Arbitration lawyers should be considered for Senior Designations and appointment as judges on equal footing: IAF writes to CJI

Convenors of the Indian Arbitration Forum (IAF) have written to Chief Justice of India NV Ramana urging that arbitration practitioners and litigation lawyers be considered on a level playing field for designation as Senior Advocates and elevation as judges..The Indian Arbitration Forum is an association of leading arbitration practitioners committed to encouraging the best practices in arbitration, streamlining the conduct of arbitral proceedings, and promoting the growth of arbitration as a means of dispute resolution in India and abroad..The letter acknowledges that the criteria for elevating arbitration practitioners may need some consideration, given that they may not have a sufficient number of reported judgments, and the fact that arbitral awards are generally confidential in nature, unless specifically challenged before the courts. The Forum nonetheless expresses hope that these issues can be dealt with by adopting alternative criteria such as considering redacted versions of arbitral awards..The letter also highlights that keeping arbitration practitioners at par will serve as an incentive for more lawyers to take up the practice of arbitration with the assurance that their career graph will remain unaffected by this decision. This in turn can also help address the ever-increasing issue of pendency of cases in courts and promote arbitration as a full-fledged Alternate Dispute Resolution mechanism, the letter states..Also highlighted in the letter are the stark realities of preferential treatment being accorded to litigating advocates for the purpose of judicial appointments and designations as Senior Advocates..The letter ends with a request for according a virtual audience to IAF members so that views and concerns can be presented more effectively..Endorsing all of the aspects highlighted in the letter, Senior Advocate Arvind Datar said to Bar & Bench, “I think the request for designating advocates for specializing in arbitration as senior counsel and judges is completely justified and it is being made at the right time. We are now repeatedly saying that if India is to become an arbitration hub, then we must have a specialized Arbitration Bar, i.e., lawyers who specialize in arbitration don’t do any other work but focus only on arbitration 7 days a week. Now, if you’re going to have a dedicated Arbitration Bar, then this proposal will not take off, unless counsel who choose arbitration as a specialization know that when they do well in the arbitration sphere, they have a chance to be designated along with a chance to be elevated to the Bench, because they won't be appearing in Court on a regular basis, except in an appeal to the High Court under Section 34 or 37, they’ll only be arbitrators.”.He added,"Secondly, today, because of the nature of litigation in the courts, the most complicated commercial matters are not before the civil courts but before the arbitrators. Thirdly, arbitrating lawyers conduct very complicated trials. They are doing cross-examination, examining expert witnesses and are doing a full-fledged civil trial before an arbitrator, which is not being done in many courts due to the time constraints and shortage of judges. So today, a specialized arbitration counsel will have excellent experience in commercial matters, conducting trials. With the promotion of commercial courts, I think arbitration lawyers will be ideally suited to be commercial court judges, because they have dealt with heavy commercial matters, they know how businesses are run. So they should absolutely be considered for elevations to be judges.”.Emphasizing on the point of the much-needed parity between arbitration practitioners and litigating lawyers, Datar said, “Another point is, if specialized litigating lawyers are eligible to be designated and elevated, why not arbitration counsel? Just because they are fully going to be before an arbitral tribunal, that does not mean they should lose out on being designated and elevated. So, within the specialized field of arbitration, there should be a hierarchy of counsel. There should be junior counsel, senior counsel; that will go a long way. And that is the international practice. There are many English Queen's Counsel (QC) who hardly come to court; they are all the time before arbitral tribunals. They do complicated arbitrations and also act as arbitrators. Same thing in Singapore. So in countries where arbitration is heavily encouraged, this is a normal practice that an arbitration counsel does become a QC or a Senior Counsel.".In Camera: Senior Lawyers should insist on having conferences through video, Senior Advocate Arvind Datar [Video].On the same note, Senior Advocate KV Vishwanathan stated, "I am hopeful that the representation will merit serious consideration. Internationally, it is a common practice to designate leading arbitration practitioners as Queen's counsel. In fact, there are several reputed home grown QCs in leading law firms. Some law firm partners have gone on to distinguish themselves as judges of the High court and Court of Appeal too. Chief Justice Sundaresh Menon of Singapore is an illustrious example of a one-time law firm partner who was subsequently designated as a Senior Advocate. He then adorned the office of the Attorney General, before being elevated as a judge in the Court of Appeal and soon thereafter as Chief Justice of the Supreme court there.".[In Camera] Death by a Driverless Car, Law in Artificial Times: KV Viswanathan.On similar lines, Senior Advocate Darius Khambata said, "International commercial arbitration can be every bit as intense and rigorous as a complex hearing in court . Often it is more demanding with fully read arbitrators , strict time limits for cross examination and oral arguments and comprehensive advance written submissions . It requires lawyers of the highest calibre and lights the path forward for how all litigation should be conducted"..Behind the Bookshelves: Darius Khambata .Bar and Bench also spoke to Justice AK Sikri, Former Judge, Supreme Court of India, on the contents raised in the letter. He stated, "It is widely accepted that arbitration has gained much popularity over a period of time. While on the one hand arbitration is gaining momentum and has become a preferred choice for resolving disputes between the parties of different jurisdictions (in the form of International Arbitration), such arbitrations are becoming complex as well because of the intricacies of the issues involved. Such disputes need to be handled by the practitioners with expertise. It has, of necessity, persuaded many lawyers to practice exclusively in the filed of arbitration. Appearance of such lawyers is largely before the Arbitral Tribunal. In the process, though the arbitrators come to know of the prowess, ability and competence of these lawyers, because of their limited exposure in the Court, these arbitration practitioners do not get adequate opportunity to show their talent before the Judges in the High Courts/Supreme Court. This becomes handicap for them to be designated as Senior Advocates even when they richly deserve to be so. It is, for this reason, I support the demand of IAF for designating competent and deserving arbitration practitioners as Senior Advocates." "For almost similar reasons, we need capable advocates from arbitration fraternity to be appointed as the Judges of the High Courts as well. After all, dispute resolution through means of arbitration is a hybrid process where the role of Courts also assumes paramount significance. ‘Judicial Policy’ in dealing with arbitration matters has to be such which is perceived as arbitration friendly. Because of the complexity of the issues involved, they need Judges who have expertise in arbitration law to effectively deal with such matters. In the process, such Judges can play important role when it comes to enforcement of awards and thereby contribute to ‘ease of doing business’", he added Justice Sikri concluded with the affirmation stating, "I am confident that the representation of IAF shall be given due consideration which it deserves"..[Read the IAF letter]