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The webinar was hosted by RMLNLU's Society for Excellence in Arbitration
A webinar on “Arbitration during COVID-19: Adequacy of the Indian Regime”, was held on July 10, 2020. The webinar witnessed the participation of Ms. Ila Kapoor, Partner at Shardul Amarchand Mangaldas and Mr. Vyapak Desai, who heads the International Dispute Resolution and Investigation Practice at Nishith Desai Associates.
The session was moderated by Ms. Ananya Aggarwal, Senior Associate at Shardul Amarchand Mangaldas. The panel shared practical insights into the impact of COVID -19 on Indian Arbitration.
The webinar was hosted by the Society for Excellence in Arbitration, RMLNLU, Lucknow, which envisages to disseminate and discuss the contemporary developments in the field of arbitration.
The speakers focused on both the practical as well as legal intricacies on the subject matter by imparting with us their personal experience on the subject.
“The biggest challenge of the topic is technology”, expressed Ms. Ila, discussing her personal experience of virtual proceedings “without even seeing the face of the arbitrator”.
She said that practical considerations and infrastructure are required for both the lawyers and the arbitrators for better implementation of the technology. The primary concern in her opinion was the technical fallouts like connectivity and factors such as transmission speeds. She also raised concerns on practical grounds of accessibility of virtual technologies to under developed areas.
“Virtual hearings have made the Indian ad nauseam process of cross-examinations more disciplined”, she opined on a question related to cross-examinations.
On the question of due process concerns she was of the view that the arbitrator under Section 19(3) of the Arbitration and Conciliation Act, 1996, had ample powers to push forward for virtual hearing in the contemporary situation.
“Recording the cross-examination proceedings and using real time transcription services can be used to protect the parties”, she suggested.
She added that arbitrators can use a 360 degree view of the surroundings of the witness to ensure better cross examinations. On the concerns of privacy and confidentiality, she believes that an idea of a secure platform should be promulgated that can tackle this issue.
In her ending remarks, she addressed the question of costs. In her opinion the virtual setting allows for cheaper mode which is also environment friendly. She shared her personal experience about a recent virtual hearing she attended and how a great amount of transportation cost, hotel cost and other miscellaneous expenses were saved.
“The quick acceptance of technology in judicial and arbitrator community is appreciable.” Mr. Vyapak added to the discussion. “They have not given up on the ultimate goal that was to achieve justice for parties.”
He shared from his personal experience that the most important issue is the consent of parties when it comes to virtual hearing as the core values of arbitrations are dependent on party autonomy.
“Although, the short-comings like access to documents, the problems of filing a document and security on private servers remain, they would soon be history.”
He insisted that, “we should move beyond video conference” and work on creation of an integrated platform which works as a hearing room with easier document filing, recording and transcription options.
He also pointed out the international legislations that are already existing to manage virtual hearings (Seoul convention; ICC guidelines on virtual proceedings).
On the question of cross examination, he expressed that many concerns were over-stated as the best possible scenario in the contemporary times is a virtual setup.
Mr. Vyapak proceeded onto the next issue of security and privacy concerns with virtual arbitrations. “Transcription software can breach privacy and threaten the confidentiality of arbitral proceedings”, he pointed out. “There is no restitutive measure in such a situation.”
Though section 42A of the act protects confidentiality of the arbitral proceedings it does not provide any restitutive measure if such an act occurs, this make the scope of this amendment quite small and reduces its efficiency, he observed.
In his concluding remarks he restated his belief that “This virtual setup might create an opportunity for the legal professionals and would help in growing lawyers from small-town cities that were earlier ignored.”
The session can be viewed below:
This is the edited version of a report prepared by Animekh Pandey (2nd Year) and Gaurav Kumar (4th Year) of the Dr. Ram Manohar Lohiya National Law University, Lucknow.