The International Centre for Dispute Resolution (‘ICDR’) announced its inaugural India Conference, which took place on 19-10-2024, in Delhi. This landmark event featured a dynamic program focused on critical topics in international commercial arbitration. Distinguished leaders in the field guided discussions on the impact of geopolitical forces on dispute resolution, the intricacies of institutional arbitration in India, the strategic role of emergency arbitration in securing interim reliefs, and the evolving influence of artificial intelligence on global dispute resolution. Attendees had the unique opportunity to explore innovative practices and network with esteemed colleagues. The conference was an insightful and engaging experience for all participants.
The conference started on a positive note with impactful opening remarks by Mr. Tejas Karia, Partner and Head of Arbitration at Shardul Amarchand Mangaldas. His insights set the tone for an engaging day, highlighting the significance of the discussions ahead and the importance of collaboration in the field of international commercial arbitration.
He emphasized that this conference marks the first of many to come, highlighting its significance and timeliness in the context of India’s arbitration ecosystem. Mr. Karia noted that we are at a pivotal moment, working towards elevating the arbitration landscape by establishing the Arbitration Bar of India and implementing essential legislative changes. He underscored that the goal of both domestic and international arbitration is to provide efficient, speedy, and cost-effective resolutions to commercial disputes.
“The point is, we are at the cusp of entering the realm of arbitration as it is practiced internationally,” he stated.
He further mentioned that to achieve this, it is crucial to create an environment where lawyers are adequately trained, which can be supported through court and legislative reforms.
“By establishing the Arbitration Bar of India, we have taken a significant step towards professionalizing arbitration practice in the country, paving the way for a robust full-time arbitration profession”, Mr. Karia remarked
The keynote address was delivered by Prof. George A. Bermann, a distinguished professor at Columbia University School of Law. A major focus of his talk was on “twilight issues”—recurring challenges that often arise during arbitration but lack adequate guidance.
Read his complete speech here to explore his insights on the ‘twilight issues’ in arbitration and the challenges they present.
The fireside chat began with the topic “The Global Chessboard: Geopolitical Forces in International Commercial Arbitration,” moderated by Ms. Bridget M. McCormack, President and CEO of AAA-ICDR®. The discussion featured esteemed speakers Justice P.S. Narasimha and Justice L. Nageswara Rao of the Supreme Court of India. They explored the intricate ways in which geopolitical dynamics influence international commercial arbitration, offering valuable insights into the challenges and opportunities faced by practitioners in this evolving landscape.
Starting with Justice Rao, Ms. Bridget questioned the impact of international arbitration on the Indian economy. He explained that there is an accepted theory suggesting that international arbitration facilitates foreign direct investment (FDI) into countries. He noted that FDI has improved in India, highlighting that the Indian economy has been performing well over the past few years. Justice Rao pointed out that the Parliament is reforming the arbitration act to make India a more arbitration-friendly country, viewing this as a facet of the nation’s growth. He also mentioned that the Supreme Court is taking a proactive role by passing various judgments to support this initiative.
He added that statistics indicate that India is transitioning from being a capital-importing country to a capital-exporting one, illustrating the significant progress that has been made.
Turning to Justice Narasimha, Ms. Bridget asked about the registration and regulation of foreign lawyers and law firms in India and how this regulation is shaping the arbitration landscape. Justice Narasimha responded that in the context of globalization and the cross-border provision of goods and services, disputes are inevitably arising. He explained that the regulation serves two purposes: it enables foreign lawyers to register in India, provide opinions, and assist clients, while also allowing local talent to collaborate with them and enhance their skills. He emphasized that this should not be viewed negatively, as it benefits both local and foreign lawyers.
Justice Rao supported the view of Justice Narasimha, affirming that the regulation of foreign lawyers not only enhances the arbitration landscape but also fosters collaboration between local and international legal professionals.
Back to Justice Rao, Ms. Bridget noted that while India has improved its global ease of doing business ranking, there remains room for improvement in efficient contract enforcement. She asked how critical a robust dispute resolution ecosystem is to India’s investment climate, and whether institutional arbitration, as opposed to ad hoc arbitration, could be a potential solution for resolving disputes efficiently.
Justice Rao responded that India is a large country with diverse challenges. He emphasized that enforcement of contracts is crucial, and that effective dispute resolution plays a significant role in that enforcement. He highlighted the need to expedite the resolution of commercial matters and advocated for the improvement and encouragement of institutionally conducted arbitration. This, he argued, would make India a more attractive destination for dispute resolution.
