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What does Online Dispute Resolution entail? Here’s a detailed primer.
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Smart contracts are self-enforcing computer programmes that become more secure on the blockchain. The blockchain is a decentralized and distributed ledger spread across the internet. It allows the storage of information in multiple locations around the world, making it difficult to lose or alter data. In addition, it has rules that govern additions to its content, which makes it difficult to spoof or edit information. The blockchain also provides encryption with public and private keys to enhance privacy and security. As the technology continues to evolve, it is becoming more reliable and trustworthy.
Blockchain and Smart Contracts in Online Dispute Resolution
Online Dispute Resolution (ODR) is increasingly using smart contracts to automate the resolution of disputes transparently and efficiently. These can save time and cost in dispute resolutions while increasing the accuracy and consistency of the outcome.
Another benefit of using smart contracts in ODR is the increased transparency and fairness of the process. The terms of the contract are transparent and publicly available. Hence, parties to the dispute can see exactly what they are agreeing to and trust in fair and impartial enforcement. This builds trust and confidence and encourages parties to resolve disputes through ODR instead of traditional forms of dispute resolution.
Despite these benefits, the use of smart contracts in ODR faces challenges. A key challenge is a need for a certain level of technical expertise to understand and use them. This can be a barrier to entry for some parties, particularly those unfamiliar with blockchain technology or coding.
Another challenge is the issue of enforceability. Because many jurisdictions don’t yet recognize smart contracts as legal, it may be difficult to enforce one’s terms in court. This can create uncertainty and may discourage some parties from using smart contracts in ODR.
Case Study I: Kleros Final Award – Mexican Court
Smart Contracts in ODR in India
Indian courts have not heavily tested the notion of blockchain arbitration yet. Historically, Indian courts have taken a relatively suspicious view of arbitration, which has only recently begun to change.
We need to examine two key facets of the applicability of smart contracts in India’s ODR space in detail:
The agreement has to be in writing
According to Section 7 of the Arbitration and Conciliation Act 1996, an arbitration agreement must be “in writing,” but communicating the agreement through “electronic means” also satisfies this requirement. An amendment to the Act in 2015 added this provision, but it does not define the term “electronic means”. A similar provision in the Information Technology Act 2000 defines “electronic means” as a method of creating an “electronic record,” which includes data stored or transmitted electronically. There is a possibility that one could consider blockchain arbitration agreements, which use smart contracts in programming code to execute actions for predetermined conditions, as a form of communication through “electronic means,” but the courts or the Law Commission have not yet definitively answered this question.
Jurisdiction/Territory
India has a reservation to the New York Convention that limits the recognition and enforcement of foreign arbitral awards to certain parties to the Convention. Blockchain arbitration — decentralized by nature — may not meet the requirements for territoriality in India and may therefore not be enforceable. This is because India has not recognized awards made online outside of any particular territory. It is possible that legislation could address this issue, and a report from NITI Aayog in October 2021 suggested that blockchain-based smart contracts could potentially transform arbitral processes.
Indian Landscape and Legal Implications
The use of smart contracts is gaining traction in India, as a way to automate their execution and reduce the need for manual intervention. The Indian government has had a chequered past with blockchain applications, including a ban on virtual currencies in 2018, which the Supreme Court later quashed. The Indian Contract Act, 1872 requires that for a contract to be valid, it must satisfy the criteria of offer, acceptance, and consideration. In the case of smart contracts, the publishing of code on a blockchain would be the equivalent of an offer, while another party’s acceptance of that offer would be their assent to the contract. The performance of the tasks outlined in the code would receive valid consideration. However, Indian law may not recognize smart contracts without digital signatures and authentication in accordance with the Information Technology Act of 2000.
Another legal implication is the issue of liability. In the event of a breach of a smart contract, it may be difficult to determine who is responsible and how to hold them accountable. This is because smart contracts are executed automatically, without the need for manual intervention. This can create uncertainty and may make it difficult to assign responsibility in the event of a breach.
Furthermore, the use of smart contracts may also have implications for existing laws and regulations. For example, they may be subject to different laws and regulations depending on the nature of the contract and the parties involved. This can create complexity and may require careful legal analysis in order to ensure compliance.
Use-cases
One of the many possible use cases of smart contracts in ODR is to automate the resolution process for disputes that arise in online transactions. Some of the scenarios are illustrated in the figure below:
Conclusion
Overall, the use of smart contracts in India is a rapidly evolving area, and there are many legal implications that need to be considered. Further work is needed to develop a clear legal framework for the use of smart contracts in India, in order to provide clarity and certainty for parties who wish to use them.
Despite the potential benefits of smart contracts, there are a number of regulatory and policy issues that need to be addressed. These include concerns about jurisdiction and the potential for fraud due to the anonymity of the process. In order for smart contracts to be implemented successfully, the Indian regulatory framework would need to be amended and aligned to govern their use.
