There is no denying that with time, alternative dispute resolution methods have gained a lot of popularity. This is particularly so in the case of Arbitration.
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing Arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
Advocate Tariq Khan gives us insights into Arbitration as a career path and the emerging trends in the sector: a highly educative read for Arbitration aspirants and law students who would like to learn more.
1. Please tell us a bit about yourself.
I am a Principal Associate at Advani and Co. I deal in international and domestic arbitrations, MSME disputes, writs, commercial, employment, insolvency, and bankruptcy laws. I have handled arbitrations under SIAC (Singapore International Arbitration Centre) Rules, ICC (International Chamber of Commerce) Rules, DIAC (Delhi International Arbitration Centre) Rules, ICA (Indian Council of Arbitration) Rules, etc.
I have also taught ADR as a guest faculty for the past six years in top-ranked law colleges in India including the Indian Law Institute (2016-2018), National Institute of Finance & Management (2020-present), Lloyd Law College (2018-Present), etc. I am frequently invited by bar associations of several districts and law colleges to deliver lectures on Arbitration.
I have also written more than 50 articles on Arbitration, which have been published by various journals and popular legal news portals.
I was recently recognized as the Youngest BW (Business World) “Legal 40 under 40”, 2020.
2. Was it in law school that you decided you want to pursue a career in Arbitration, or was it after passing out? How did you arrive at this decision?
I did not choose Arbitration as a career; Arbitration chose me. If I’m totally honest, during my college, I did not have any idea about Arbitration as I had not studied Arbitration as a subject since it was not a part of our syllabus. During my final exams, I applied for a job at Advani and Co., the oldest law firm specializing in India's arbitration practice. Since then, I have been working closely with the firm's managing partner Mr. Hiroo Advani and Mr. Shashank Garg (Partner, Delhi office).
I unintentionally started laying the groundwork for my career in Arbitration when I joined Advani & Co. However, this initial involvement motivated me to pursue a career in Arbitration. I must add that my approach was to learn as much as I could about International and Domestic Arbitration and to begin to network with those already practicing in the field of Arbitration.
3. What are your views on Arbitration in India? How has this domain changed in the past five years?
Despite the existence of various arbitral institutions, institutional Arbitration in India remains in a nascent stage, which is evident from the fact that almost 90% of arbitrations in India are ad hoc. The main reasons for parties being reluctant in approaching these institutions are lack of awareness about the advantages of institutional Arbitration over ad hoc arbitration, outdated rules of procedures, and poor infrastructure.
To ensure an efficient arbitral mechanism and see it grow substantially in the near future, young lawyers' appointment as arbitrators must be encouraged.
The government has taken steps to make India the hub of International Arbitration. However, a larger issue has been missed, i.e., why India is languishing for decades and has not become an arbitration hub. In my view, the emphasis is put only on cities like Delhi and Mumbai, and that the concerns of other towns that need an arbitration culture and institutions are not addressed. We must also promote arbitration culture in Kanpur, Lucknow, Ahmedabad, Kolkata, Jaipur, etc. if we want to make India a hub of Arbitration.
Additionally, we must also learn from the development of the best three arbitral institutions, i.e., ICC, SIAC, and LCIA, that have a huge number of cases, growth in revenue, etc. (e.g., SIAC's case filings have increased by over 300% in the last ten years). Therefore, arbitral institutions in India must adopt modern rules, make effective use of technology, and provide an organized structure of proceedings, excellent administrative support, and good infrastructure. Additionally, ease of doing business in India also needs to be facilitated to provide a solid base and ensure longevity. Not only will it make India the hub, but it also creates a dynamic arbitration culture.
Stakeholders will also have an important role to play in shaping up the future of Arbitration in India. For instance, lawyers must understand that the practice of challenging every arbitral award must be discouraged, and the focus should not be on getting more work from one client by filing frivolous challenges to the award. Instead, we must focus on making Arbitration more effective, which will eventually generate more work as there will be more investment.
4. Did the fate of Arbitration change during the Pandemic? Did the number of arbitration matters increase post-COVID-19 Crisis?
The COVID-19 Pandemic created a chaotic situation concerning timelines and schedules in arbitration matters all across the globe. Physical hearings have been taking place for a long time, and that’s why we are used to it. If you see Arbitration's journey and how it has progressed, it has been evolving from time to time. Suppose you compare how arbitration hearings were conducted fifteen years ago. In that case, there is a total paradigm shift depending on various exigencies, including the introduction of concepts like emergency arbitrations, fixed time period, arb-med-arb, med-arb, etc., for making arbitration mechanism more effective and suitable for parties. From that perspective, we must take virtual hearings as a development rather than seeing it as something that has been imposed on the parties.
