The Indian arbitration sector is seeing an upswing. And how. The past year has not only seen several amendments to arbitrations laws (and consequent litigation), but also the establishment of the MCIA. Just two weeks back, the country saw a 3-day conference on ‘Strengthening Arbitration and Enforcement in India’ organised by Niti Ayog.
Recently, the government has also revealed a list of firms shortlisted for representing the country at an international stage as per a PTI report published on LiveMint.
In a first of a kind move by the Ministry of Finance, based on a Request for Proposal (RPF) issued earlier in January this year, as many as twelve international, and four domestic law firms have been shortlisted for representing the Government of India (GOI) in international arbitration proceedings. More specifically, arbitrations arising out of the various Bilateral Promotion and Protection Agreements (BIPAs) and Bilateral Investment Treaties (BITs).
The RPF has been issued in light of the rising instances of international trade and investment disputes which the GOI has been engaged in the recent past- White Industries, Vodafone, Children’s Investment Fund, and Cairn Energy to name a few.
Anirudh Krishnan, Partner at AK Law Chambers says,
“BIT arbitrations would require expertise in Indian domestic law and public international law (and in some cases the law of the State of the investor). The former obviously requires a domestic law firm to be engaged. Foreign law firms are perhaps engaged because of their expertise in the latter and their wider bandwidth to handle such cases.
This is a highly specialized area with practitioners in India having far less experience than some of the firms abroad who have dealt with a number of BIT arbitrations.”
While the scope of work for both domestic as well as International law firms appear to be similar in nature, there are certain responsibilities which are strictly delineated between the two:
- Domestic firms will inter alia be involved in providing legal assistance and preparation of strategy for representing GOI, help in procedural aspects of the proceedings and assist the Ministry/Department for negotiations;
- International firms on the other hand will inter alia actually represent GOI in the arbitral proceedings under the ICSID or UNCITRAL Rules and provide legal advise on issues pertaining to international law.
The list of shortlisted domestic firms was issued on 30 September, and the list of international firms was issued on 31 October. These lists are based only on technical bids, since the financial bids are yet to be evaluated.
As far as international firms go, among others, more heard-of names such as DLA Piper, Debevoise & Plimpton and Clyde & Co have made the list.
However, given that investment treaty disputes a very specialist area of practice, with very few firms providing this expertise in India, the shortlisted domestic firms include smaller ones such as- Aarna Law, Arista Chambers, Clarus Law Associates and PLR Chambers.
“It is good that firms have been chosen based on some rational criteria. However, what is even more important according to me is to constitute a High Level Risk Assessment Committee, which will examine the merits/ demerits of each BIT arbitration and advise the Government appropriately.”
The Finance Ministry is not the only ministry that has sought to empanel law firms. Last year, the National Informatics Centre Services, which is the corporate extension of National Informatics Centre, Department of Electronics & Information Technology and Ministry of Communications &Information Technology, had also issued a similar RFP for engagement of domestic law firms, as did the Indian Ports Association.
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