Arbitral awards are akin to verdicts in court cases, often made by an arbitration tribunal. For these awards to be legally enforceable, they must meet specific criteria stated in the Arbitration and Conciliation Act, 1996. They need to be in writing, signed by the tribunal, reasoned, and must mention the date and location of arbitration.
There is also an additional requirement — stamping the award, as per Section 35 of the Indian Stamp Act, 1899. Stamping is the process of marking a document, indicating the payment of the required stamp duty. The stamp duty amount varies depending on where the award is made. Without a stamp, or with an insufficient stamp, you cannot use an award for any legal purpose until you pay the deficiency, along with a penalty.
E-signing, e-stamping, and ODR
Technology has brought significant advancement to this process. E-stamping, or electronic stamping, is a method of paying the stamp duty online. The Stockholding Corporation of India Ltd. provides e-stamping services to 22 Indian states, while Maharashtra has introduced its e-stamping facility, i.e., the ‘Electronic Secure Bank and Treasury Receipt‘.
Signing the arbitration award is also crucial, as per the Arbitration and Conciliation Act, 1996. In an era driven by online dispute resolution (ODR), traditional signing isn’t always possible — or the most effective method. This is where e-signatures come into play. Section 5 of The Information Technology Act, 2000 (IT Act) gives legal recognition to these digital signatures, placing them on the same footing as traditional signatures.
The I.T. Act, 2000 goes a step further and by way of Sections 4 and 10A grants legal recognition to electronic records and contracts formed through electronic means, respectively, enabling the possibility of ODR. To further make the concept of e-signatures and electronic records acceptable, parallel provisions and amendments have also found their place in statutes such as the Indian Evidence Act, 1872 whereby, while electronic records are made acceptable in the form of documentary evidence, the presence of a valid e-signature gives rise to a presumption as to electronic agreements (Section 85A). Furthermore, Section 65B provides for the admissibility of electronic records.
The abovementioned provisions showcase that the digital era of justice is here, marking a new wave of transparency, efficiency, and accessibility.
Recognised ways of affixing an e-signature
There are three recognised ways of affixing e-signatures. They are:
- Aadhaar-based OTP e-sign,
- Biometric-based e-sign, and
- Dongle-based e-sign.
At Presolv360, our arbitrators utilize these e-signing methods within the boundaries set by the IT Act, 2000. We ensure the necessary statutory requirements for the creation of a valid Arbitral Award are met.
By Arif Mohammed Madani
Recent years, particularly since 2015, have seen certain crucial amendments relating to the law on appointing sole arbitrators. The government amended the Arbitration and Conciliation Act, 1996 (the Act) to include additional Section 12(5) and Schedule VII. Schedule VII saw the addition of certain categories of relationships in order to determine the ineligibility of an arbitrator. Accordingly, as per Section 12(5), any person whose relationship with the parties or counsel or subject matter of the dispute falls under any one of the categories specified in the said schedule shall be ineligible for appointment as an arbitrator. This ineligibility is curable. As per the proviso to Section 12(5), the parties can waive its applicability by an express agreement in writing. This needs to happen subsequent to the dispute having arisen between them.
Based on the above amendments, in the judgements of TRF Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377, Perkins Eastman Architects DPC v. HSCC (India) Ltd., (2020) 20 SCC 760: 2019 SCC OnLine SC 1517, etc., the Hon’ble Supreme Court and various High Courts have laid down that notwithstanding any prior agreement to the contrary, no unilateral appointment of sole arbitrator is permissible, except by specific and express waiver in writing as per proviso to Section 12 (5). The Courts have also laid down that mere participation in proceedings will not amount to any waiver. Section 4 of the Act constitutes a general exception. Hence, the proviso to Section 12(5) is a special law and particularly deals with the appointment and eligibility of arbitrators.
On the basis of the above judgements, the Courts have set aside awards under Section 34 of the Act. They have also dismissed enforcement/execution petitions under Section 36 of the Act on the ground of unilateral appointment of arbitrators.
Thus, it is essential to evaluate various options and proceed with the best one regarding arbitral proceedings.
The available options are as under:
A: To proceed with the existing procedure of unilateral appointment of arbitrators.
B: To approach the High Courts under Section 11 of the Act for the appointment of arbitrators.
C: To administer arbitration from an ADR/ODR institution through an institutional route.
The pros and cons of the aforesaid options are as under:
OPTION A: To proceed with the existing procedure of unilateral appointment of arbitrators
The current appointment procedure leads to the expedient appointment of arbitrators and early disposal of disputes. However, the recent amendments and judicial precedents laid down by the Supreme Court of India and various High Courts have created a legal bar against the unilateral appointment of sole arbitrators.
Courts would continue to allow challenges under Section 34 of the Act and reject executions of awards. This would further aggravate the loss to the company. By the time of setting aside the arbitration award or dismissal of the execution petition, either the limitation to sue would expire or limitation law would bar the claim of the company. The company would have to bear considerable litigation expense in initiating and participating in the arbitration proceedings once again.
