Dr. Amit George, welcome to the Arbitration Workshop! We appreciate that you have given us this opportunity to share your perspective with our readers at an exciting moment.
Q1. Before we delve in, may we request you to kindly introduce yourself and tell us about the origins of your interest in the field of Commercial Arbitration?
A1. I am a practicing advocate, and I appear primarily before the High Court of Delhi and before various arbitral tribunals in ad-hoc and institutional arbitrations. My interest in arbitration primarily sprung from the experience of working with my father who has for long been specializing in infrastructure arbitration. After undertaking a judicial clerkship for a year at the High Court of Delhi, I joined my father’s chambers where I remained for a period of around three years before I struck out on my own. During this time, I had occasion to participate in a large number of arbitration proceedings which helped me develop an interest in this area of law. Subsequently, upon going independent, I concertedly sought to specialize in arbitration inasmuch as the field had already started growing at a tremendous pace at that point in time and, from a purely practical perspective, a specialization in arbitration helped in being able to generate independent work at a relatively early stage of my career as also in developing and refining my skills in various aspects of adversarial litigation such as drafting of pleadings, oral evidence, oral arguments etc.
Q2. Commenters state that the popularity of arbitration as a mode of dispute resolution is under threat. Some are even of the belief that litigation in a Commercial Court may be better suited than arbitration as arbitration has not been what it was advertised as “a quick and efficient dispute resolution process”. What are your views?
A2. While I believe that the Commercial Courts Act, 2015 definitely reflects a positive and welcome cultural shift in the way civil litigation is sought to be conducted in our country, I would be a little more guarded in terms of its ultimate impact in the long run in being able to ensure timely and efficient adjudication of commercial disputes. Though this is a subject that requires detailed discussion, to put it pithily the expedited procedure under the Commercial Courts Act is largely dependent on having the requisite infrastructure in place in terms of courtrooms, technology etc. as also in terms of a sufficient number of judges being available to try these cases in a systematic manner. Elements in the Commercial Courts Act such as case management hearings, and ensuring that a trial is conducted in a systematic manner right till the culmination thereof without any deviation from the agreed schedule, can only be guaranteed in an environment where a Commercial Court is not inundated with a large number of cases, and which is unfortunately already becoming a reality in many of the designated Commercial Courts. When a Judge presiding over a Commercial Court has in excess of forty or fifty matters a day to deal with, to what extent can he or she ensure fidelity to a pre-fixed schedule for a particular case listed on the said day? Therefore, unless an urgent and significant augmentation of resources – especially in the form of recruitment of Judges – is carried out specifically with the Commercial Courts in mind, I can visualize the Commercial Courts system soon being gridlocked and suffering from the same woes that have hobbled the traditional Civil Court system. While the ‘software’ in the form of the Commercial Courts Act is relatively sound, the ‘hardware’ in the form of existing manpower and infrastructure is woefully inadequate to be able to meet the soaring ideals of the Act. Arbitration, with all its flaws, ensures parties a dedicated arbitral tribunal to hear their case on a designated date and time, which is something that the Commercial Courts Act is far from being able to achieve, at least with the current state of availability of judicial manpower and infrastructure. Yet further, after the 2015 amendment to the Arbitration and Conciliation Act, 1996, the overall timeline for conclusion of arbitral proceedings has significantly improved though it is still far from ideal. While it needs no gainsaying that the arbitration system undoubtedly suffers from various challenges which need to be addressed, the unquestioning and euphoric embrace of the Commercial Courts Act as being a panacea for all ills is a bit of a utopian ideal.
Q3. In our experience, we have seen that the contract law jurisprudence in India is underdeveloped because of which we see reliance being placed upon the principles of English Law. Do you agree? Do you feel that contract law can be developed through arbitrations in India?
