The future of arbitration is bright, but only because the future of litigation is not, said Senior Advocate Fali S Nariman..The octogenarian lawyer made the light-hearted remark while delivering the keynote address at a seminar on “Ethics in Arbitration”. The seminar was organized by The Delhi International Arbitration Centre (DIAC) at the India International Centre, New Delhi on Saturday, September 1, 2018..Nariman spoke at length on how to ensure that the best possible person is appointed as arbitrator and stated that the test of arbitrator’s neutrality must be “as high as that of a judge or probably higher” as he decides questions of law as well as facts, without any right to appeal at times..“We need to change the present system of challenges to arbitrators. Under applicable arbitral rules or ad hoc practice around the world, the current system of challenge to the independence or impartiality of an Arbitrator – elitist or otherwise – is far too loaded in favour of the arbitrator challenged.”, he further said..Nariman also suggested that arbitration proceedings can be made time bound by giving a strict time limit to the parties to put forth their case..“How would our Courts react to a plea that one of the parties was hustled, was hence unable to present his case in conformity with due process, I do not know.”, he said..The Seminar was attended by judges, Arbitrators, and lawyers including many members of the Arbitration Committee of the DIAC comprising its Chairperson Justice S Murlidhar, Vice-Chairperson Justice Rajiv Shakdher and members Justice Vibhu Bakhru, Justice Yogesh Khanna, Additional Solicitor General Maninder Acharya, and Senior Advocates Kirti Uppal, AK Ganguli, Rajiv Nayyar, Ciccu Mukhopadhyaya, Rajeev Mehra and Advocates Shashank Garg and Nakul Dewan..Justice Sanjeev Khanna of Delhi High Court was the chief guest for the event, and the welcome address was delivered by DIAC Chairman Justice Muralidhar..Former High Court judges, representatives of various law firms, law schools, advocates and students also participated in the day-long event..Chairing the seminar’s first session on “Conflict of Interest in the Appointment of Arbitrators”, former Chief Justice of Delhi High Court, Justice AP Shah stressed on an arbitrator’s “duty of impartiality and fairness”..Justice Shah also mooted the idea of an autonomous and independent arbitration institution, unlike the DIAC which functions under the aegis of the Delhi High Court. He suggested that an arbitration centre should be manned by dedicated professionals and not be attached to a court..Justice Vibhu Bakhru, who was one of the panelists, drew the gathering’s attention to the practice of few corporations such as NBCC, keeping the option of arbitration open only to “notified claims”. This notified claim is also decided by one of the officers of the corporation..Hiroo Advani, Founding & Managing Partner, Advani & Co. spoke about various instances of conflict of interest of arbitrators and also highlighted how various International Arbitral Institutions have provided for mitigation of such conflicts of interest in their respective Rules..In the Second Session themed on “Challenges to Arbitrators”, Former Chief Justice of High Court of Punjab & Haryana S. J. Vazifdar deliberated upon the inadequacy of lexical definition of “impartiality” and “independence”, stating that the concept must “fine-tuned and adapted” as there can be no exhaustive criteria to define it..“The difficulty arises from the concept of impartiality..it varies from place to place and time to time. There was a time when nobody would have given a second thought to a judge going on a walk with an advocate seven days a week. The times have changed now.”, he explained..Panelist Zia Mody, Managing Partner, AZB & Partners spoke on the practical realities of challenging an arbitrator on account of an apprehension of bias or non-disclosure. She highlighted how it was at times “difficult to have a frank conversation” with former Judges and Chief Justices who function as arbitrators and suggested that one must look for “genuine experts” from the concerned field while making the appointment..The third session on “Fees of Arbitrators”, which was chaired by former Chief Justice of High Court of Punjab & Haryana Mukul Mudgal, witnessed Senior Advocate Meenakshi Arora speaking on “self-regulation” with respect to the determination of an arbitrator’s fee..She advocated that the fee must be primarily determined by parties to the arbitration, based on their capacity to pay, level of expertise required in the dispute, volume of records in the dispute, and time taken to arrive at an award..Senior Advocate KV Viswanathan, on the other hand, noted that the parties in an arbitration might be unevenly placed financially and hence, the fee must be determined keeping in mind “fairness, economy and rule of law”..Speaking on the theme “Timelines for Award”, Senior Advocate Akhil Sibal advocated for a strict and fixed timeline for an arbitral award and urged everyone to work towards “changing the culture of delay”..He, nonetheless, warned against the adoption of a one-size-fits-all approach in formulating timelines for all kinds of disputes..Read Fail Nariman Full Speech here:.Images Courtesy: DIAC