He acknowledged the complexities of the current geopolitical landscape, noting that sanctions and tensions could impact institutions involved in arbitration.
Continuing the discussion, Justice Narasimha emphasized the importance of building an arbitration culture in India, underscoring that fostering a strong framework for arbitration is essential for long-term growth and confidence in the legal system.
Panel 1 titled “Ad-hoc or Institutional Arbitration: Indian Perspective” featured a diverse group of experts discussing the nuances of ad-hoc versus institutional arbitration in the Indian context. Speakers included Ms. Smitha Sehgal, DGM (Legal) at Engineers India Limited; Mr. Ajay Bhargava, Partner at Khaitan and Co.; Mr. Thomas Snider, Partner and Head of International Arbitration at Charles Russell Speechlys in Dubai; Justice Nageswara Rao, Independent Arbitrator; and Ms. Aastha Chawla, Director at AAA-ICDR. Moderated by Mr. Shashank Garg, Independent Counsel and Secretary of the Arbitration Bar of India, the panel provided valuable insights into the advantages and challenges of both approaches, highlighting their alignment with India’s evolving arbitration landscape and the implications for future dispute resolution practices in the country.
Mr. Shashank Garg initiated the discussion by posing a question to Justice Rao about why parties in India still prefer ad-hoc arbitration over institutional arbitration.
Justice Rao noted that institutional arbitration has been encouraged in India for the past decade, particularly following the Justice Sri Krishna Committee report, and acknowledged that the legal framework is evolving with new institutions emerging. Despite the clear advantages of institutional arbitration, he pointed out that the majority of arbitration cases in India remain ad-hoc.
He emphasized that the reasons for this preference are not easily identifiable. Justice Rao highlighted the importance of fostering confidence in arbitration institutions among consumers and law firms, stressing the need for a cultural shift to promote institutional arbitration more effectively in the country.
Continuing the discussion, Shashank Garg questioned Ms. Smitha Sehgal about the reasons behind the approach of Public Sector Undertakings (‘PSUs’) concerning international arbitration. She responded by highlighting that, over the years, the notion of party autonomy has become a myth; when shifting reliance from the Court to an arbitrator, the factor of accountability becomes crucial. Ms. Sehgal emphasized that arbitration is fundamentally linked to the dispensation of justice, asserting that any award enforced must be just and fair. To achieve just and equitable outcomes, she argued that institutional arbitration needs to develop stronger solutions.
Carrying forward, Shashank Garg posed a question to Ms. Aastha Chawla, seeking clarification on how institutional arbitration maintains a balance between party autonomy and the appointment of unbiased arbitrators. Ms. Chawla emphasized that the appointment of an arbitrator is the most important aspect of arbitration, asserting that parties must have confidence in the tribunal. She elaborated on the appointment process within the ICDR, highlighting its structured approach and the benefits of institutional arbitration over ad-hoc arbitration.
Posing the next question to Mr. Ajay Bhargava about why parties often prefer ad-hoc arbitration, he explained that India has traditionally been an ad-hoc arbitration-based country, with institutional arbitration gaining traction primarily in international cases. He noted that institutions emerged much later in the process. Parties tend to choose ad-hoc arbitration due to a mindset rooted in the desire to select their arbitrator.
When advising clients on whether to choose ad-hoc or institutional arbitration, Mr. Bhargava emphasized that the first step is to assess the nature of the dispute before offering guidance. He acknowledged that they do recommend institutional arbitration but stressed that, in practice, ad-hoc arbitration remains the norm, while institutional arbitration is more of an exception.
Continuing further, Mr. Shashank Garg posed a question to Mr. Thomas Snider about when he noticed the international shift from ad-hoc to institutional arbitration. Snider pointed out that this transition is quite recent, particularly highlighting the example of Saudi Arabia. He noted that the shift from ad-hoc to institutional arbitration is primarily driven by the emergence of reliable local institutions. This development is fostering greater confidence in institutional mechanisms, making them more appealing for parties seeking arbitration.
The panel continued the discussion with a series of insightful questions and answers, delving deeper into the dynamics of ad-hoc versus institutional arbitration. Each panelist shared their perspectives, addressing the challenges and benefits associated with both approaches.
