Winning a case or an arbitration may still leave a company worse off if it damages a valuable commercial relationship, Hinduja Group General Counsel Abhijit Mukhopadhyay said at a London conference organised by the Indian Council of Arbitration.
He said,
"I may win a case, I may win an arbitration award, but at the end of the day, I’m losing a customer. I am losing a joint venture partner. I am losing my future joint venture partners and, at the end, there is news all over that we are a very litigious kind of entity.”
He added that large companies should have internal dispute resolution policies so that issues do not escalate because of personality clashes or ego.
Mukhopadhyay was speaking during a session on strengthening Indo-UK commercial dispute resolution and the role of alternative dispute resolution in cross-border trade and investment.
The panel was moderated by barrister and international arbitrator Karishma Vora. It also featured Nitesh Jain, Partner at Trilegal, Mumbai; Fraser Campbell KC of Blackstone Chambers; and Amanda Clack, CEO of HKA Experts.
Opening the discussion, Vora said that the panel was meant to examine how trade, investment and commercial relationships between India and the United Kingdom could be strengthened. She noted that commercial parties were often able to price risk, but struggled with uncertainty. She said
“Business persons seem to be able to price risk. They seem to be struggling with pricing uncertainty.”
Vora framed the discussion around three broad questions: whether mediation could reduce court pendency in India, whether large companies should adopt internal dispute resolution policies and whether expert analysis could help parties move towards settlement.
Jain said that India’s court pendency remains a major challenge, with around 5-5.5 crore cases pending across courts. He said India has made significant progress in arbitration over the last decade through legislative amendments and judicial developments, but the next shift must be towards mediation and a broader change in dispute resolution culture.
He highlighted that mediation was not new to India and had existed through court-referred mechanisms under the Code of Civil Procedure and High Court mediation centres.
Campbell KC said that mediation should not be treated as a one-off event that either succeeds or fails. It can operate alongside litigation or arbitration and may still be useful even if it resolves only some issues, he added.
He also said that arbitration clauses are often drafted in a boilerplate manner. In long-term commercial relationships, parties could consider giving arbitrators more flexible powers to adjust pricing, allocate risk or direct an orderly wind-down, instead of treating every dispute as an adversarial claim for breach, loss and damages.
Clack said that forensic experts can help parties move towards settlement by clarifying the facts, chronology and quantification of claims. She suggested that expert analysis can expose the strengths and weaknesses of a case, reduce assumptions and sharpen strategy.
Vora summed up the discussion by noting that disputes could be narrowed in multiple ways, including mediation, early expert involvement and internal training within companies.
“So it seems that the best dispute is the one that you never have.”