How much opening up of the Indian legal market will we actually see? Lord David Wolfson KC

Lord David Wolfson of Tredegar, KC is a lawyer and politician. He is a barrister at One Essex Court, one of London’s leading commercial sets. His practice extends over a broad range of commercial law, both in litigation and international arbitration, and he accepts appointments as arbitrator..Lord Wolfson also served as Minister of Justice in the House of Lords from 2020-22..We met Lord Wolfson during the recently held London International Disputes Week. In this interview with Bar & Bench's Pallavi Saluja, he discusses his experience working with Indian lawyers, India's potential to become a hub of international arbitration, and his opinion on AI and arbitral awards..Edited excerpts follow..Pallavi Saluja (PS): How has the experience of working with Indian door tenants at One Essex Court been?.Lord David Wolfson (DW): It's been fantastic working with Indian lawyers. Of course, many of us in chambers worked with many Indian lawyers before we had Indian-qualified lawyers as members of chambers, because of the work many of us do in India. It's really great to have Indian-qualified lawyers with us in chambers. They're fantastic lawyers, they're also great people. They sometimes bring different visions and different approaches, which is valuable, and I think it enriches the legal scene in London. That's one of the glories of the Common Law tradition that we share with India and, of course, with other jurisdictions as well. So, it has been wonderful. I'm sure it will continue to be wonderful. It's an absolute delight..PS: Do you see some collaboration opportunities between English KCs and Indian Senior Advocates in commercial arbitration, given that both systems are so similar?.DW: Absolutely, because I've been doing cases where I've appeared jointly with Indian Senior Advocates. Just as I said earlier, it's wonderful to have Indian lawyers in chambers. It's also great to work alongside Indian lawyers, especially Indian Senior Advocates. A number have become personal friends, and I greatly respect them for their skills and also for being the wonderful people they are. Yes, I really enjoy appearing alongside Indian Senior Advocates. I've got a couple of cases at the moment where I'm doing that and I absolutely enjoy it. It's great, and I learn a lot from them as well..PS: The opening up of the Indian legal market has been on the horizon for some time now. How do you see foreign and Indian lawyers collaborating?.DW: I think foreign and Indian lawyers will collaborate so far as the rules entitle them to do so. The real question is, how far will the rules go? How much opening up of the Indian legal market will we actually see? That's the question. When I was in the government, I was obviously working on the workstream to assist in opening up the Indian legal market in the sense of making it part of the trade deal between the UK and India. I think there are some ways still to go, but in the end, it's good for both countries to have a market in law and in lawyers, just as there are markets in many other service industries as well. So, I'm hopeful. It will take time, but we're on the right track..The real question is, how far will the rules go? How much opening up of the Indian legal market will we actually see? That's the question.Lord David Wolfson KC.PS: Is arbitration still an effective method of dispute resolution? You had mentioned how the process is increasingly resembling litigation..DW: Yes, it is. People choose it, and they choose it for very good reasons. The real question is: is it as effective as it could be? I think there are some changes - I mentioned some in my speech - that could be made to make arbitration more effective or even more effective than it currently is..PS: Do you think parties will consent to using AI to render arbitral awards in the future?.DW: Well, not in huge litigation, but there are a lot of cases at the moment that are entirely uneconomical. Let's say you're a very small trader and you've got a claim against somebody for 1,100 pounds. We have the Small Claims Court in the UK, but often, that still takes place in person. It means you've got to take time off work if you're self-employed; that means money. If you're employed, you've got to get permission, and you may have to take a holiday. That means that sort of case is uneconomical. If it could all be done entirely online and could also be done by AI, which reduces the cost to the state, I do think there is a market for that. It may sound outlandish at the moment, but many things we now regard as commonplace, such as self-driving cars, were regarded as outlandish, and we now have them. The law's going to have to catch up with that. So, what I would say is watch this space..PS: Over the years, Singapore and Dubai have also come up as big commercial hubs. Do you think London still has an edge over these jurisdictions?.DW: Yes, Singapore and Dubai are big commercial hubs and they have very fine lawyers and very attractive court systems. Do I think London still has the edge? Yes, I think we do, and I don't wish to sound arrogant in saying that, but I do, because I think we have a depth of practitioners, of judges, of arbitrators, of experience, which still does give London the edge over those jurisdictions. Should we sit on our laurels and assume that nothing will change? Of course not. We have to