily Katsaris, Partner at Fladgate LLP, explored the burgeoning role of arbitration in the sports industry. Ms. Katsaris referenced the timely adjudication of sports disputes, citing Vinesh Phogat’s proceedings during the recent 2024 Olympics as a prime example of arbitration’s efficiency.

Mr. Dinesh Pednekar, Partner at Economic Laws Practice, highlighted the significance of arbitration in sports, stressing its role in ensuring swift resolution of disputes. He threw his weight behind arbitration as an effective mechanism for resolving conflicts, emphasizing that, in a sector driven by competitiveness, speed is essential. Referencing the case of Indian wrestler Vinesh Phogat, he corroborated Ms. Katsaris’s view that arbitration can offer timely and reliable outcomes. The decision was rendered within days,he noted and acceptance of the same by Ms. Phogat was a testament to the 'trust' placed in decisions rendered by the Court of Arbitration for Sports (CAS)." 

However, Mr. Pednekar pointed out a troubling trend. He observed that not all Indian athletes are able to avail themselves of the services of CAS due to a lack of awareness amongst them, and because CAS arbitration is not as cost-effective for them. Courts, he continued, often fall short in such matters, as they are already overburdened and typically lack the specialized expertise required for adjudicating sports-related disputes effectively. "Moreover," he added, "the disputes around doping are outside the jurisdiction of Courts and hence, they are adjudicated before specialized institutions like CAS."

Adding to this perspective, Mr. Mark Buckley, Partner at Fladgate LLP, brought up an interesting observation about the limits of CAS's reach. He noted that there are some high-profile sports, such as Formula One and Premier League Football, that choose not to take disputes before CAS. This raises thought-provoking questions about the future of arbitration in certain high-stakes sports environments.

After this compelling dialogue, the conference proceeded to Session 4 a rigorous debate on an equally complex topic: 

Whether courts should be empowered to modify arbitral awards under the Arbitration Act. 

The debate, moderated by Ms. Bindi Dave, Co-Managing Partner at Wadia Ghandy & Co., featured notable speakers such as Senior Counsel Zal Andhyarujina, General Counsel Sarita Kamath of TATA Capital, Senior Counsel Sharan Jagtiani, and Deepak Chauhan, Director and General Counsel at Welspun Group. The speakers offered varied perspectives on whether judicial interference could enhance or undermine the autonomy of arbitral processes, making for a spirited discussion that kept the audience deeply engaged.

Following this debate, the conference segued into -

Session 5, titled "Experts as Arbitrators or Arbitrator-Appointed Experts?" 

Moderated by Senior Advocate Janak Dwarkadas, the session brought together an illustrious panel: Justice (Retd.) R.D. Dhanuka, Former Chief Justice of the High Court of Bombay; Hiroo Advani, Senior Partner at Bharucha & Partners; Montek Mayal, Partner and Practice Head for Asia & the Middle East at Osborne Partners; Kirtan Prasad, Senior Counsel at RPC; and Hannah Fry, Barrister at 39 Essex Chambers.

Mr. Dwarkadas initiated the conversation with a pivotal question to Justice Dhanuka: "When we talk about tribunal-appointed experts, how do you see this as different from the practice of party-appointed experts?" 

Justice Dhanuka first clarified an important distinction, explaining that while a sitting judge actively presides over cases with full judicial authority, a retired judge no longer holds such power but may still significantly contribute through advisory or alternative dispute resolution roles. "This distinction," he emphasized, "is crucial in understanding their respective functions within the judiciary."

Addressing the original question, Justice Dhanuka elaborated that parties often opt to appoint their own experts, especially at various stages of drafting agreements—whether in construction contracts, partnership disputes, or property valuations. Such expert assistance is also sought when drafting pleadings before arbitration, ensuring that all complexities are managed effectively.

Mr. Dwarkadas next posed a critical question to Mr. Hiroo Advani regarding the appointment of experts as arbitrators: "In your opinion, do you think experts should be appointed as arbitrators? What do you see as the advantages or disadvantages of such an approach?"

Mr. Advani articulated his concerns with clarity. An expert might assume they know more than others and may rely heavily on their own opinions rather than considering other perspectives, he noted. Furthermore, he expressed unease over a recent proposal in the Supreme Court of India advocating for public sector undertakings (PSUs) to maintain a panel of arbitrators, mainly composed of retired government officials. He argued that this undermines the parties' autonomy and could result in biased decisions favoring the government. While Advani acknowledged the valuable role that experts play in arbitration, he firmly opposed appointing them as arbitrators because of these inherent risks.

Expanding on these views, Mr. Montek Mayal highlighted that while there are valid concerns about experts as arbitrators, certain cases do necessitate their specialized knowledge. Not every arbitration requires an expert arbitrator, he remarked, but in matters like construction disputes or complex valuation issues, having an expert arbitrator can significantly streamline proceedings.

Mr. Dwarkadas then invited Mr. Kirtan Prasad to share his perspective on the appropriateness of expert arbitrators in different cases. Prasad agreed with previous speakers, adding that specific sectors, such as stock exchanges, construction, and commodities, could derive immense benefit from expert arbitrators. He observed that in highly technical disputes, appointing an expert arbitrator allows the focus to remain on core issues, facilitating an efficient resolution. In that instance, the expert's ability to streamline the process and focus on the essential submissions from each party leads to an efficient resolution.

Turning to Ms.Hannah Fry, Mr. Dwarkadas sought her opinion on whether party-appointed experts or tribunal-appointed experts make for a more effective arbitration process. Fry, drawing on her experience, observed that her role often involves translating complex information between experts and arbitrators, reflecting the growing importance of expert evidence in arbitration. Expert involvement has become the norm, particularly in technical and high-value cases, citing a 2021 BCLP International Arbitration survey, which found that 96% of respondents felt entitled to party-nominated experts. While she acknowledged that party-appointed experts were common, tribunal-appointed experts remain relatively rare, especially within the Commonwealth and English legal systems, where parties often prefer more control through party-nominated experts.

Keynote address - Justice Somasekhar Sundaresan 

The day's proceedings culminated with a keynote address by Justice Somasekhar Sundaresan of the Bombay High Court, who delivered a thought-provoking speech on the evolving role of arbitration in today’s legal framework. Justice Sundaresan stressed the critical need for arbitrators to earn the trust of the parties they serve, warning against complacency in maintaining arbitration's credibility. He posed a profound question to the Arbitration Bar: "Do you truly command respect and choice from the market, or are you merely filling available roles?" Drawing comparisons with regulated professions like law and accountancy, he called for the arbitration community to consider implementing self-regulation to build confidence among disputants.

Justice Sundaresan also highlighted the importance of establishing a regulatory framework that instills confidence in arbitration as an effective dispute resolution forum. He cautioned against the practice of treating arbitration as a "weekend bar," where practitioners engage in arbitration only part-time, diluting its quality and credibility. Notably, he expressed concern over a discernible trend in which corporations were increasingly moving away from arbitration in favor of simpler, more predictable legal processes. He advocated for a comprehensive examination of this trend, urging stakeholders to devise strategies that reinforce the value of arbitration as an effective, efficient, and credible mechanism for resolving disputes.

In concluding the day's events, Mr. Nish Shetty, Co-Chair of the MCIA Council, expressed heartfelt gratitude to all participants, speakers, and attendees for their invaluable contributions. He remarked that the insights shared throughout the event left a lasting impression on the future of arbitration, particularly in the realm of sports, and beyond.