The International Chamber of Commerce’s Young Arbitration Forum (ICC YAF), in collaboration with P&A Law Offices, conducted a Masterclass on the Enforcement of Foreign Arbitral Awards on Saturday. The event was held at the FICCI Federation House in Delhi and spanned over seven hours.
The inaugural session of the event featured addresses from legal dignitaries like Supreme Court judge Justice Sanjay Kishan Kaul, Delhi High Court judge Justice Navin Chawla, and Senior Counsel Gopal Subramanium. The welcome address was delivered by the Director of ICC Arbitration and ADR South Asia chapter Abhinav Bhushan. The Masterclass was curated by the Indian representative of ICC YAF Shashank Garg.
A set of guidelines on Conduct of Arbitral proceedings prepared by The Indian Arbitration Forum (IAF) was released by Justice Kaul after his keynote address. The closing address was delivered by the former Chief Justice of the Jammu and Kashmir High Court, Justice Badar Durrez Ahmed.
The primary theme of the masterclass revolved around arbitration, with a specific focus on enforcement of foreign awards. One of the subjects that featured in almost every special address was the distinction between “seat” and “venue” of arbitration.
Gopal Subramanium, in his special address, highlighted that the true spirit of arbitration is that it is a one-stop solution and ensures that parties have autonomy to choose the procedure and the arbitrators.
Calling for the minimal interference of the judiciary in arbitration, Subramanium said that Indian courts need to be clear about the grounds on which an award is challenged and must satisfy themselves about the merit in those grounds according to the New York Convention. As a message to the members of the Bar, Subramanium also said that lawyers ought to be as dedicated to arbitration as they are to other suits. He said,
“Once you accept a brief, it cannot be secondary to your court work…Arbitration is a very specialized area of practice…it is deeply satisfying, it is soul satisfying. You will find that it is a deeply gratifying part of the profession.”
Justice Navin Chawla focussed his address on the amendments made to the Arbitration and Conciliation Act of 1996. Justice Chawla said that the amendments made to the arbitration legislation give confidence to foreign bodies about the minimal interference of the courts in the procedure.
However, echoing Subramanium’s thoughts, Justice Chawla too pointed out that the constant fight between “seat” and “venue” of arbitration is the main issue affecting arbitration at this time. Seeing a brighter future for arbitration, he said,
“The way our Courts have progressed, it shows that arbitration forums are not additional adjudication forums but rather alternate adjudication forums”
Justice Kaul, complimenting the Indian Arbitration Forum (IAF) for setting out a set of guidelines for the conduct of arbitral proceedings, pondered,
“I was very happy to browse through the guidelines for the conduct of arbitral proceedings set out (by IAF) and a thought crossed my mind… should not such guidelines be set out for court proceedings as well?”
This thought of Justice Kaul was met with applause from Gopal Subramanium. Justice Kaul also touched upon various aspects of arbitration and foreign awards, particularly the connection between foreign awards and what constitutes the public policy of India. Quoting Justice Burrough, he said, “public policy is an unruly horse, and when once you get astride it, you never know where it will carry you.”
Talking about foreign awards which may be contrary to public policy, Justice Kaul says that he believes that sometimes it’s easier to point out what is not public policy than to lay down what constitutes public policy. He said that if an award is contrary to what is stated in the Preamble, Fundamental Rights chapter or Directive Principles chapter of the Constitution, it would be opposed to public policy.
Justice Kaul also delved into the jurisdiction and the perception of the jurisdiction of the Courts. Saying that the courts in India “intrinsically think that they are appellate courts”, he said that the same doesn’t hold true in case of arbitration.
“There is a role to be performed by every Court, the Highest Court, an Arbitration court or an Appellate Court. All the Courts have a specific jurisdiction and every jurisdiction has its ‘Maryada’. One won’t sit in an Arbitration Court in the same way they sit in an Appellate Court or the Highest court.”
He said that both the Bar and the Bench need to take color from the principles of speedy dispute resolution.
“I think aside from classes for advocates, there should be classes for judges also so that we understand what approach has to be followed in these matters so that we are not entangled in the issues that go on in arbitration process”, Justice Kaul jested.
The Masterclass consisted of four sessions:
The masterclass concluded after Justice BD Ahmed spoke on the Arbitration and Conciliation Act in India and gave his take on the subject in his closing address. This was Justice Ahmed’s first public appearance in the capacity of an arbitrator.