Panel 2 titled “Seeking Interim Reliefs through Emergency Arbitration”, focused on the vital topic of seeking interim reliefs through emergency arbitration, featuring a distinguished lineup of speakers, including Mr. Darius Khambatta, Senior Counsel; Mr. Francis Xavier SC, Regional Head of the Dispute Resolution Group at Rajah & Tann Singapore LLP; Ms. Anuradha Dutt, Founder and Managing Partner of DMD Advocates; Ms. Varuna Bhanrale, Partner at Trilegal; and Mr. Amit Sibal, Senior Advocate. Moderated by Ms. Kshama Loya, Partner at Dentons Link Legal, the discussion delved into the nuances, challenges, and advantages of emergency arbitration in providing timely relief to parties in disputes.
Starting the discussion, Ms. Kshama Loya remarked on the evolving landscape of emergency arbitration, highlighting its strategic significance beyond interim relief. She emphasized the increasing recognition of emergency arbitration as a powerful tool for negotiation, citing instances where parties have reached settlements either before or shortly after an emergency award was issued.
She posed the first question to Ms. Anuradha Dutt: “National Courts in most jurisdictions offer a viable option for urgent interim reliefs. What then incentivizes a party to invoke emergency arbitration in institutional rules?”
Anuradha Dutt highlighted several key factors motivating parties to opt for emergency arbitration. First, she pointed out that national courts can often take a considerable amount of time—sometimes one to two months—to grant provisional or urgent measures. In contrast, emergency arbitration typically offers a resolution within 10 to 15 days.
Second, she noted that in cases involving technical matters, the specialized knowledge of the arbitrator can provide a significant advantage. However, the most critical factor she emphasized was party autonomy. Parties appreciate the ability to choose emergency arbitration, which they have agreed upon, as it allows them to exercise control over the process. Overall, if advising clients, she would strongly recommend emergency arbitration for its speed in delivering relief.
Ms. Kshama Loya added that one of the biggest advantages also of emergency arbitration is that an emergency arbitrator has wide discretion to tailor the procedure.
Ms. Kshama Loya posed the next question to Mr. Amit Sibal, that even when parties have chosen emergency arbitration provisions in institutional rules, would he still advise recourse to National Courts in certain situations?
Mr. Sibal said that emergency arbitration has evolved significantly since 2006, marked by a recent Supreme Court judgment recognizing emergency arbitral awards as enforceable in India, despite the term “emergency arbitrator” not being explicitly included in the Arbitration Act. This development underscores the growing acceptance of emergency arbitration, leading to an interesting question: do courts still have a role when parties opt for institutional rules that provide for emergency arbitration?
He highlighted that to address this, one must consider three key factors: (a) what relief is being sought, (b) against whom it is sought, and (c) the timing of the request.
Kshama Loya then opened the floor for further discussion, and asked Mr. Ritin Rai, that in a case where one of the parties is approaching the court for emergency relief and the Respondent is approaching the emergency arbitrator, would you see a problem there in terms of the decision making, or do you have a hierarchy or a priority? How would you approach that situation?
Ritin Rai raised important points about the complexities that arise when multiple jurisdictions are involved in arbitration, especially concerning emergency measures. The potential for conflicting decisions between an emergency arbitrator and a court can indeed creates significant challenges.
Mr. Rai emphasized the need for courts to respect party autonomy and the chosen institutional rules, which can help mitigate inconsistencies. This respect for the agreed-upon framework is crucial, as it reinforces the validity of arbitration agreements. The idea of courts asking probing questions before intervening is also a sound approach, as it encourages parties to clarify why judicial intervention might be necessary when arbitration is available.
Navigating these situations requires careful consideration to maintain the integrity of the arbitration process while also ensuring that parties have access to the relief they seek in a timely manner. The tension between judicial oversight and respect for arbitration is a critical issue that continues to evolve in international dispute resolution.
Ms. Anuradha Dutt remarked that “Courts in India are more conservative while giving relief rather than arbitrators. So that’s another reason why I would choose emergency arbitration”.
Kshama posed an insightful question to Mr. Francis Xavier SC: What are the key threshold issues that a party must address to successfully obtain emergency relief in arbitration, given that statistics show a low percentage of such applications are granted?
Mr. Francis Xavier SC provided a detailed analysis of the factors influencing the success rates of emergency arbitration applications across different institutions. He noted that while statistics show a generally low success rate—approximately 25% for ICC and about one-third for Hong Kong—the ICDR boasts a significantly higher success rate of around 65% when excluding withdrawn or settled cases. This variation highlights the differing standards and practices among arbitration institutions.
In addressing Ms. Kshama’s question about threshold issues for obtaining emergency relief, Mr. Xavier emphasized the critical initial inquiry an Emergency Arbitrator faces: whether to apply a lex arbitri test for injunctive relief or a transnational test.