OPTION B: To approach the High Courts under Section 11 of the Act for the appointment of arbitrators
Appointing an arbitrator by petitioning the jurisdictional High Court under Section 11 of the Act is the safest method. However, it requires considerable expenditure and is extremely time-consuming. For each arbitration proceeding, a separate petition for the appointment of the arbitrator would be required. The company’s fee schedule for availing of panel advocates’ services in the High Court is INR 11,000 per case. It would also have to bear the same for each of its claims. Besides this, the arbitrator’s fee, if appointed by the High Court, is decided as per Schedule IV of the Act. This would amount to INR 30,000 payable by each party.
After presenting a petition under Section 11 to the concerned High Court, it takes around 2-3 years for the matter to be disposed of. If the trend of appointment by the High Court increases, the heavier burden on courts would also increase this duration.
This alternative, is, therefore, neither economically viable nor efficient.
OPTION C: To administer arbitration from an ADR / ODR institution through an institutional route
Upon enquiry, the Department of Legal Affairs, Ministry of Law & Justice, on 18th September 2020, addressed a notification to all ADR Institutions, including Presolv360, for hosting the list of institutions offering ADR mechanisms (including ODR). Presolv360 has also been empanelled by the Bombay High Court and other Courts as a Mediation Institution.
No company has incorporated a provision of reference to any institution in their loan or arbitration agreement. But the Act provides that the parties can seek administrative assistance to facilitate the conduct of arbitration proceedings under Section 6 of the Act. If the company, with the intent of securing assistance, notifies the opposite party in the pre-arbitration notice under Section 21 of the Act, and if the opposite party does not object to the same, one can regard its omission to object as a waiver under Section 4 of the Act. Thereafter, one may request the institution Presolv360 to register and administer the arbitration proceedings. This waiver is distinct from the specific waiver in Proviso to Section 12(5) of the Act.
Since this waiver comes under Section 4 of the Act, and since the appointing authority is not the company, it does not attract all of the above amendments and judgements, making them inapplicable.
A Commercial Court in Bengaluru, after considering the objections, found this method of appointment of an arbitrator to be correct.
While it is most expedient, safe and proper to incorporate an appropriate clause referring disputes to an ADR/ODR institution such as Presolv360 in the loan or arbitration agreements, for legacy agreements (where including such a clause may be impractical), still the best option amongst all the alternatives would be OPTION C. It will be the safer and more efficient and cost-effective approach. This is perhaps why more than 50 finance companies have been conducting arbitrations through ODR.
Conclusion
It is thus safe to conclude that until an appropriate clause referring disputes to an ADR/ODR institution is incorporated by the company, OPTION C must be adopted for existing claims. To avoid issues with the unilateral appointment of arbitrators, recourse to seeking administrative assistance from an ODR institution must be considered.
Arif Mohammed Madani is a retired district judge with 25 years of judicial experience and over 10 years of experience as an arbitrator.
By Vilasini Pollisetty
In a world with diverse cultures, languages, and abilities, the pursuit of justice should be a universal right. Across the world, societies are working towards recognizing and addressing the unique needs of individuals with disabilities. On September 23rd, the United Nations observed the International Day of Sign Languages. It was a clarion call to recognize the crucial role these languages play in facilitating communication for the deaf community. And also highlights the persistent challenges that hinder full accessibility and inclusion within the legal system, particularly for the deaf.
The Importance of Accessible Legal Aid for the Deaf
Accessible legal aid is a fundamental human right that should be available to everyone, regardless of their abilities or disabilities. For the deaf community, this right is very crucial. Attempting to steer through a complex legal system without the ability to hear or speak can lead to serious injustices.
Fortunately, both the Government of India and private organizations have recognized the importance of addressing these challenges. And have taken commendable steps to ensure that the deaf community can access the justice system effectively.
Paving the Way for Accessibility
The Government of India, through various initiatives, has demonstrated a commitment to making legal aid more accessible to the deaf. One such initiative is the National Programme for Prevention and Control of Deafness, launched in 2008. Its goal is to empower deaf individuals to lead economically and socially productive lives by 2030.
Another noteworthy initiative is the establishment of the Indian Sign Language Research and Training Centre (ISLRTC). This recognition of the importance of sign language is a major step in empowering the deaf community. Since sign language is their primary form of communication.
Section 12 of the Rights of Persons with Disabilities Act, 2017 Act mandates that the Government in collaboration with the National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSA) takes necessary steps to ensure persons with disabilities, including the deaf, can access courts and tribunals.
In February 2023, the Supreme Court Committee on Accessibility announced that it was inviting suggestions from people in the legal profession and persons with disabilities on measures that could be implemented to ensure that the courts are accessible to persons with disabilities including deaf individuals.
All these changes are indicative of an increasingly accessible regulatory environment for people with hearing disabilities. The private sector, particularly online dispute resolution (ODR) service providers, has also played a crucial role in ensuring accessibility. ODR providers recognize the importance of integrating Indian Sign Language interpretation services within their processes for deaf individuals involved in legal disputes.
