IAW 2023

2023 India ADR Week Recap: achieving efficiencies in Indian arbitration

Matthew Brown (Clifford Chance), Ritika Bansal (Nishith Desai)

India ADR Week 2023 (IAW) was hosted by the Mumbai Centre for International Arbitration (MCIA) across three cities – Bengaluru, Delhi and Mumbai. Gathering over 700 attendees from a cross-section of the arbitration community, IAW featured more than 40 events over six days in a series of in person and virtual panels. The discussions covered hot topics in international arbitration and considered how global trends and best practices may apply in the Indian context.

In this post, we focus on a selection of IAW panels which considered tools for achieving efficiencies and better outcomes in arbitral proceedings. The panels discussed a range of procedural and practical mechanisms which Indian arbitration can exploit to increase its attractiveness as a dispute resolution forum for commercial parties while also relieving pressure on the overburdened Indian court system.

In a wide-ranging session on "Efficient management of arbitration proceedings" (Mumbai) (moderated by Abhileen Chaturvedi, Cyril Amarchand Mangaldas), the panel exchanged their experiences of practices which facilitate the efficient conduct of arbitration. Mr Abhijit Shinde (Welspun) discussed the well-recited inefficiencies in ad hoc arbitrations in India and explained that the choice of institutional arbitration at a neutral seat can attract investor participation. Niraj Modha (Barrister, 39 Essex Chambers) stressed the benefits of the increased professionalisation in arbitration and explained how institutional rules provide a framework for arbitrators to adopt more robust case management procedures. Baiju Vasani (Barrister, Twenty Essex) explained that early dismissal mechanisms now common in institutional rules can be a valuable tool to weed out unmeritorious claims, as long as due process is observed. Patrick Taylor (Partner, Debevoise) focussed on the benefits of bifurcation in cases where determining certain issues will resolve or simplify the overall case. Arvin Manoosegaran (Omni Bridgeway) explained how third-party funders also benefit from procedural efficiencies, given the importance of recovering payment in a reasonable timeframe. The panel also shared their views on guerrilla tactics, including "sandbagging" or the practice of introducing new witnesses and arguments in reply memorials, excessive requests for disclosure and frivolous allegations of dishonesty against opposing counsel and parties.

In a session on "Managing Expert Evidence in International Arbitration" (Mumbai) (moderated by Ishani Vora, FTI Consulting), the panel considered how engaging expert witnesses can enhance the quality of decision-making in the arbitral process. Neeti Sachdeva (Registrar, MCIA) remarked that while the use of experts in Indian arbitration proceedings is still relatively low, parties are increasingly recognising the value of consulting experts at an earlier stage in the proceedings. Ben Giaretta (Partner, Fox Williams) explained how good experts function as educators and communicators and must be able to convey complex issues in simple terms. Vikas Mahendra (Partner, Keystone Partners) stressed that the most credible expert reports are concise, but supported with robust data and sources. Shreya Jain (Principal Associate, Shardul Amarchand Mangaldas) explained the benefits of streamlining expert evidence by identifying the scope of issues, along with areas of agreement and disagreement, at an early stage. The panel agreed that notable efficiencies can be achieved through expert- conferencing, a procedural device not commonly used in India. The panel shared mixed experiences with Tribunal-appointed experts, noting that parties will often feel obliged to appoint their own experts to challenge the Tribunal-appointed expert's view. Overall, the speakers agreed that well-informed use of experts on technical issues increases the quality of decision-making in arbitral proceedings.

Several panels focussed on achieving efficiencies through technology, including a session on "How Technological Advancements are Reshaping the Dispute Resolution Process" (Delhi). Moderating the discussion, Sumit Makhija (Partner, PwC India) explained that virtual and augmented reality, data analytics and other tools have the potential to reshaping the traditional dispute resolution process. Vijay Purohit (Partner, P&A Law Offices) discussed how technology has made case management more efficient, particularly in cross- border disputes with parties in different jurisdictions. The panel discussed the risks associated with technology such as cybersecurity and authenticity of evidence, but also how technology can address those issues through features such as digital signatures and timestamps. In line with consistent messaging from many panellists, Rajiv Kumar Choubey (Group GC, Dalmia Bharat) emphasised that while technology is a useful tool, the expertise of lawyers in interpreting the law and advising clients remains crucial. Atul Luthra (Partner, PwC India) discussed the potential of AI and machine-learning in predicting the outcome of disputes or even providing early warning signs for potential disputes. The panellists agreed that technology allows for more informed decisions by end users and legal professionals on account of data-driven insights.

