We would be mad not to take advantage of the Indian market liberalisation: Stephen Moriarty KC

Stephen Moriarty King's Counsel (KC) is a barrister at Fountain Court Chambers, one of London’s leading commercial sets. He was also the Head of Fountain Court Chambers from 2013- 2018.

Moriarty has a very broad commercial litigation, arbitration and advisory practice.

Bar & Bench's Pallavi Saluja recently met Moriarty during the recently held London International Disputes Week. In this interview, he talks about the recent amendments to the UK Arbitration Act, India's potential to be a hub of international arbitration, use of AI and more.

Pallavi Saluja (PS): The UK Arbitration Act has introduced a wide range of reforms, strengthening arbitrator immunity, clarifying the law governing arbitration agreements, codifying summary disposal pass, expanding disclosure duties, etc.

Do you see these changes as a necessary modernisation to keep pace with global arbitration reforms, or do they risk disrupting the delicate balance that has traditionally underpinned London's appeal as a seat of arbitration?

Stephen Moriarty KC (SM): I think the reforms have strengthened the Act. For example, the implication of the law of the seat governing the arbitration agreement, unless expressed to the contrary, is a very sensible change in the law. Although one could see where the Supreme Court was coming from in the Enka decision, where it was applying classic, Conflicts of Laws principles, there is no doubt that it produced a very complicated analysis that could be argued about for ages. What the parties want is a very clear and simple solution. The Law Commission recommendation that has now been enacted produces just that. 

I would not say these reforms were just an attempt to keep in line with global arbitration practice. It was a look at how the Arbitration Act has been working over the past few years, and trying to make improvements in the light of experience.  

PS: London and Singapore have retained their leading positions as jurisdiction of choice for arbitration. Do you think London has an edge over Singapore?

SM: A lot of that depends upon the market in question. Singapore arbitration has certainly got an edge in the case of Asian parties who want to arbitrate. Having said that, there are a lot of Indian parties who still choose to arbitrate in London. I never quite understand what really influences a choice of seat outside India by Indian parties.

PS: The recent Gayatri Balasamy case held that courts have the power to modify arbitral awards, although no express statutory provision for such modifications exists in the Indian Arbitration Act.

How do you think such judicial interventions affect international perceptions of India as an arbitration hub?

SM: My impression is that the perception of India as an arbitration centre is getting better by the year. Five years ago, people would probably consider it mad to think that India could be a place where people would arbitrate. However, it is steadily getting better, and I think it is only a matter of time before India becomes a place where people will be happy to arbitrate. The question is how long it will take. Institutions like the Mumbai International Arbitration Centre and the Delhi International Arbitration Centre can make an important contribution to improving the arbitration experience in India.

PS: How do you envision India’s arbitration and commercial litigation gearing up to compete with London and Singapore? What steps Indian practitioners and arbitrators should take to elevate India’s standing as a leading arbitration hub?

SM: Co-counselling is a very good way. I very much enjoy co-counselling with Indian lawyers. Quite frankly, when you work with a team of Indian lawyers, they are phenomenally good. Co-counselling is a way in which I can get to know more about how Indian lawyers think and work. I think they can also benefit from seeing the way in which English lawyers argue a case and cross-examine. You get good cross-fertilisation from co-counselling.

I have been told that many of the really good Senior Advocates in India are so busy with court practice that they do not really have the time to devote to substantial commercial arbitrations. If that is so, I think they are missing out on a very interesting and important source of work, and, all the while it happens, it may be a bit of a drag on India competing with Singapore and London when it comes to substantial international arbitrations.

PS: Recently, the Singapore Court of Appeals and SICC set aside awards issued by three arbitrators who are retired Indian judges after finding substantial “copy-paste” from related cases. Do you agree that the arbitrators should have been named?

How do such incidents impact the international perception of Indian arbitrators and India’s reputation as a trusted arbitration hub?

SM: I have no real view on whether the arbitrators should have been named or not. The important thing is that the Singapore Courts have made clear what is an unacceptable practice in the production of an Award

In the short term, there is no doubt that the whole affair is embarrassing. However, In the longer term, it should have a salutary effect on people’s approach to the writing of awards, and in that sense should lead to an improvement in standards, which is a good thing.

PS: What are your thoughts on the Bar Council of India (BCI) rules allowing the entry of foreign lawyers into India?

SM: I am surprised that it does not seem to be as opposed as the last round of BCI rules were. I think it is really good. We now have to think very seriously about what we do in the light of these new Rules. To be sure, there are things we have to investigate, such as tax implications, if we were to open an office in India. However, my own personal view is that, in the short-to-medium term, we would be mad not to take advantage of it, because India is such a huge market.

PS: What are your thoughts on the increasing use of AI in arbitration?

SM: In the longer term, AI will be useful for producing drafts of legal submissions and other documents. I attended a legal conference in Singapore last month on AI, and it was an amazing insight into the potential uses of AI in legal work even now. After being taught how to use sophisticated prompts, I was astonished at the standard of work that could be produced. I am not convinced it has got to the stage where it can produce a polished final draft; and, even when it does, I am too “hands-on” to leave it at that. But I can certainly see how I might want to use it to do a first draft of something. So it can be a good start, particularly on things like the procedural section in arbitration awards, which drive me mad.

I still cannot get my head around how it can “invent” cases, however. Like many others, I have had the experience of asking what the law is on a given area, and to be given the name and citation of a case which supports a particular legal proposition, only to find that it simply does not exist. I think it really is a bit of euphemism to describe these instances as mere “hallucinations”. At the end of the day, lawyers have to recognise that they are personally responsible for document that go out under their name, and, however legitimate it may be to make use of AI in producing them, the propensity to “hallucinate” can never be an excuse.

PS: Any advice for young lawyers getting into the arbitration space?

SM: Enjoy it. Be part of a team, especially in big cases. It is great fun working with a team and I think you get the best out of junior lawyers when you treat everyone as equals, and let everyone make a contribution. I have had very happy experiences working with Indian lawyers where the young ones really do go the extra mile and make an enormous contribution to the case.