This summary is written by Yash Singhal, from Vivekananda Institute of Professional Studies, GGSIPU.
‘Arbitration and its scope after lockdown’ webinar by LawSikho with Abhyuday Agarwal, Rajni Iyer and Ruchika Motwani provides deeper insights into the field of Arbitration while delving upon its scope after lockdown when everything would never remain similar to what it was before the lockdown.
Description of the Guest speaker
Mrs Rajni Iyer is the senior counsel at the Bombay High Court. She was appointed to this position in 2006, becoming only the third women senior counsel at the High Court since 1991. She has been a keynote achiever in the field of Arbitration after realising her passion for Cross-Examination. Her family has a legal background with her father practising criminal law, being a junior under Mr K.M. Munshi after receiving training under his guidance. She decided to pursue law after witnessing the emergency situation in 1975. She graduated from Government Law College, Bombay in 1978. She has been a part of some high profile cases such as Antulay case in 1978 and Maharaja of Baroda deceased property case, under the able mentorship of Ashok Desai.
Description of the Moderator
Abhyuday Agarwal is the co-founder of the legal platform, LawSikho. He along with Ramanuj Mukherjee started the chain of legal platforms to make the legal profession accessible to everyone. He graduated from West Bengal National University of Juridical Sciences in 2011 and ventured with various startups such as SuperLawyer, LawSikho, iPleaders and CloudTrain. He has written numerous articles, blogs, research material all across the internet on multiple topics associated with the law.
Excerpts of the Webinar
What was your thinking behind pursuing law?
(Rajni) I wanted to learn everything about the national emergency in 1975 which was possible only through thorough knowledge of the law. I did my solicitors when I realised that I could not do a table job. I was fortunate enough to be working in the chambers of Mr Ashok Desai. At the time when I started my career, arbitration was restricted to suits and cross-examination when evidence was not available with the court, so the prospect of cross-examination drove me towards arbitration.
What are the important aspects of the trial and the online arbitration procedure?
(Rajni) The Evidence Act was strictly considered while deciding cases. They applied the statute to every trial, even in arbitration. The absence of exclusively qualified arbitrators was an issue. The impact of the pandemic would be a three-fold – arbitration agreement would not get violated, online dispute resolution would be introduced, limitation on the extent of types of evidence in online mode. The procedure of arbitration cannot be maintained in an online mode until warranted by the arbitrators themselves to continue online.
What are the probable issues that could arise in arbitration post lockdown?
(Rajni) The breach of contracts in an arbitration falling within the lockdown, according to the terms of the contract, would be decided by the arbitrators as to its jurisdiction and liabilities after reading of the terms. The parties might allow mediation to mitigate losses by approaching any appropriate professional. The breach shall be taken under the Force Majeure clause and some respite to both parties. The factors to be considered in cases of obligation to fulfil part of the contract.
How Section 16 of the Arbitration and Conciliation Act operates without leading to inconveniences?
(Rajni) Section 16 allows the Arbitration Tribunals to decide on what matters to take under their jurisdiction. They have the discretion on recording evidence available in the case before pronouncing any judgement. The challenge on the jurisdiction by the parties against the arbitrators can be accepted only after the completion of the trial and not in between. It all depends on the way it is approached by the arbitrator and the parties.
What are the substantive areas where lawyers can prepare themselves to counter the lockdown situation? One aspect could be Force Majeure in the contract law and the trial on online modes.
(Rajni) It has to be observed that whether the breach of contract occurred prior to the situation or did the contractual obligations arose during it for it to qualify under the Force Majeure clause. It also has to be noted whether a waiver was awarded before the lockdown to determine the mitigation by mutual agreement on part of both parties or legal sanctions against the party breaching its obligations. The terms of the contract along with the knowledge of everything must be there by the expert. The skills need to be developed on the basis of the branch of law you are addressing. The young lawyers need to convince their clients to prevent litigation and promote arbitration.
How do we substitute courtroom adrenaline of dealing with situations at that particular time with something like arbitration?
Law schools nowadays have numerous moot court competitions where young law students are trained to think on their feet and also many online moots as well.
(Rajni) I agree that the thrill of thinking on the feet in the courtroom has other perks of its own which cannot be substituted. (on online court proceedings) the apparatus for the video conferencing is not suitable with all the preparations to be made that need primary requirements such as technical preparations and most important being confidentiality maintenance. (on drafting fallacy) the legal drafts should be prepared keeping in mind the purpose of the draft and for whom it is drafted. The content of each contract for different purposes would be separate. The basics should be brushed up during this break.
What approach would you suggest to the young lawyers- encouraging them to explore new domains or work with some seniors?
(Rajni) The problem with the issue is two-fold- the client’s office is the reflection of the functions of his business. The lawyer is a representative of the client as well as the court of law, with the dilemma between revealing the truth in court or to protect the client at all costs. The lawyers in some circumstances are not aware of the business of their clients until it is their need to know about it. (on disclosure of information) The disclosure of the information would be against the interest of the client with the fulfilment on the lawyer’s obligation to reveal the truth to the court of law.
How will institutional arbitration help during the pandemic in dispute resolution?
(Rajni) There are two types of arbitrations- Ad Hoc Arbitrations and the Institutionalised Arbitrations. The cost constraint will drive the individuals towards institutional arbitration for the sole reason being that the Ad Hoc arbitrations are costly. The institutional arbitrations would be promoted by the lawyers and the judges. They will be a norm after the pandemic.
How can we continue arbitration in new emerging areas with the probability of lack of precedents?
(Rajni) We can have a situation of lack of precedents but then we have to start from somewhere. The expert in the field, during an absence of the precedents, would be arbitrating at the Tribunal. The expert with the legal background would be able to give reasons behind every observance and this is how precedents are developed. The institutional arbitration will be helpful as the arbitrators would have the knowledge of how it operates. We need to build up our own local precedents.
What would be the necessary tips you would want to give a law student interested in arbitration? How to go about the process of preparing for Arbitration as a career option?
(Rajni) I would recommend reading Justice Indu Malhotra’s book. You should always go for general laws practice in a court to know the basic operation of the law. Always know about a court of law before entering the field of arbitration.
(Abhyuday) There are various executive courses on arbitration available on the LawSikho website which can be consulted. You should prepare yourself for the mix of fields. We are adding material to our course material for deeper insight on arbitration.
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