Continuing the theme of efficiency in the Indian context, a panel on "Early dismissal in arbitration proceedings – is the Arbitration World ready?" considered whether the Indian arbitration landscape is ready to accept early dismissal procedures. Moderating the discussion, Nish Shetty (Partner, Clifford Chance) noted that early dismissal procedures are common in litigation but still a relatively new feature of arbitration. Ankit Goyal (Partner, Allen & Gledhill) and Samantha Rowe (Partner, Debevoise) examined the legal standard for early dismissal and presented statistics on the SIAC and LCIA case experience of such applications. Andrew Battison (Partner, Linklaters) examined the appropriate the timing for such applications, noting that early dismissal applications are generally made within five months of the constitution of the tribunal. Mr Gourab Banerjee (Senior Advocate) considered the application of early dismissal mechanisms in the Indian context and noted that Indian courts have been prepared to accommodate innovations in arbitral procedure (for instance, enforcing an Emergency Arbitrator award in Amazon v Future 1 ). The panel agreed that while the concept of early dismissal is gaining acceptance, it must be applied judiciously to maintain the integrity of the arbitral process.

In other panels, the advent of commercial third-party funding in the Indian legal market was widely discussed. Panellists commented how parties with limited cashflow (for instance, in the infrastructure sector) will present an increasing need for funding and how the involvement of sophisticated third-party funders in arbitration helps to increase the quality of the dispute resolution process. With reference to the decision in Tomorrow Sales, 2 panellists considered whether funders should be liable to pay adverse costs awards. There was also discussion on whether the third-party funding in India should be subject to regulation

1. The Supreme Court of India's enforcement of a SIAC emergency award in Amazon.com NV Investment Holdings Inc. v Future Retail Ltd has been discussed here.

2. The Delhi High Court's acknowledgement of the importance of third-party funding in providing access to justice for claimants in arbitrations in Tomorrow Sales Agency Private Limited v. SBS Holdings, Inc. & Others has been discussed here.

(following the Singapore and Hong Kong models) or allowed to evolve naturally – with some arguing that overregulation would be counterproductive and lead to more litigation.

Other panels at IAW covered a wide range of topics, including (i) the arbitrability of shareholder disputes; (ii) the impact of sanctions on India-related disputes; (iii) key considerations when appointing tribunals; (iv) the interplay between arbitration and insolvency proceedings; (v) diversity and opportunities for young arbitrators; (vi) the enforceability of interim relief and emergency arbitrator awards; (vii) the extent of arbitrator disclosure obligations; and (viii) arbitration in the Indian construction industry. Several panels also focussed on issues around investment disputes involving India and the nuances of disputes involving State parties, which will be discussed in a separate post.

Events at IAW were transcribed in real-time by TERES, an Artificial Intelligence based transcript system.

Conclusion and Insights

The discussions at IAW provided valuable insights into the evolving landscape of arbitration in India. As well as increasing adoption of international best practices, India is well-placed to take advantage of the next generation of tools in arbitration case management. Some of the key themes which emerged were the following:

• Arbitral institutions play an important role in increasing efficient case management. As well as making timely and well-informed arbitrator appointments, institutions providing a set of rules with standardised practices which allow tribunals to administer the proceedings robustly and efficiently.

• In cases with technical issues, strategic use should be made of independent experts from an early stage. Panellists recognised the important role that experts play in make arbitration a more effective and credible dispute resolution mechanism.

• Indian arbitration should continue to be receptive to innovative procedural mechanisms such as Emergency Arbitration and early dismissal mechanisms which can enhance the effectiveness and efficiency of the arbitral process, while ensuring that principles of due process are respected.

• New technologies (including AI-based tools) are set to have a transformative impact on the dispute resolution process. While legal technology offers numerous advantages in terms of efficiency, speed and data-driven decision-making, legal professionals must remain the gatekeepers for its implementation.

• The presence of sophisticated third-party funders in the Indian arbitration landscape can can help to provide access to arbitration and improve the quality of the arbitration process.

Overall, there was recognition that Indian arbitration has made considerable strides forward in terms of efficient arbitration case management. However, if it is to become a hub for international arbitration, further efforts to minimise judicial intervention are required. The discussions at IAW highlighted that while India is increasingly in tune with international standards, the unique scale and complexity of the Indian arbitration landscape mean that it will always be subject to its own local requirements.