Legal Precedents: Upholding Deaf Rights in Court
Legal precedents have been set to uphold the rights of the deaf community in India. In the case of National Association of the Deaf Petitioner vs. Union of India (2011). The Delhi High Court issued an order directing the Delhi High Court Legal Services Committee to identify interpreters to assist deaf individuals in court proceedings. This decision emphasised the need for accessibility within the legal system.
The Supreme Court, in State of Rajasthan vs. Darsjam Singh Alias Darshan Lal (2012), acknowledged the evolving perspective regarding deaf and mute individuals as witnesses and allowed witnesses who cannot verbally communicate to provide their testimony through writing or sign language with the assistance of a sign language interpreter. Section 119 of the Indian Evidence Act of 1872 allows witnesses who cannot verbally communicate to provide their testimony through writing or sign language in open court.
We recently also saw the first instance of a deaf-and-mute lawyer being allowed to use a sign language interpreter to argue a case in the Supreme Court.
A Continuing Lack of Awareness
However, despite these judgements and legal precedents, the on-ground reality remains largely unchanged. Many people with hearing disabilities, especially in Tier-II and Tier-III cities and villages, are unaware of sign language and its benefits. Petitions to recognize Indian Sign Language as an official language under the Eighth Schedule of the Indian Constitution have been undertaken, but there is still a pressing gap that requires attention.
Mr. Avnish Kumar Awasthi, from the Ministry of Social Welfare, in an interview pointed out that a lack of knowledge of sign language leads to deaf individuals dropping out of the education system and being unable to benefit from government job quotas meant for them. He advocates for compulsory sign language training for teachers to ensure that deaf students can study alongside other children in regular schools. Such initiatives are critical for creating a more inclusive society.
The Way Forward for Legal Aid
The Government and the private sector have taken initiatives that are promising. Much work remains to be done. One significant step forward would be the development of a universal sign language that can bridge linguistic gaps within India’s diverse deaf community. Such a standardized sign language would ensure that the deaf can communicate seamlessly across regions, enhancing their ability to access legal services.
Furthermore, the creation of a specialized legal dictionary in sign language could be a game-changer. This resource would facilitate the understanding of complex legal terms and processes. Enabling the deaf community to navigate the legal system with confidence. The ISLRTC has already begun this process and can collaborate with private players in the industry to further this initiative.
As we celebrate the progress made in making the legal system accessible to the deaf. We must recognize the importance of continued efforts to break barriers and ensure that every individual, regardless of their abilities, can fully participate in legal proceedings. The country’s judicial system has marginalized people with hearing disabilities for a long time now. It’s now time to take concrete steps to bring them into the mainstream of access to justice.
About the Author
Vilasini Pollisetty is the Project Lead – Hear The Difference at Presolv360. Reach out to her at vilasini@presolv360.com.
Disputes are inevitable in human interaction, occurring in various domains such as commerce, employment, family, and more. Traditional methods of dispute resolution, such as litigation and arbitration, often come with high costs, lengthy proceedings, and limited accessibility. However, with the advent of Online Dispute Resolution (ODR), a new era of resolving conflicts has emerged. ODR is revolutionizing the field of dispute resolution and it holds immense promise for a brighter future.
What does ODR mean?
Online Dispute Resolution (ODR) is a continuously developing concept. In essence, it refers to the utilization of information and communication technology (ICT) tools to facilitate dispute resolution between parties. This involves employing a range of communication technologies, from telephones to smartphones to LED screens, as well as applications like spreadsheets, email, and messaging platforms. The primary objective of ODR is to enable dispute resolution without the physical gathering of the parties involved.
In its initial phase, ODR shares fundamental similarities with Alternative Dispute Resolution (ADR) methods such as negotiation, mediation, and arbitration. Early efforts in ODR have largely replicated ADR processes by employing basic ICT tools.
However, it is important to note that ODR does not mean merely electronic ADR (e-ADR). In more advanced stages, ODR can even function as a fourth party by incorporating algorithmic assistance tools to aid parties in finding resolutions. These technologies can manifest as intelligent decision support systems, smart negotiation tools, automated resolution systems, and machine learning.
Eventually, ODR has the potential to provide customized dispute resolution processes tailored to specific parties and their disputes. By leveraging technology tools, we can design these tailored processes to achieve optimal dispute resolution for all parties involved.
Current Framework in India
In India, the current framework for ODR requires a governance structure for regulation. Relevant legislation includes the Arbitration and Conciliation Act, 1996, the Code of Civil Procedure, 1908, and the Legal Services Authorities Act, 1987, which governs ADR and Lok Adalats.
The Commercial Courts Act, 2015, introduced pre-litigation mediation, while the Companies Act, 2013, allows for mediation in company-related disputes. The Consumer Protection Act, 2019 establishes Consumer Mediation Cells, and the Information and Technology Act, 2000 addresses the technical aspects of ODR.