The future of arbitration is bright, but only because the future of litigation is not, said Senior Advocate Fali S Nariman..The octogenarian lawyer made the light-hearted remark while delivering the keynote address at a seminar on “Ethics in Arbitration”. The seminar was organized by The Delhi International Arbitration Centre (DIAC) at the India International Centre, New Delhi on Saturday, September 1, 2018..Nariman spoke at length on how to ensure that the best possible person is appointed as arbitrator and stated that the test of arbitrator’s neutrality must be “as high as that of a judge or probably higher” as he decides questions of law as well as facts, without any right to appeal at times..“We need to change the present system of challenges to arbitrators. Under applicable arbitral rules or ad hoc practice around the world, the current system of challenge to the independence or impartiality of an Arbitrator – elitist or otherwise – is far too loaded in favour of the arbitrator challenged.”, he further said..Nariman also suggested that arbitration proceedings can be made time bound by giving a strict time limit to the parties to put forth their case..“How would our Courts react to a plea that one of the parties was hustled, was hence unable to present his case in conformity with due process, I do not know.”, he said..The Seminar was attended by judges, Arbitrators, and lawyers including many members of the Arbitration Committee of the DIAC comprising its Chairperson Justice S Murlidhar, Vice-Chairperson Justice Rajiv Shakdher and members Justice Vibhu Bakhru, Justice Yogesh Khanna, Additional Solicitor General Maninder Acharya, and Senior Advocates Kirti Uppal, AK Ganguli, Rajiv Nayyar, Ciccu Mukhopadhyaya, Rajeev Mehra and Advocates Shashank Garg and Nakul Dewan..Justice Sanjeev Khanna of Delhi High Court was the chief guest for the event, and the welcome address was delivered by DIAC Chairman Justice Muralidhar..Former High Court judges, representatives of various law firms, law schools, advocates and students also participated in the day-long event..Chairing the seminar’s first session on “Conflict of Interest in the Appointment of Arbitrators”, former Chief Justice of Delhi High Court, Justice AP Shah stressed on an arbitrator’s “duty of impartiality and fairness”..Justice Shah also mooted the idea of an autonomous and independent arbitration institution, unlike the DIAC which functions under the aegis of the Delhi High Court. He suggested that an arbitration centre should be manned by dedicated professionals and not be attached to a court..Justice Vibhu Bakhru, who was one of the panelists, drew the gathering’s attention to the practice of few corporations such as NBCC, keeping the option of arbitration open only to “notified claims”. This notified claim is also decided by one of the officers of the corporation..Hiroo Advani, Founding & Managing Partner, Advani & Co. spoke about various instances of conflict of interest of arbitrators and also highlighted how various International Arbitral Institutions have provided for mitigation of such conflicts of interest in their respective Rules..In the Second Session themed on “Challenges to Arbitrators”, Former Chief Justice of High Court of Punjab & Haryana S. J. Vazifdar deliberated upon the inadequacy of lexical definition of “impartiality” and “independence”, stating that the concept must “fine-tuned and adapted” as there can be no exhaustive criteria to define it..“The difficulty arises from the concept of impartiality..it varies from place to place and time to time. There was a time when nobody would have given a second thought to a judge going on a walk with an advocate seven days a week. The times have changed now.”, he explained..Panelist Zia Mody, Managing Partner, AZB & Partners spoke on the practical realities of challenging an arbitrator on account of an apprehension of bias or non-disclosure. She highlighted how it was at times “difficult to have a frank conversation” with former Judges and Chief Justices who function as arbitrators and suggested that one must look for “genuine experts” from the concerned field while making the appointment..The third session on “Fees of Arbitrators”, which was chaired by former Chief Justice of High Court of Punjab & Haryana Mukul Mudgal, witnessed Senior Advocate Meenakshi Arora speaking on “self-regulation” with respect to the determination of an arbitrator’s fee..She advocated that the fee must be primarily determined by parties to the arbitration, based on their capacity to pay, level of expertise required in the dispute, volume of records in the dispute, and time taken to arrive at an award..Senior Advocate KV Viswanathan, on the other hand, noted that the parties in an arbitration might be unevenly placed financially and hence, the fee must be determined keeping in mind “fairness, economy and rule of law”..Speaking on the theme “Timelines for Award”, Senior Advocate Akhil Sibal advocated for a strict and fixed timeline for an arbitral award and urged everyone to work towards “changing the culture of delay”..He, nonetheless, warned against the adoption of a one-size-fits-all approach in formulating timelines for all kinds of disputes..Read Fail Nariman Full Speech here:.Images Courtesy: DIAC