keep on our toes and to make sure that we retain the edge, which I think we have at the moment..PS: Do you think India has the potential to become a hub of international arbitration? What works in our favour and what needs to change to make that a reality?.DW: Yes, it does, because India is a huge and growing economic power. So, of course, it could become a hub of international arbitration. It's not for me to tell India what to do, but what I would like to see is a real recognition at all levels of the legal community that arbitration is not second best; that when parties choose arbitration, choice should be honoured; that courts should only intervene in the arbitral process when they really need to make arbitral awards much more easily enforceable within the jurisdiction. Those are the changes I suggest should be made..There is no reason why India could not become a real hub of international arbitration.Lord David Wolfson KC.PS: You once argued a case in the Court of Appeal against a judgment in which you had successfully argued. Tell us more about that..DW: Yes, this was in the context of the old chestnut question of the law governing an arbitration agreement. So, I argued a case called Shashoua v Sharma before Justice Cook. And as you know, the chestnut is the law governing the agreement to arbitrate. Is it the law of the contract or the law of the matrix contract in which the agreement to arbitrate is usually found? Or is it the law of the seat? I argued in Shashoua v Sharma that it was the law of the seat, and I won. A few years later, Justice Cook had another case on this point, which I didn't appear in. He followed his previous decision and held it was the law of the seat. I then appeared in the Court of Appeal, arguing that it should be the law of the contract. The master of the rolls, who was then Lord Neuberger, pointed out that I'd argued the opposite in Shashoua v Sharma and had won, and the judge had followed Shashoua v Sharma in this case, and I was now arguing the contrary. I said that I was absolutely correct. And he said, “Well, do you accept you were wrong?” I replied, “No, my Lord, although I might be prepared to accept that the judge was wrong to agree with me!”I tell it as a joke, but that's a really important point. When barristers or advocates stand up in court, we're not saying what we think, we're advocating a position for the client. That's why we don't say 'I think' or 'I believe.' We say 'I submit' or 'we suggest' - language like that. It's really important that an advocate is not to be identified personally with the argument they're making. Otherwise, who in the criminal context is going to defend a person who's already been convicted of child rapes? And in the commercial context, who's going to act for some of the less salubrious, let's say, commercial entities around? Just as a doctor should not be judged by the identity of their patients, so also a lawyer should put their clients' case fairly and fearlessly and properly. That's their duty to the court, and I think that's a very important part of the Rule of Law, which underpins any civilized society..It's really important that an advocate is not to be identified personally with the argument they're making.Lord David Wolfson KC.PS: The UK will vote on July 4. If the Conservative Party comes to power in the upcoming elections, would you take up a ministerial post again?.DW: Am I allowed to put my politician's hat on and say there are two hypotheticals in that question? So, I'm going to dodge it. What I would say is that I do enjoy having a political life as well as a legal life. I find that one enriches the other. For present purposes, allow me not to go further than that..PS: What hat do you like wearing the most - litigation, arbitration or politician?.DW: That's a really good question. The honest answer is I like all the hats. Sometimes, the issue is changing them quickly enough or finding enough time to make sure that I do each of them to the full. I enjoy them all. So for as long as I can, I'm going to continue wearing three different hats..PS: What advice would you give to young lawyers?.DW: Well, it's not for me to give advice to anyone, but what I would say is this. It's important to go into an area of law that you are interested in, and you enjoy because the hours you have to work are long. There are times when it's lonely. There are times when it's long day after long day of work, and you're canceling holidays. You need to enjoy the work. I've always been very, very fortunate that I've really loved the work I do.The other advice is to look at who you're going to be working with, because working with good people is the most wonderful thing. It's a real joy and I've been tremendously lucky to work with fantastic colleagues in chambers, but not only in my chambers, and not only the people I work with, the people I do cases against are also invariably really fine people. I enjoy doing cases against them; perhaps it's a little too obsequious or sycophantic for me to say that it's also great to appear in front of so many wonderful judges and arbitrators, so I won't say that. Of course, I've just said it!That's the advice I would give. I think I've been tremendously blessed to work in the area of law I work in London, with an international aspect. It is, and I hope it will continue to be tremendous fun and really fulfilling. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.