Advocate or arbitrator? Bombay High Court Justice Sharmila Deshmukh says lawyers must be both

Bombay High Court Justice Sharmila Deshmukh recently urged legal practitioners to recognise their dual responsibility as advocates and arbitrators, as she set the tone for discussion on the evolving role of lawyers in arbitration landscape in India.

The judge was speaking at an event organised at the High Court by the Mumbai Centre for International Arbitration (MCIA) in collaboration with the Bombay Bar Association and the Chartered Institute of Arbitrators (CIArb) India Branch on the theme Crossing the Floor – Life on Both Sides of the Arbitration Table.

In her address, the judge described arbitration not as an adjunct to court litigation, but as a parallel system of justice. Justice Deshmukh drew from her experience in handling Section 34 challenges to highlight,

“Sitting on this assignment I have realised the significant development of arbitration when I realised that the body of law which has been developed on an enactment which is only of 87 sections, 90% of it goes to the ingenuity of the advocates who interpret it in such an amazing way that it has developed exponentially."

She also strongly defended the practice of arguing lawyers also sitting as arbitrators. She reasoned that when advocates become an arbitrator and then return to practice, they carry a vital insight of how an arbitration case will hold up in court.

“Considering that dual role, I do not think that there should be any separation of roles where counsel should appear only as counsel and the arbitrators should be a separate cadre in itself,” she said. 

She also batted for training for arbitrators to evaluate evidence objectively and impartially.

“It is somewhat like when you are suddenly elevated on the Bench from the Bar, you tend to argue more than the lawyers. This is what happens when you do arbitration. You tend to argue more, when you think as if you are a lawyer. Then when you come back into practice, you carry that along with you. Fortunately for judges, you are not allowed to come back, otherwise, we would have done the same thing."

The speech was followed by a panel discussion featuring Senior Advocates Fredun Devitre and Venkatesh Dhond, MCIA Registrar and Secretary General Neeti Sachdeva and associate member at 4 Pump Court Barristers' Chambers, London Vyapak Desai. 

Devitre traced the journey of arbitration from an informal, “after‑hours” exercise in the 1970s and 1980s to proceedings that are now virtually like a court. He mentioned how arbitrator appointments have shifted from being almost exclusively the domain of retired judges to increasingly include practicing advocates. He also welcomed the trend of appointing young lawyers as arbitrators.

Dhond highlighted how trial experience gives lawyers a decisive edge in handling evidence and cross‑examination when sitting as arbitrators. Courtroom advocacy helps develop a “sixth sense” of where a case is going, he said.

However, he pointed out the flip side of practicing lawyers becoming part-time arbitrators:

“Unless there is institutional oversight, it becomes a club of part-timers. It is a very happy thing: part-time lawyers after court, part-time arbitrators after court. Which is why an organisation like the Mumbai Arbitration Centre is very important. We need discipline."

Desai, who frequently wears both hats, argued that dual roles are common worldwide and can be a powerful form of skill‑building. He stated that legal conflicts can be managed through disclosure frameworks, but the real gain lay in skill-building.

Justice Deshmukh cautioned practitioners against treating arbitration as merely “pre‑court proceeding litigation”. She said this after noting their approach to Section 34 challenges as a first appeal which, according to her, undermines the objective of minimum judicial intervention. 

However, Dhond differed, insisting that courts must have a robust interference mechanism to inspire confidence in arbitration as a true substitute for litigation. 

“Look at the accountability of arbitrators. I am a judge and I pass an order which is wrong, which doesn't consider objections. I am answerable to a higher court, my career is on the line. If I am a district court and I pass a stupid order, the High Court is going to look at it, it's going to affect my promotion. If I am an arbitrator and I pass a silly order and it is not reviewed under 34, then there is no accountability,” he argued. 

Desai responded that the long‑term solution should be better awards and stronger arbitrators so that fewer awards are vulnerable to challenge in courts.