The Indian Evidence Act, 1872 recognizes electronic evidence, and the Supreme Court has allowed remote conferencing for arbitrator appointments and virtual hearings. Courts encourage the use of technology to reduce overcrowding.
Recommendations for ODR Implementation
ODR has the potential for application across a variety of sectors and opportunities. Here are some important steps to realize this potential:
Bridging the digital gap
To ensure the successful implementation of ODR in India, it is crucial to address the digital literacy gap among the population. Efforts should be made to reduce this gap and provide adequate digital literacy training to the citizens. Additionally, attention should be given to improving digital infrastructure, including access to computers, smartphones, and reliable internet connections for conducting ODR proceedings. Awareness campaigns should also be conducted to educate people about ODR and its benefits.
Regulatory framework
A regulatory framework is essential for ODR implementation because it provides a legal foundation and ensures fairness. Countries have passed legislation recognizing the enforceability of electronic contracts and ODR agreements, such as the ESIGN Act and UETA in the United States. ISO standards such as ISO 27001 and ISO 37301 provide recommendations on information security and compliance management. To secure sensitive information, data protection and privacy protections are incorporated. The enforceability of ODR agreements is emphasized, making them equal to traditional dispute resolution processes, and customer protection laws provide special measures for resolving customer complaints. Accreditation and certification may be necessary to ensure quality and conformity to ethical principles. For compliance, ODR stakeholders should review applicable legislation.
Pre-litigation mediation
Pre-litigation mediation is an excellent suggestion for ODR deployment. It entails intervening early to resolve issues before official legal actions begin. Pre-litigation mediation is inexpensive and quick, allowing parties to avoid the costs and delays associated with litigation. During mediation sessions, confidentiality is preserved, promoting open conversation. Its goal is to keep connections between parties intact, especially when continuing or future interactions are at stake. The process is facilitated by an unbiased mediator, who assists parties in reaching mutually acceptable solutions. Many countries support pre-litigation mediation, emphasizing its efficacy. Overall, pre-litigation mediation provides an efficient, private, and relationship-centred method of conflict resolution.
Standards and principles
Introducing an ideal set of standards and voluntary principles can promote the adoption of ODR among stakeholders. These principles can govern the technology and design of ODR platforms, as well as establish ethical obligations for ODR centres and neutrals. By adhering to these standards, the quality and effectiveness of ODR processes can be enhanced.
Strengthening the business environment
ODR has proven to be a catalyst for improving the ease of doing business in other countries. India can follow the example of the European Union, where merchants are required to inform customers about the availability of ODR. This facilitates stricter contract enforcement, leading to a more favourable business environment and increased investment in the country.
Conclusion
Embracing ICT innovations and ODR is a transformative step for improving dispute resolution in India. It creates a business-friendly environment, enhances accessibility, and streamlines the resolution process. Integration of AI and ML technologies opens new possibilities, improving efficiency and promoting legal health and awareness. The government’s proactive support and cautious approach are essential to maximize the benefits of these advancements and establish India as a leader in efficient and accessible dispute resolution.
An Interview with Mr. Tariq Khan, Registrar, International Arbitration and Mediation Centre, Hyderabad
As the world of law evolves at an unprecedented pace, we find ourselves at a crossroads filled with both excitement and responsibility.
Amidst this evolution, the legal fraternity is witnessing a remarkable shift towards alternative dispute resolution mechanisms. This is not only great for our legal system and the people of our nation but also presents boundless opportunities for aspiring law students and young lawyers alike.
Yet, amidst this whirlwind of change, we must ask ourselves: How do we keep pace with this rapid growth? How do we make the right choices as legal professionals? How can we strive to become the best versions of ourselves in this dynamic environment? And most importantly, how do we prepare ourselves to contribute to India’s journey towards becoming a strong and efficient hub for alternative dispute resolution?
To find answers to these and many more questions, I spoke to Mr. Tariq Khan. A seasoned dispute resolution practitioner with extensive experience in international arbitration practices who currently serves as the Registrar of the International Arbitration and Mediation Centre (IAMC) in Hyderabad. He was appointed Partner at Advani and Co., New Delhi in 2021.
Throughout his career, Tariq has handled over 50 complex arbitrations in diverse industries globally, including construction, infrastructure, energy, joint-ventures, and intellectual property.
As an arbitrator and member of the Chartered Institute of Arbitrators (CIArb, UK), Tariq is trained in mediation from prestigious institutions such as the Singapore International Mediation Centre (SIMC), ADR ODR UK, and Maadhyam. He has also completed mediation advocacy training from the Foundation for Sustainable Rule of Law (FSRL), USA.
Apart from his legal practice, Tariq serves as an Adjunct Professor at NALSAR University of Law and is an author of several acclaimed books on arbitration. He conducts numerous training programs and advises various ADR societies, including the Advisory Board of Thought Leaders 4 Dispute, UK.