As far as the negative impacts are concerned, I feel that in many arbitrations where the record is voluminous, especially during cross-examination, the witness will have to be confronted with various documents. A physical hearing will be desirable. Other negative impacts can be that the arbitrator may not see the witness and the examiner's conduct during cross-examination the way it can be seen in a physical hearing. Further, many lawyers and arbitrators are not proficient in technology, making virtual hearings very inconvenient. Nevertheless, wherever possible, I feel virtual hearings will be more convenient and will make Arbitration a preferred dispute resolution method in India.
5. What are the emerging trends in Arbitration post the Pandemic that you are witnessing?
This Pandemic has called for various changes, including conducting virtual hearings. To ensure resolution of disputes, certain proceedings were conducted using virtual mediums. However, there have been multiple issues in virtual hearings, especially in cases where evidence was being recorded. In a case, the parties refused to go ahead with cross-examination via video conferencing. In some cases, after the evidence was recorded, the counsel requested the tribunal to disregard the testimony as the cross-examination was not recorded properly.
Even before the Pandemic came into existence, the need to adopt technological advancements was relevant and growing to save time and costs. Transcription services in arbitration hearings are very common in international arbitrations as it saves a lot of time.
Since nobody was prepared for the Pandemic and nobody anticipated that virtual mediums would become the primary tool for conducting hearings, there is no robust virtual setup or proper guidelines for conducting such hearings. Technologies that ensure accuracy and help conduct face-to-face interactions between parties, witnesses and arbitrators, without malfunctions and setbacks, need to be developed.
6. In the upcoming years, do you think there is a chance of Arbitration becoming the most preferred mode of Dispute Resolution, even more than Litigation?
Most definitely, yes! Fali S Nariman, one of India's most distinguished constitutional lawyers once quoted that “the future of arbitration is bright because the future of litigation is not.” Arbitration is increasing day by day as many fresh law graduates and even practicing lawyers are moving towards Arbitration.
Party autonomy, flexibility, confidentiality, and time-bound resolution of disputes are the key reasons why Arbitration has already become the preferred mode of dispute resolution. In almost every commercial contract, we see Arbitration's dispute resolution, which shows that Arbitration has become a popular choice. Especially foreign investors who invest billions of dollars in our country and prefer that a dispute arises, it is resolved expeditiously.
7. How different is having a career in Arbitration from one in Litigation here in India?
Litigation in India is more technical, complex, and revolves primarily around the law's procedural aspects. In contrast, Arbitration is very flexible, less technical, and strict rules of evidence and procedure do not apply. Unlike Litigation, where parties have very little role to play, Arbitration is pyramided on the concept of part autonomy, which means freedom of parties. Thus, parties decide how they want to resolve their dispute and who will resolve it. Therefore, a career in Arbitration is very different from having a career in Litigation. More indulgences may be given to a seasoned lawyer in a court of law since he would have command over the procedural laws.
Contrary to that, in Arbitration, even a young lawyer can make a mark as it is not technical and depends substantially on a particular case's documents and merits. Arbitration is very convenient as the timing can be fixed according to availability, unlike protracted Litigation. A matter is taken upon its turn. It cannot be denied that Arbitration and Litigation go hand in hand as Arbitration from time to time has to approach the court for seeking interim reliefs, appointment, and challenge to the arbitrator, challenge to the award, enforcement, etc. Therefore, an arbitration practitioner will eventually have to practice in courts as well, even in relation to an arbitration matter.
8. What is your suggestion to law students/freshers who are seeking to make a career in Arbitration?
The harder you work, the luckier you will get. There is no substitute for hard work. Believe in yourself and focus on possibilities rather than on limitations.
During their internships, I believe law students should put in two hundred percent efforts in whatever task is assigned to them. These efforts will be acknowledged and appreciated and will eventually help in securing a position in the most prestigious law firms in India. Needless to say that smart work coupled with hard work is the ultimate combination.
These days, young aspirants have so many opportunities to make a niche for themselves, including but not limited to writing articles on essential aspects of the law. If a student is interested in pursuing a career in Arbitration, he could actively participate in arbitration conferences associated with groups like Young ICCA, ICC YAF, YSIAC, etc. Attending these conferences and joining such groups help not only in gaining practical knowledge and technicalities but also help in building connections.
Additionally, participate in the best Moot Court Competitions involving your area of interest, attend conferences and events (either as a participant or volunteer), join diploma or online courses in specialized subjects, read important judgments and articles which will keep you updated.