A3. I think it might be a bit harsh to state that the contract law jurisprudence in India is not developed inasmuch as with the Indian Contract Act has come into existence in the year 1872, there is a reasonably large body of precedent emanating from the Indian courts on various aspects of contract law. However, because the Indian Contract Act is steeped in, and owes its origins to, the English Law tradition, it is but natural to make a reference to the English Law to fully understand and grasp the origin and the subsequent evolution of many of the fundamental concepts under the Indian Contract Act. Hence, a reference to English Law, while providing greater insight and nuance to the area of contract law being examined, is not necessarily indicative of an insufficient body of jurisprudence in India. As regards the development of contract law through arbitration, in my view many arbitral awards contain illuminating expositions on issues relating to contract law and, once issues of confidentiality are satisfactorily addressed, there should be an institutional mechanism put in place to make this body of work available to everyone in the legal fraternity. Possibly, this is an endeavour that the proposed Arbitration Council of India can embark upon in the future.
Q4. In your experience, what value does oral evidence have in commercial disputes where the contract and documents exchanged between the parties contain most of the material relevant for deciding the dispute between the parties?
A4. On a wider level, I agree that oral evidence is largely redundant in cases where there is significant documentary evidence in relation to the subject matter of the dispute. There are still, however, a significant number of cases where there is a specific area of factual contestation between the parties which may not be adequately addressed in contemporaneous communications or other relevant documentation. In such a scenario, if it is crucial for one of the parties to prove the existence of certain facts in order to be able to prevail in the proceedings, then oral evidence would be indispensable. Further, oral testimony of expert witnesses might still be required in cases where there are complex technical or accounting issues afoot. Therefore, though I agree that a stereotypical and mechanical recourse to oral evidence in all cases should be avoided, at the same time, oral evidence does continue to play an important role in certain scenarios.
Q5. Readers of Bar & Bench and our blog are well versed with your excellent summaries of cases. Please kindly share with our readers the process that you undertake for identifying relevant cases for your summaries and other helpful tips?
A5. As regards the identification of the relevant case law, with the focus of the ‘In Review’ column on Bar & Bench being to ensure the widest possible coverage of the various judgments rendered, the only judgments which are excluded are those which have been rendered on the basis of consensus between the parties or those which are limited purely to the specific facts occurring in the case at hand without any wider legal principles at play. Though a detailed critical analysis of these various judgements is impractical owing to limitations of space and time, the focus is on distilling the ratio of the judgement as also bringing to light findings which either adjudicate upon a completely novel point or offer an articulate and concise reiteration of an existing position in law. Also, considering the large volume of cases being dealt with every month, it is imperative to have a strong team working on the same. My associates in the chamber dedicate several hours in a month to give final form to the review before it is published. Without their involvement and dedication, it would be impossible to undertake this task on a regular basis. The only ‘tip’ which I can profess to share is to try and get comfortable with the process of actually enjoying the exercise of reading judgements, and which stage is reached after the initial few weeks of religiously following a daily routine in this regard. Once this comfort level is attained, it then becomes progressively easier to sift through a large number of judgments and discern the ratio contained therein.
Q6. Public Policy grounds to challenge domestic arbitrations awards have seen great changes over the years. Do you believe that the issue is now well-settled post the 2015 and 2019 amendments to the Arbitration Act, 1996 as well as the judgment of the Supreme Court in Ssangyong Engineering & Construction Company Ltd. v. National Highways Authority of India [(2019) 15 SCC 131]? In your opinion is it fair that ‘Patent Illegality’ remains a ground only for the challenge of domestic awards and not a ground for testing a foreign award during enforcement under Section 48?
A6. I do not believe that the amendments have effected a sea-change in terms of the scope of interference with an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996. While this may have been the intention inasmuch as the ‘public policy’ ground was significantly whittled down through the amendments, the express textual adaption of the concept of ‘patent illegality’ has once again opened up the potential to articulate a challenge to an arbitral award on the merits. The judgement of the Supreme Court in Patel Engineering Ltd. v. North Eastern Electric Power Corporation Ltd. [2020 SCC Online SC 466] seems to uphold such an expansive interpretation of the patent illegality provision under the amended Section 34. Hence, even though the scope of challenge under Section 34 remains limited, as it always has been, the position today is not radically different from the unamended Section 34 as existed before the amendments viz. if there is a gross perversity or illegality in the arbitral award then the court can interfere and set-aside the same. Inasmuch as the terms ‘perversity’ and ‘patent illegality’ are relatively vague and amorphous in nature, deducing any universal objective standard is difficult. As regards the differentiated standard in the case of a foreign award, the exclusion of the ground of patent illegality for testing a foreign award cannot be said to be unfair or problematic for the reason that the correct forum for testing a foreign award on the merits is before the Courts of the seat of arbitration. Past experience has shown that the existence of a ‘patent illegality’ provision frequently invites a review of the merits of an arbitral award which, in the context of a foreign award, is extremely problematic, both personally for the litigating parties as also institutionally in terms of the efficacy of international arbitration.