Recognized for his contributions, Tariq has been listed in prestigious legal publications such as the Forbes Legal Powerlist and featured in Fortune 500 (India) Magazine. He was also named among the top individual lawyers in the BW (Business World) Legal 40 under 40 list.
Reflecting on his journey from starting with no legal background to becoming one of the prominent legal professionals in the country, this interview is sure to captivate both your mind and your heart!
This interview has been edited for length and clarity.
How would you describe the journey that led you to choose a career in law, taking into account your background and initial aspirations?
In my case, I did not have anybody in my family as a lawyer. I don’t have any legal background, and I hail from a small town in Uttar Pradesh (UP). There was no culture or inspiration related to law. We did not even have good law colleges in UP at that time. Never did I think of becoming a lawyer. I wanted to become an engineer mainly because my father wanted me to become one!
Eventually, it so happened that I could not clear my engineering exam. This was because of the minutiae of mathematics. Maths, I could not! My father then told me that law could be a good option. At that time, I said anything but law!
Nevertheless, I decided to give the entrance exam. But I could not even afford any of the national law university (NLU) exams. The form itself was very expensive. I ended up going to the Faculty of Law, Jamia Millia Islamia. At that time, the fee was INR 4,500. This felt like the best and only choice.
This is why I always say, I Did Not Choose Law, Law Chose Me !
Can you describe your journey to securing a job after graduating from Jamia, and how this path ultimately led you to embrace a career in arbitration?
Jamia did not have any placement or alumni network. Due to this reason, it was very difficult to get a job, and at that time, there was a lot of debate and disparity between NLU and Non-NLU’s. Now I don’t see much difference. At that time, it was very difficult to even send your CV without any recommendation because in law, it usually works through word of mouth – you need somebody to put you somewhere. Sending an email is not enough, and I got used to getting rejections.
The only place that I got an opportunity was at Advani Law LLP, which was doing a lot of arbitrations. I was interested in doing in criminal law, but because arbitrations were the only opportunity I got and I had to take care of expenses, I took it. Otherwise, I had to go back to UP.
I had to sign up for this, and I started enjoying arbitrations because Advani was doing arbitrations day and night. Then I just thought, I had to put in my 200%.
That is why I say again, Arbitration Chose Me, I did not Choose Arbitration.
That’s why I tell people, they should let destiny make the plans for them because they are sometimes better than the one’s we have planned for ourselves.
What a journey! Could you share your perspective on the emerging alternative dispute resolution mechanisms, particularly in light of your advocacy for mediation and arbitration as primary modes of resolving disputes over litigation?
I have been discussing this topic in my writings for the past 6-7 years, and I am pleased to see that people have started engaging with it. As long as we continue to label it as an alternative, we are merely treating it as such and not as a primary mode of dispute resolution. Today, I would like to emphasize that it should not be considered just a preferred option; it should become the primary mode of dispute resolution.
An even more critical question to consider is: Why do we only refer to it as preferred? Why can’t we begin to call litigation the alternative or the last resort?
In my opinion, mediation should be the first step, followed by arbitration, with litigation as the third option. That’s the direction we should be heading.
Moreover, I strongly believe that we should start focusing on Dispute Avoidance.
Why should disputes arise in the first place? Why shouldn’t we address them at an earlier stage? We should provide training to in-house counsels and individuals in the corporate world in negotiating and conflict management. The focus should shift to this aspect rather than waiting until a dispute arises.
Why shouldn’t we address conflicts when they are just beginning to emerge? That’s the question that needs to be addressed.
Coming back to the dispute resolution mechanisms, the shift has been insane.
Arbitration has seen significant developments following the 2015 amendment. Over the past seven years, we’ve witnessed remarkable progress, particularly in terms of timelines. This reduction in the time taken for arbitration proceedings has had a profound impact. As interference in the award has decreased, more people have begun opting for arbitration, leading to an overall improvement in the landscape of dispute resolution.
Furthermore, similar advancements have been observed in the field of Mediation. There’s been a notable increase in the number of trained mediators, and significant advocacy efforts by the Supreme Court and Chief Justices regarding the importance of mediation and its role in resolving disputes.
The emergence of new institutions like the IAMC is also indicative of this cultural shift. Additionally, discussions around institutional arbitration have gained traction, which is a promising sign for the future of dispute resolution in India.
Overall, I am optimistic about the direction in which our dispute resolution culture is evolving. The developments seen in the past few years indicate a positive trajectory, and I believe that with continued efforts and support, we can further strengthen and enhance our dispute resolution mechanisms.
That is something to look forward to indeed! As someone who has experience working both with and within arbitral institutions, how would you describe the essential role of these institutions in driving the growth of alternative dispute resolution (ADR), particularly in the context of fostering investment and creating a favourable business environment?
Every jurisdiction with an arbitral institution aspires to become a hub of investment. And for becoming a hub of investment, the sine qua non is having a robust dispute resolution mechanism.
