At the recently concluded Delhi Arbitration Weekend (DAW), Bar & Bench's Pallavi Saluja and Shagun Suryam spoke to Constantine Partasides, one of the founding partners of Three Crowns LLP, a law firm that specialises in international commercial arbitration and has offices in London, Singapore, Paris and Washington DC.
During the conversation, Partasides discussed why India was a large part of the future of international arbitration. He also highlighted the areas in which it is lacking, and the reforms needed to make it an international dispute resolution hub.
Edited excerpts follow.
Do you buy into the notion that India can become a hub for international arbitration in the future?
India is undoubtedly going to be a centre for international arbitration in the future, for a few reasons.
Firstly, just the dynamism of the economy here, which is now increasingly integrated with the international economy. With my practice, I am seeing international investors finding themselves needing arbitration with Indian joint venture partners. I am seeing Indian clients finding themselves needing arbitration services with their international partners. That will only increase.
Secondly, the legal energy in this place is extraordinary. You have some of the best lawyers in the world here, who are not only contributing to the development of laws and best practices in India but also globally. We are privileged to have across all our offices several colleagues from India, who are truly exceptional lawyers and advocates. Moreover, the case law in India is so rich that it will inevitably reflect itself in increasing influence internationally as well.
The third point - and this is something to emphasise - is that there is no equivalent anywhere in the world to the young Indian lawyers coming from your best law schools. There are lots of very good young lawyers all over the world, but in India, a lot of the lawyers that we're finding are not only very good technically, but they combine it with a real fire in their belly, with a real hunger, and real ambition. I think that's going to take more and more of them to the very top of the profession, and that will put India in a strong position.
What are the main areas that need to be improved for this to become a reality?
I think that there is still a reputation of the Indian courts that makes international users wary that they will intervene, and they will substitute their views on the way in which things should be decided, opposite to the way in which arbitrators have decided. That has improved, undoubtedly. India has got excellent judges; the Chief Justice of India at the DAW opening ceremony spoke in a way that was so supportive of the arbitration process.
So, it is certainly moving in the right direction, but there is still a way to go to present a supervisory jurisdiction that is truly supportive of the arbitration process. There is no reason why it can't be accomplished.
To what extent should the judiciary ideally intervene in arbitral awards?
I heard his (CJI DY Chandrachud's) speech and I welcomed it. I understood that the point he was making was that he sees, and the judiciary sees variability in the quality of arbitral awards. That if there is an award that is of not great quality, the judiciary should intervene and address that. I understand that motivation, but there is a cost attached to such intervention, because the parties have chosen those arbitrators. They have not chosen the court, and so substituting the view of those who have been selected for the view of those who have not been, as a matter of principle, I think so far as users are concerned, is problematic. So, my position, based on my understanding of the statement he was making, is that it carries more costs than it carries benefits.
If you look at some of the more mature arbitral jurisdictions like France, Switzerland, and England & Wales, they go through phases of less and more intervention. It is not a constant, and so if even these mature jurisdictions are changing over time, it is to be expected that a newer jurisdiction in arbitral terms, such as India, will be going through the same variations.
My own view, and this is not just in India, is that the more we can inform our bench about the arbitral process, the better it will be for the arbitral process. I think information and education of judges in India and elsewhere is really the key.
Do you think the opening up of the Indian legal market will pave the way for more international arbitration in India?
Those of us who are international practitioners, who have been looking to India for its opportunities for the last 20 years, have been told for a long time that India is on the cusp of opening up. India is still on the cusp of opening up, and I think that that is a missed opportunity. I think there is a huge amount of value being lost to the Indian economy, and in particular, the legal profession.
I’ll give the example of Singapore. 25 years ago, Singapore protected its legal market in the same way as India does today. So, Singaporean lawyers had 100% of a very small market. As soon as they opened up, they had 70% of an enormous market. That is the difference.
India and its legal sector right now are depriving itself of a huge amount of activity because of the protection. I am convinced that this will change one day, and the sooner it changes, the better for India.
What is your take on third-party funding in the dispute resolution process?
I had a conversation with one of the original third-party funders just after we launched Three Crowns, and he was interested in what we were doing, because it was innovative. Three Crowns is the first firm globally that exclusively specializes in international arbitration. So, he was interested in exchanging ideas, and his idea was third-party funding.
From his perspective of private practice and then corporate practice, he realised that the one area of economic activity that did not open the doors to finance was the legal sector. If you treated claims in the same way as other assets, you could really make it available for many more. He was one of the innovators who brought the principles of finance to the legal sector and extended it to arbitration. I think third party funding has been an enabler. I have seen more positives than negatives and I'm sure that that would be the case in India as well.
Over the years, have you seen an increase in gender diversity in the arbitration space?
People reach for gender diversity first, and quite understandably, and I think that that is improving, but we have a ways to go. I think it is partly generational. As soon as we start appointing slightly younger arbitrators, there will be many more women of a certain generation than there are in the older generation. It will happen, and I am seeing that happen. I just came out of a three-week trial in New York where two of the three members of the tribunal were women, and I think that is going to be increasingly the case. We are all committed to this cause.
There is a second dimension to diversity, and that is cultural and geographic diversity. I think the international arbitration community is much further behind in that. We need to give this challenge more attention now.
What advice would you have for young Indian lawyers who aim to specialise in international arbitration?
Three Crowns, as a firm that I co-founded with five other founding partners, and the vision we had was that international arbitration deserved and demanded true specialism. I remember at the beginning of my career, people said, “Oh, why are you specializing in arbitration? You can't build a career on that, it's too small.” And here we are, at the top of an enormous industry.
I would say the same to young practitioners in India today. The arbitration juggernaut is only moving in one direction, and if you want to get on top of that juggernaut, the best way to do it is by specialising. Make it what you do and mostly what you do, and then you will become an expert. That is the way.