He identified three key principles that guide decision-making, regardless of the jurisdiction: whether the claimant has a prima facie case, the risk of irreparable harm if relief is denied, and the balance of hardship or convenience between the parties. He pointed out that in real cases, the prima facie assessment often intersects with jurisdictional issues, complicating the arbitrator’s role early in the process.
Finally, Mr. Xavier noted the distinct context of investment treaty cases, where emergency arbitration is less common and involves modified criteria, such as a “strongly arguable case” standard. He concluded by asserting that while these distinctions exist, they often boil down to semantics in practice.
Continuing the discussion, Ms. Kshama posed a thoughtful question to Ms. Varuna Bharale regarding the test of urgency in emergency arbitration applications. Ms. Kshama sought insights into the key factors that must be demonstrated to establish a compelling case for emergency relief, emphasizing the importance of clearly articulating the urgency involved in the application.
Ms. Varuna provided a comprehensive response to Kshama’s question about the test of urgency in emergency arbitration. She emphasized that urgency is fundamental to the success of such applications, as it underpins the need for immediate relief. Without a clear demonstration of urgency—showing that failure to obtain interim relief could lead to irreparable harm—an application is unlikely to succeed.
She also outlined a two-step process for establishing urgency.
The discussion expanded to cover several important topics, including the issue of whether non-signatories should be subjected to interim relief and the time-sensitive nature of emergency arbitration procedures. Participants considered whether existing frameworks adequately address these challenges or if improvements are necessary.
The panelists also explored potential enhancements within the arbitration ecosystem, such as clearer guidelines for enforcing these orders across jurisdictions and improved communication between arbitral institutions and courts. Overall, the conversation underscored the need for ongoing dialogue and reform to strengthen the efficacy and enforceability of emergency arbitration processes.
Panel 3, titled “From Algorithm to Awards: AI’s Influence on Global Dispute Resolution,” featured a distinguished group of speakers, including Mr. Dhirendra Negi, Partner at JSA Advocates and Solicitors; Mr. Stephen Strick, Independent Arbitrator; Ms. Chittu Nagarajan, Co-Founder of ODR.com; Mr. Alipak Banerjee, Head of International Dispute Resolution (New Delhi) at Nishith Desai Associates; and Ms. Suruchi Rungta, Head of Legal at Zensar Technologies. The discussion was moderated by Mr. Akshay Kishore, Partner at Bird & Bird. The panel explored the transformative impact of artificial intelligence on dispute resolution processes, examining the potential benefits and challenges of integrating AI technologies into arbitration and mediation frameworks, as well as the future directions for this evolving landscape.
Mr. Akshay Kishore began the discussion by inviting Ms. Chittu Nagarajan to provide an overview of the use of AI and technology in Alternative Dispute Resolution (ADR).
Ms. Chittu expressed gratitude for the rise of artificial intelligence, noting that it has opened the door for discussions about technology in the legal industry, a topic that previously faced resistance. With 25 years of experience in online dispute resolution (ODR), she recounted the challenges of introducing technology to a skeptical audience of legal professionals who feared it might threaten their jobs. Ms. Nagarajan explained that the foundation of ODR began 25 years ago, focusing on technology-facilitated dispute resolution, particularly in e-commerce contexts like eBay and PayPal, where jurisdictional issues made traditional litigation or arbitration impractical. By employing algorithms and automated processes, they resolved 90% of disputes through software, showcasing the potential of technology in this space.
She emphasized that ODR platforms are designed for end-to-end dispute resolution within a single system, integrating case management, mediation, and arbitration in a structured manner. This approach contrasts with ad hoc methods, ensuring that all aspects of dispute resolution are handled efficiently on one platform. Ms. Nagarajan also highlighted the significance of the ICDR’s acquisition of ODR.com, which aims to enhance the delivery of dispute resolution services while utilizing AI and technology effectively. Ultimately, she positioned ODR as the foundational innovation that has paved the way for current advancements in dispute resolution technology.
Akshay Kishore directed the conversation to Ms.Suruchi Rungta, noting Zensar’s partnership with ICDR. He invited her to share her views on the scope of AI in arbitration and its application in general disputes, including judicial contexts. He also asked her to elaborate on what Zensar is specifically doing with ICDR, providing insights into their collaborative efforts and the potential impact of technology on the arbitration process.