Because when an investor wants to invest millions of dollars in your jurisdiction or a state, they want to know the approach of the courts of that state. They want to know the law, and they want to know that if tomorrow my money gets stuck in a dispute, which is inevitable in these contracts, they want to know how the money will come out, “will I ever be able to see the colour of my money.”
So, this is where arbitration becomes instrumental, allowing us to project that “look, we have a world-class, powerful, and progressive institution” wherein we have invested in infrastructure to develop an arbitration landscape on par with that of Paris, Singapore, Dubai, and London. These jurisdictions are increasingly preferred by investors because they know that when disputes arise—which are unavoidable—they can rely on the courts of these countries, which are pro-arbitration, pro-business, and pro-enforcement.
Nobody would want to take that kind of risk. If we consider the best international norms and quality and ease of doing business in a country, it is about understanding how it enforces contracts, arbitrations agreements, implements awards, and recognizes foreign awards, as well as the efficiency of these processes.
When you are able to give this kind of message to the international community, I believe that is where the international arbitration and mediation centres make a jurisdiction, a global hub for business and create an overall credible and admired ecosystem, where all the stakeholders feel comfortable and happy, and they are more than willing to do business there.
In addition to enhancing the business ecosystem, improving access to justice through the dispute resolution regime is crucial, especially considering that a significant portion of the population in the country lacks access to effective dispute resolution mechanisms.
How would you propose making the regime more efficient to address this access to justice gap and ensure that a wider segment of the population can benefit from timely and effective resolution of their disputes?
That is a pertinent question! Let’s talk about Hyderabad for example, initially it was not considered as a hub for arbitration but now people are talking about it.
I believe a very important role is played by the ecosystem that is created. It is not just physical infrastructure that is required. You need proper legislation, which we have in our country. Following that, you need a supportive court with a pro-arbitration approach, and in the case of mediation, a court that complements and supports dispute resolution by utilizing these methods. Additionally, you need judges who have this kind of approach because sometimes we see there is a lot of reluctance to send matters to arbitration and mediation by the court, which has also changed with time.
Moreover, you need support from the government, which is very important. Subsequently, you need a series of training, awareness programs, conferences, and events. Once you conduct these kinds of trainings, that culture starts growing, and it’s more of an ecosystem where every factor, every institution is dependent on each other. It is not a single effort; it is a collective effort. The state, legislature, courts, and then people in the field who are experts should come and run it. It should not just be bureaucrats running these institutions.
Afterward, you should reach the grassroots level. Identify the problems of the common man and simplify it for them. Promotion and visibility are important. Because when people start seeing something, that’s when they know. Unless they are aware, no matter what kind of rules are in place, they will never be able to avail it.
Additionally, framing of rules and laws is one thing and accessibility is another. The system has to be cost-effective and easily accessible and simple so that even a layman or a common man can consider that this is the place where I can get my disputes resolved.
Lastly, credibility and integrity come into the picture. Courts are trusted by people. Similarly, they should be able to trust these institutions. Transparency and credibility are very important. Whatever you do, you should publish it. You should inform people that you are doing this. Go to the grassroots level, get the best experts from the country to do the trainings, and it is a long effort – it is not something that will happen overnight, but after 3-5 years, you will see the real difference.
You mentioned the idea of making a “real difference.” In that context, what is your perspective on the role of law students in contributing to the growth of Alternative Dispute Resolution (ADR) and actualizing this “real difference”? Additionally, how do you envision the future of law students in this field?
I believe law students have one of the most important roles to play in the growth of ADR. Some people tell me that to some extent, I have been able to contribute to the growth of ADR. I tell them I am doing nothing; I am just getting it done through the law students because they are the soldiers of ADR. They are the ones who are actually setting up these ADR Cells, doing a great job, and coming up with so much rich content.
These institutions, and the kind of excitement that is there in the students regarding ADR, are compelling colleges to get good faculty and introduce this in their curriculums. Not just that, diplomas are being introduced. The students are evolving in the field of arbitration and mediation. Many of these students are also getting trained to become mediators.
Their enthusiasm is actually growing the market, and the future is with them. The torch will burn brighter when it is in their hands. Investing in us is not enough; investing in them should be the priority. Just imagine how fascinating it will be to have the next generation with 70-80% of people in favour of mediation. There is nothing wrong with litigation, but having the approach and mindset of resolving disputes through mediation is crucial. Law students will indeed play a crucial role in the growth of ADR.
That is truly a great answer! But one question here is, on one end are these endless possibilities in the world of ADR and on one end lies the the notion that courtroom litigation is the pinnacle of legal practice. Is appearing in court truly the essence of being a lawyer? Furthermore, how does the practice of alternative dispute resolution (ADR) fit into this narrative?