Q7. In your experience and opinion, what kind of importance does an academic background in arbitration have when it comes to arbitration practice?
A7. Insomuch as an academic background potentially equips a practitioner with a more detailed and nuanced understanding of the underlying theory behind the law, it is definitely of significant help while dealing with complex legal and procedural issues. Yet further, a certain level of comfort with sustained research work also helps in navigating the voluminous record that is part and parcel of most contemporary arbitration proceedings. Therefore, an academic background definitely helps provided that this background is then supplemented with the relevant exposure in terms of the conduct of real-world arbitration proceedings inasmuch as the gap between the ideal theoretical formulation of how an arbitration proceeding should be conducted, on the one hand, and the reality on the ground level, on the other, can be quite wide.
Q8. With the pandemic of COVID 19 affecting the daily life and since arbitrations are being held via virtual hearings, how do you see the arbitration practice changing? Do you feel that the practice will now favour the written word of pleadings and written arguments more than the oral arguments made?
A8. Inasmuch as oral arguments remain central to our adversarial system of dispute resolution, I do not expect a significant reduction in the emphasis or in the time devoted to oral arguments. However, I do foresee a significant increase in supplemental aids in the form of written submissions, convenience compilations etc. Though these aids have always existed, with the current pandemic and the logistical issues caused on account of the same, the utilization of these supplemental aids should increase significantly.
Q9. In this era of online research, many people still rely on hardbound books for their research. What best describes your style of research? Which books on contract law and arbitration, that are part of your library, would you recommend to an arbitration practitioner?
A9. When it comes to research, I largely utilize a mixed approach. I reach out to the printed commentaries for a better understanding of the basics of the problem and the relevant seminal judgements on the point. However, considering the vast amount of precedent that is now generated on any area of law, particularly arbitration, any commentary is effectively outdated the very next day after it is published. Therefore, it is very important that online resources are also consulted in addition to the standard textbooks on the subject. Yet further, one discovers articles online which can provide focused and easily accessible insight into the latest precedent or general developments in relation to the law. As regards the texts that I rely on, following are the list of titles that I regularly refer to for the purpose of research in arbitration law:
Commentary on the Law of Arbitration [2020]
Indu Malhotra J.
Principles of Law of Arbitration in India [2018]
Dharmendra Rautray
R.S Bachawat’s Law of Arbitration & Conciliation [2017]
Anirudh Wadhwa and Anirudh Krishan
Redfern and Hunter on International Arbitration [2015]
Nigel Blackaby, Constantine Partasides, Alan Redfern and Martin Hunter
International Commercial Arbitration [2014]
Gary Born
International Construction Arbitration Handbook [2014]
John W. Hinchey and Troy L. Harris
Comparative International Commercial Arbitration [2003]
Julian D. M. Lew, Loukas A. Mistelis and Stefan Michael Kröll
Q10. Finally, what would be your advice for law students and young lawyers wanting to pursue arbitration as a career?
A10. If the contemporary trend continues to hold good into the future, the field of arbitration is poised to grow manifold and become one of the largest prospective areas of practice for a lawyer in India. Therefore, the potential is unlimited as far as law students or young practitioners are concerned. However, one aspect which I always try and bring forth in any discussion on this issue is that arbitration, particularly domestic arbitration, should not be viewed as completely divorced from the litigation firmament inasmuch as there is still a significant amount of interplay between the two, which is likely to continue into the future. Hence, while it is increasingly possible to have a career-focused purely on arbitration, it is important that practitioners, at least in the early years, also dabble in general litigation to whatsoever extent possible to better augment their skillset for an arbitration-centric practice.
The Editorial Team at the Arbitration Workshop would like to thank Dr. Amit George for taking out time from his busy schedule and for sharing his perspectives with us!