In her remarks, Suruchi Rungta began by discussing Zensar’s partnership with American Arbitration Association, emphasizing their role in enhancing efficiency and streamlining processes. She highlighted tools that have recently been launched, such as the clause builder tool, which allows parties to input specific factors—like territory and type of dispute—so that AI can generate a customized model clause.
Shifting to the potential for further advancements, she noted that while the legal profession tends to be conservative, there remains significant room for AI to enhance case management. AI could tailor processes based on the nuances of different dispute types, such as insurance or infrastructure cases. Furthermore, in selecting arbitrators, AI could improve accuracy and speed, identifying potential candidates more effectively than traditional keyword searches.
Ms. Suruchi concluded by discussing how AI could aid arbitrators in rendering awards more efficiently, allowing them to quickly reference relevant provisions and streamline their decision-making process.
Akshay Kishore asked Mr. Stephen Strick about the adoption of AI in arbitration practice, specifically inquiring whether he and his fellow arbitrators are incorporating these tools into their work. He sought to understand the extent to which arbitrators are embracing AI and how they are integrating it into their processes, if at all.
Stephen Strick acknowledged that while technology, particularly AI, is becoming increasingly prevalent, the real question lies in its adoption by practitioners in arbitration. He pointed out that despite the advancements in AI, many arbitrators remain cautious, partly due to recent incidents that raised concerns about reliability, such as a New York law firm submitting briefs generated by ChatGPT that included fictitious case citations.
He then speculated on the potential future of generative AI in arbitration. For instance, he envisioned AI agents capable of summarizing pleadings, providing key case law, and managing logistics for discussions—all within moments. He expressed optimism about these advancements, suggesting that such capabilities could significantly enhance the efficiency of arbitrators and improve the arbitration process overall.
Mr. Alipak Banerjee highlighted that, currently, AI tools are primarily employed for document-related tasks, such as document review and collation. For instance, when faced with a large volume of data, such as 5GB, lawyers might use AI tools like Luminance to identify patterns quickly, offering a preliminary perspective rather than a comprehensive review. Additionally, while AI can assist in drafting standard documents, like a notice of arbitration, the output often requires further customization. He noted that the quality of AI-generated content is comparable to that produced by a second-year associate, particularly when using tailored AI tools developed within a law firm. He also mentioned that AI is being utilized for translation and procedural issues, underscoring its growing role in large-scale arbitration.
Continuing the discussion, Mr. Dhirendra Negi expressed concerns about the current state of AI implementation in the judiciary, noting that there is a lack of comprehensive data on its effectiveness. He mentioned that the Supreme Court has introduced an AI tool aimed at summarizing cases and documentation, but details on its performance remain scarce.
From the practitioners’ perspective, he described the adoption of AI as largely experimental. Many firms, including his own, are in the pilot stages, grappling with uncertainties such as potential breaches of confidentiality and privilege. He emphasized that while some basic AI functionalities, like document review and spell-checking, are in use, they do not represent a significant advancement in practice.
Mr. Negi highlighted the need for more substantial developments in AI applications, particularly in the context of dispute resolution. He suggested that it would be beneficial if courts publicly shared their experiences and outcomes with AI tools, as this transparency could foster trust and inform practitioners about the tools’ efficacy.
The panel continued exploring the topic further, offering great insights into the challenges and opportunities presented by AI in arbitration and dispute resolution. Speakers shared their experiences with implementing AI tools, discussing both the benefits and the limitations they encountered. They highlighted the need for careful consideration of ethical concerns, particularly around confidentiality and the accuracy of AI-generated outputs.
The event continued with Mr. Tushar Mehta, Solicitor General of India, delivered the closing remarks, expressing his confidence in India’s continued growth and evolution. He shared a timeless adage: “If you want to go fast, go alone; if you want to go far, go together.” Emphasizing the importance of collaboration within the Indian arbitration ecosystem and partnerships with international institutions like the ICDR, he highlighted the potential for remarkable advancements in arbitration and dispute resolution.
Read his detailed speech here to gain insights into his vision for the future of arbitration in India.
Launch of the ICDR India Committee
Ms. Thara Gopalan, Vice President of AAA-ICDR, officially announced the launch of the ICDR India Committee at the ICDR India Conference 2024. This pivotal initiative represented a significant step forward in advancing ICDR’s mission in the field of dispute resolution in India. The committee will focus on driving thought leadership and highlighting innovative practices across the country, enhancing the landscape of arbitration and mediation.
The event concluded with the launch of the ICDR India Committee, marking a significant step forward in enhancing dispute resolution in the country.