Four years ago, in a short, cutting address, Fali S. Nariman exhorted arbitration practitioners to never stop thinking about ways to improve arbitration. Arbitration, and how it is conducted, he remarked, “is a subject that needs perennial scrutiny”. Mr. Nariman then recalled this story often attributed to eminent arbitrator, Prof. William W. Park – “[T]here is a sign in the window of a shoe repair shop in downtown Boston. It is run by a Greek immigrant who is fed up with customer complaints. So, he put up the following sign in a triangle connecting three expressions – one, Fast Service; the other, Low Price; and third, High Quality. Beneath that, he had written: ‘Pick any Two’. All three can never go together. That is the tragedy of international commercial arbitration.” This statement has long held true for the state of India-seated arbitrations also, and perhaps more so when the underlying disputes are domestic.
It is difficult to see any silver lining in the situation created by the onset of COVID-19. However, for practitioners of arbitration in India, these ongoing circumstances have created a viable opportunity to set ourselves in pursuit of that elusive triangle which Park and Nariman mention and in that process work towards reversing a great tragedy.
India-seated arbitrations have tended to be as procedurally complicated as court proceedings. This is well acknowledged by the legal community. Yet, there has not been any noticeable change in our approach to arbitral proceedings. It is an issue which is often mentioned but never appropriately addressed in practice. In any other ‘routine’ year, popular discourse in this field would have been instead limited only to matters of streamlining arbitral jurisprudence. Further, a direction to hold arguments by video conference would have found curt resistance by way of preliminary objections founded on assertions of violation of the parties’ right to a ‘full’ opportunity to present their case. The pandemic compelled Indian practitioners, within a matter of days, to readjust our approach to a major aspect of dispute resolution, oral hearings. In a country where preferences have oscillated heavily in favour of physical hearings, be it litigation or arbitration, parties began placing confidence in virtual options. While this may be more applicable, for the moment, to those India-seated arbitrations that have an international element, there is a lot in this experience that we can borrow and emulate while conducting domestic arbitrations as well.
I may not be misunderstood as proposing virtual or remote hearings to be a complete alternative to physical hearings when conducting arbitrations. Virtual hearings have not yet equalled in-person hearings in terms of the advantages that the latter provide to practitioners in making oral arguments. Rather, the point that I wish to make here was most aptly expressed by Darius J. Khambata earlier this year during a conversation (with Adrian Winstanley) organised by the Mumbai Centre for International Arbitration - “One would hope in 6 to 8 months time, when some sanity returns to all of this, the physical hearing would be restored to its rightful place, which is just the one part of an arbitration. It should not be all dominating; it should not be all-pervasive. Just that last final hearing [for] there is great value in having a face-to-face contact with the tribunal, and for the tribunal to actually see the lawyer it is dealing with.”
It is true that for the most part this has largely been followed in the practice of international arbitrations conducted under the aegis of leading institutions, and yet, the costs involved have continued to be high. However, in the Indian context, several factors can assist in meeting the goal of providing fast service, low price and high quality when conducting the proceedings. India has no dearth of skilled and well-trained commercial lawyers today. Having the second largest population of lawyers outside of the United States further ensures that, to a great extent, lawyers consistently compete to provide affordable services. The present times have also witnessed the judiciary, institutions and law offices augmenting e-infrastructure and facilities, leading to significantly reduced travel costs and enhanced efficiency in collaboration and productivity.
As many of us have learnt, there is more to arbitration and technology than projectors, transcription services and electronic filings (as a follow-up formality). Case management conferences, production of documents and document discoveries can, in several cases, be more effectively held by way of virtual means. Further, the sheer number and range of third-party services available to organise various stages of arbitration proceedings now also allow the tribunal and parties to determine the extent to which virtual options can be availed given the circumstances. The procedure can be tailor-made not only to match time and cost expectations but to also address disparities in the technical abilities of parties and practitioners.
There are huge prospects for younger lawyers to come up and contribute to this process. Some in the Indian arbitration community are already taking a lead. For instance, the Indian Arbitration Forum (IAF) issued the IAF Protocol on Virtual Hearings for Arbitrations in September 2020 which consolidates the good practices that parties may adopt while conducting an arbitration. A little earlier, in June, a very thorough and comprehensive practical guide was issued by MNLU Mumbai’s Centre for Arbitration and Research which serves as a great starting point for deeper discussions on this topic. In this background, all that is required for Indian practitioners to stand out is to willingly adopt the best practices while conducting domestic arbitrations in the same manner as they would an international, institutional arbitration.
In addition, a little change in our attitudes can go a long way in this pursuit of the elusive triangle – we need to break the habit of appearing in arbitrations occasionally, only when time and our court appearances permit. We also need to stop equating arbitration proceedings with proceedings in a civil suit. Old habits die hard, and if that be the case, ‘virtual procedures’ may just be the shot we need so badly!