It’s simple! One aspect is to stop caring about what others feel. I think our definition of success and validation is often influenced by others’ opinions. Many people questioned me when I left partnership, asking why I was putting my life on hold or why I was shifting from Delhi to Hyderabad. Now they say it in a different way. It is completely what you want in life and what makes you happy. If someone wants to do arbitration, it should not matter what the others have to tell them- you know why don’t you go to the court.
Moreover, there is so much that you can do with a law degree now. It has become incredibly fascinating and international, especially for transactional and arbitration lawyers. The world is your playground.
Additionally, if you are involved in arbitrations and mediations, you will also engage in court work. For instance, in arbitration, filing for the appointment of an arbitrator requires Section 11, filing for interim injunctions requires Section 9, challenging arbitration awards involves Section 34, and removing an arbitrator involves Section 14. It’s not the case that if you are doing arbitration, you won’t go to court; these are intertwined – the wheels of the same vehicle. They are interdependent. It cannot be that I am just doing arbitrations.
But I would still encourage the idea that the time has come, keeping in mind the growth and demand, for full-time arbitrators and mediators. We should be proud to say, “I am a full-time mediator” or “I am a full-time arbitrator.” With the new laws coming into effect, there is a surge in work. How do we meet the demand for growing mediation? There is a lot of demand but not enough quality mediators to meet it.
Students should see that there are opportunities everywhere, it is what you want to do. Mediation has picked up and if law students are smart, they will start working in that direction.
You were at the peak of your career, a partner at a prestigious law firm, achieving everything that many lawyers dream of when they enter the legal profession. Despite this, you chose to leave and shift to Hyderabad to take up an indeed great role of Registrar at the International Arbitration and Mediation Centre [IAMC]. What motivated you to make this choice, and how has it worked out for you thus far?
I was fortunate and very happy working with Advani, and the kind of opportunities I was getting and the matters we were handling. Delhi is a beautiful market and a great place for litigation. Everything was great, and yes, it was the peak of my career. I would say I was the youngest to be appointed as a partner in the firm, heading the Delhi office.
I have always been someone who has talked about institutions not doing a proper job. In my article titled ‘Making India a Hub of Arbitration’ – Myth to Reality, I have given 10-12 compelling reasons why India is lacking. As a partner at the firm, I could not do anything about it. This was one such opportunity where I could have made a big difference. Instead of just talking, I could have actually played a role.
I am somebody who is really passionate, and I feel that I have a vision for the country. I really want to do something for our country, our people, and our young lawyers. I thought this would be the opportunity to give me that playground to do all that I want to do, and then I will never feel that I didn’t do anything. At least I will give it a try. If I am able to contribute to making India one of the hubs of arbitration, if I am able to contribute to the growth of institutional arbitration culture, there is going to be so much direct and indirect employment opportunities being generated, and the culture which will grow will benefit many students and other two-tier cities. I wanted the focus to shift from Delhi andMumbai to other cities.
What I learned in Delhi, I have started using all that to grow other cities around. That is completely remarkable. The journey of IAMC has been remarkable. The people who were saying “what have you done” are now saying “you are lucky”. Same people.
As long as you are willing to put in your 200%, I think wherever you go, you will shine. You need to be the light!
I just know one thing. In my case, law happened accidentally, arbitration happened accidentally. I never imagined that I would move out of Delhi. I got job offers from foreign law firms. Delhi was a city I was in love with. But I realized that I needed to get out of my comfort zone. When I became a partner, I was super comfortable, everything was perfect. The beauty of life is experimenting, and something good comes out of it. Destiny also has an important role to play.
There are times when I miss my friends in Delhi, I miss the work. The kind of work that I am doing, the best part is that you are building an institution, you are getting the responsibility of one of the leading institutions in the country. The kind of support, infrastructure that I work with has been amazing.
God has been too kind to me!
Finally, law can be a tough profession even at the best of times, and all this change and uncertainty is bound to add additional stress to lawyers’ lives. What can lawyers do to take care of their mental health in such turbulent times?
My message is simple: No matter how strong a person looks, everyone has been in that boat; we all have experienced it. I have been there too. I have felt anxious, and there were times when there was a dead end in my career—no money in my pocket, wondering where I was headed. All these questions used to haunt me every day, and it was difficult to even sleep. I literally felt mentally unsettled.
But I want to tell anyone who feels like that: at the end of the day, it’s not the destination that matters; it’s the journey. It’s the hard work you put in. As long as you are giving your 200%, when you burn like the sun, you will shine like it. There is no reason for you to fail. Yes, it will take time, it will not be easy. But there is no reason for you to fail if you are putting in all the hard work, and your intentions are honest.
Mental health is serious; you never know what battles a person is fighting. We should be there for each other. COVID made us realize the importance of having people around us.
Do not let others determine your success, your worth. Have your own definition of success and do what makes you happy. There is no substitute for hard work—don’t look at others, don’t compare yourself with others. One very important point: if you are not doing great, they will look down on you. If you are doing decently, they will avoid you. If you are doing great in life, they will hate you. So, no matter what you do, you cannot please people—do not seek approval from others.