In Conversation With Mr. Pratyush Miglani, Partner at Miglani Varma & Co

Pratyush Miglani is a Founding Partner of Miglani Varma & Co., a law firm based in New Delhi.
In Conversation With Mr. Pratyush Miglani, Partner at Miglani Varma & Co
Mr. Pratyush Miglani

Pratyush Miglani is a Founding Partner of Miglani Varma & Co., a law firm based in New Delhi. He started his law firm at a very young age after working for DMD Advocates for about two years. His is a fast-growing firm that represents a wide range of clients across more than 100 cities of India. Over the years, he has carved a niche for himself in the area of dispute resolution and today boasts a successful domestic as well as international arbitration practice. With nearly a decade-long experience in handling strenuous domestic and cross-border disputes, he also advises top multinational companies as well as startups on risk assessment and mitigation, navigating regulatory landmines and achieving targeted business growth. Other than his private practice, Pratyush has also served as a Senior Panel Counsel for the Union Government at the Delhi High Court.

In this interview to Bar and Bench, Mr. Miglani, talks about the considerations that prompted him to pursue a career in alternate dispute resolution, his views on certain latest developments in Indian taxation and arbitration laws and advice to students interested in pursuing a career in arbitration laws.

Please tell our readers a little about yourself and what considerations prompted you to pursue a career in law, specifically alternate dispute resolution (ADR).

I am a dispute resolution and commercial law practitioner.

I have always had an analytical mind which prompted me to take up science when I was in school. Finding simple solutions to complex issues gets me excited and keeps me driven so it was natural for me to take up law given that my father is a lawyer too, and I grew up surrounded with law books and intriguing conversations about the law.

Insofar as ADR is concerned, I did not consciously sit and plan a career in ADR. I have always found the field, especially international arbitration, to be extraordinarily complex and nuanced, which piqued my interest and provoked me to become a life-long learner of the subject. It is indeed one of the most intellectually stimulating fields of law. While people at my age spend their alone time reading self-help books (not that I don’t do it), I am happy to pick up a commentary by Gary Born or Redfern & Hunter and spend my Sundays with them, peacefully!

How do you view the Government’s decision to finally roll-back retrospective taxation in India?

Without speculating on the Government’s motivations to finally roll back retrospective taxation, I must say it is a welcome move; if anything, it should have been done sooner. The move brings years of uncertainty in the legal landscape to an end which had dented India’s reputation as an investment-friendly destination. Having worked on the Vodafone case during my time at DMD Advocates, I am also glad that the position taken by the Supreme Court has been vindicated owing to this corrective measure enacted by the Government.

Since you talked about the Vodafone case, what do you think about the challenges to enforcement of foreign bilateral investment treaty (BIT) awards in India?

Given the position taken by the Delhi High Court in the Vodafone and Khaitan Holdings suit laying down that BIT arbitrations are a result of disputes in relation to sovereign guarantees and are therefore not “commercial” disputes, there is a lot of ambiguity in respect of enforcement of foreign BIT awards under the Indian Arbitration Act. In my opinion, the Delhi High Court certainly needs course correction given that BIT arbitrations under the Model BIT are deemed to arise out of commercial relations and thereby covered under the New York Convention.

Judicial intervention in arbitration and frequent setting aside of arbitral awards has long been a subject of concern. With recent decisions such as Gemini Bay, do you think India is becoming a pro-arbitration jurisdiction? How do you see these decisions considering the 2021 amendment to the Arbitration and Conciliation Act?

It is true that arbitral awards continue to be challenged on frivolous grounds in India, leading to prolonged litigation before judicial forums. This often times ends in a judgement or an order which does more harm than good to the Indian arbitration landscape. I believe the legal fraternity should exercise due care when challenging arbitral awards while keeping in mind the broader role of arbitration in the legal industry and how it could help our courts in managing a tremendous backlog of cases.

On the other hand, decisions such as Gemini Bay v Integrated Sales (Civil Appeals 8345-8346 of 2018), which clarified the scope of challenge under Section 48 and NHAI v. M. Hakim (Civil Appeal No. 2797 of 2021), which held that arbitral awards cannot be modified under Section 34, among others, serve as reminders that judicial attitudes towards arbitration continue to remain strongly pro-enforcement.

As far as the 2021 amendment is concerned, the new provision is susceptible to enormous misuse. In the absence of a clear delineation of what constitutes “fraud & corruption” under the Act, it will not be surprising to see parties frequently invoking the provision to seek a stay on the enforcement of arbitral awards. The amendment opens floodgates to a lot of otherwise avoidable litigation, precisely what arbitration intends to avoid. Let us not forget that it has taken us decades if not more and many Supreme Court judgments to finally understand the true nature and scope of Section 34. I am anxious that this new amendment may end up becoming the next Section 34.

Apart from the above, by enabling the courts to examine if the arbitration agreement was entered into by fraud, the amendment allows courts to revisit questions that are in the domain of the arbitral tribunal putting a spanner in the enforcement process.

Indian companies tend to rely on ad hoc arbitration more than institutional arbitration. The 2019 amendment to the Arbitration Act envisaged the creation of the Arbitration Council to change that. What are your views on the amendment, and do you see it changing anything?

While both Indian companies and individuals tend to, or are used to, relying on ad hoc arbitration; recent data from institutions such as the Singapore International Arbitration Centre (SIAC) represents a clear change in attitude. In 2019-20, India was the highest foreign user of SIAC as an arbitral institution, a trend I suspect will continue to persist.

While the 2019 amendment and its creation of the Arbitration Council was a welcome move, it has its own share of issues. For instance, inter alia, several ex-officio members of the Council are not arbitration practitioners but are entrusted with the task of rating arbitral institutions. The qualifications to serve as an arbitrator are also a cause of disagreement for many. If such issues are adequately resolved, I am sure the amendment will prove to be very beneficial for growth of institutional arbitration in the long run.

Arbitration practitioners around the world have been forced to move towards online dispute resolution due to the pandemic. What are your views on ODR?

Online Dispute Resolution (ODR) holds tremendous potential for the future. Not only is ODR more efficient, but it is also the more sustainable alternative, given that it reduces the carbon footprint, an issue that needs active involvement of different stakeholders.

The initial hiccups in the way of ODR such as issues related to evidentiary hearing or cross examination of parties, or even the logistical and operational issues are now being addressed by international organizations such as the International Bar Association as well as reputed arbitral institutions around the world. Of course, arbitral institutions in India are yet to adopt rules specific to ODR, but it is my firm belief that ODR will emerge as a popular mechanism for dispute resolution as we go along.

What would you advise young lawyers and law students interested in pursuing a career in ADR?

I think to develop a career in ADR, the most important thing is to stay abreast with all the latest decisions and amendments, since the law around ADR, especially arbitration, has been very dynamic. Further, it is equally important to stay updated with not just the Indian law, but also with the developments taking place around the world, given that we are living in a globalized world and cross-border disputes are more common than ever before. Participation in ADR moots also helps one in developing a deeper understanding of the subject, as does writing about it. Lastly, internships at the right places can also help you go a long way!

This interview was conducted by Campus Ambassador, Rohit Kumar.

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