The Centre for Advanced Research and Training in Arbitration Law and IJAL, along with Baker McKenzie, New York organised a two-day international conference on the state of arbitration, “Arbitration at Crossroads”, at National Law University, Jodhpur (India) on October 15-16, 2016. The Conference was institutionally supported by ICC, SIAC, HKIAC, MCIA and CIArb. The Society of Indian Law Firms was the principal sponsor.
The theme of the Conference, “Arbitration at Crossroads”, alludes to the critical stage which the law and practice of arbitration is at, both domestically in India, as well as in international dispute resolution. The aim of the Conference was to act as a platform for both prominent practitioners and academicians to analyse some of the most contemporary issues and help chalk out a potential roadmap to navigate through them. The panellists were experts in international arbitration and the Conference was attended by students from law schools across the country.
The Conference began with the Inaugural Ceremony. The Welcome Address was delivered by Prof. Poonam Saxena (Vice Chancellor, NLU Jodhpur) who welcomed the panellists and the participants. She commended NLU Jodhpur’s faculty and scholars on their accomplishments, and IJAL and CARTAL on their sustained efforts in furthering the study of arbitration. The introduction to CARTAL, IJAL and the Conference was delivered by Ms. Aakanksha Kumar (Executive Director, CARTAL). She talked about CARTAL’s recent activities and the progress IJAL had made to come to being renowned as a leading international dispute resolution journal. Mr. James P. Duffy IV (Partner, Baker McKenzie, New York), in his keynote address, opined that the Conference theme: “Arbitration at Crossroads”, was apropos at that point of time. He identified the issues that plague international arbitration and discussed potential solutions at length.
The first panel discussion focussed on the theme of “The Changing Face of Investor-state Dispute Settlement: Is There an Ideal Model?” The panellists for this discussion were Mr. James P. Duffy IV, who was the moderator, Dr. Aniruddha Rajput (Member, UN International Law Commission and Advocate, Supreme Court of India), Dr. Prabhash Ranjan (Asst. Professor, South Asian University, New Delhi) and Mr. George Pothan (Consultant, Ministry of External Affairs, Govt. of India). Mr. Duffy opened the session by commenting on the public backlash against ISDS and observing that ISDS provisions were difficult to avoid due to the number of BITs with MFN clauses. He was followed by Mr. George Pothan who discussed the EU Investment Court System proposal, its potential shortcomings and the possible solutions including comparing and contrasting it as against the ICJ. Dr. Prabhash Ranjan spoke about India’s 2015 Model BIT and its provisions relating to exhaustion of local remedies and the time periods therein. Mr. Aniruddha Rajput discussed the TPP Agreement, its ISDS provisions and the ISDS-only tobacco carve out.
The topic for the second panel discussion was “Transparency v Confidentiality: Finding Middle Ground in Perceived Contradictions”. The discussion was moderated by Mr. Ratan Singh (Director, CIArb, India & Chairman, Society of Construction Law). He identified two schools of thought – the “Express Camp”, that believes that the provisions for confidentially should be expressly stated, and the “Implied Camp”, which asserts that confidentiality is inherent to arbitration. Thereafter, Ms. Olga Boltenko (Counsel, CMS HascheSigle, Hong Kong) explained how the approach to transparency is much more balanced in modern investment treaties and stated that there is renewed hope for transparency in investment treaty arbitration with the amendment of the ICSID Convention, the NAFTA and the inclusion of transparency provisions in the new breed of treaties. She was followed by Mr. Rishab Gupta (Counsel, Shardul Amarchand Mangaldas, Mumbai) who discussed transparency in arbitral appointments, through explaining a unique database which sought to identify the world’s most influential arbitrator. The last panellist, Mr. Kabir Duggal (Senior Associate, Baker McKenzie, New York), discussed transparency concerns in relation to third-party funding. He discussed potential conflicts that may arise due to involvement of a funder and how disclosure of funding in a particular form, at a particular time in the proceedings can address such conflicts.
Day two began with the panel discussion on “Institutional Arbitration in India: Past, Present and Future”. Mr. Shashi Dholandas (Associate General Counsel, The Judge Ltd), Mr. Pranav Mago (South Asia Head, SIAC), Ms. Neeti Sachdeva (Registrar, MCIA) and Mr. Kartikey Mahajan (Associate, Clifford Chance, Singapore) participated in the discussion. The moderator, Mr. Dholandas, posed questions concerning continuing challenges to institutional arbitration in India, cost effectiveness of ad hoc arbitration over time effectiveness of institutional arbitration, the desirabilility of institutional arbitration in India in sectors such as banking and insurance, as well as concerns of the overall success of institutional arbitration in India. The institutional representatives, Mr. Mago and Ms. Sachdeva, expressed their belief that institutional arbitration is a more cost effective model and that the time aspects of institutional arbitration may continue to be indeterminate in light of newly introduced Section 29A of the Indian Arbitration Act. Mr. Mahajan pointed out the lack of a single international arbitral institution in India how the same is hindering efforts to towards promoting institutional arbitration.
The theme of the final panel discussion was Overhaul of the Indian Arbitration Law: Critiquing the Amendment Act of 2015. Ms. Aakanksha Kumar, moderator for the session, began by broadly explaining the Indian legislative landscape post the 2015 amendments. The first panellist, Mr. Sahil Kanuga (Co-Head, Commercial Disputes Practise, Nishith Desai Associates, Mumbai), shared his comments on the legislative overruling of precedents in Section 8 and the restrictions of the scope of enquiry under Sections 8 and 11. Mr. Promod Nair (Founding Partner, Arista Chambers, Bangalore) discussed the impact of the amendments to Section 17 and the expansion of the scope of the arbitrators’ powers to grant interim measures. Lastly, Ms. Sonali Mathur (Senior Associate, AZB & Partners, Mumbai) discussed the applicability of the 2015 Amendment Act to court proceedings related to arbitrations commenced before the amendments came into effect.
The Conference was concluded by the report by Ms. Sanjana Srikumar and Mr. Varun Mansinghka (Joint Convenors of the Conference and Editors-in-Chief, IJAL). Mr. Viraj Dhuri (Organising Secretary of the Conference and Managing Editor, IJAL) delivered the Vote of Thanks.