India not yet a preferred arbitration seat, cultural shift needed across judiciary and Bar: Justice Manish Pitale

Bombay High Court judge Justice Manish Pitale stated that India is currently not featuring as a preferred seat for international commercial arbitration and judiciary, legislature, and the legal profession must work in tandem to drive institutional change.

The judge delivered the special address at the ICC India Arbitration Conference in Mumbai.

Justice Pitale noted that international disputants evaluate whether a jurisdiction's domestic legal framework aligns with global standards before selecting an arbitral seat. 

“India, at the present moment, is obviously not featuring there as one of the preferred seats. What's the reason for this? Where are we going? It's something we need to think about,” he said. 

The judge highlighted the paradox of Indian businesses choosing foreign venues for dispute resolution.

“I came across one (section) 34 challenge in my book where both parties were Indians but the seat of arbitration was Singapore so we have to think why this is happening,” he observed

Justice Pitale pointed out that hearing challenges to arbitral awards under Section 34 of the Arbitration and Conciliation Act requires specialized judicial experience rather than an appellate civil court mindset. 

“The tendency of subconscious thinking of a judge perhaps is like that of a medical report. It should not be. So this cultural change has to happen, for which you have to have judges who are specialized, who have had exposure to arbitration,” he explained. 

Justice Pitale remarked that the domestic legal bar must also transition towards institutionalisation and specialized full-time practice. 

He emphasized that arbitration cannot remain a casual pursuit, noting that a dedicated arbitration bar is essential for professional assistance. 

“The whole purpose of arbitration is to do resolution and if it leads to bringing people back to square one how is it a solution?” he observed.

Justice Pitale concluded that voluntary adherence to basic minimum ethics like impartiality, independence, and timely disclosure will help resolve friction between domestic public policy and global practice. 

This may enable India to emerge as an international arbitration hub.

The conference also featured three technical panel sessions addressing key areas of arbitration practice.

The first session was a fireside chat on monetary remedies in arbitration. It was moderated by WongPartnership partner Smitha Menon. The panel featured former Chief Justice of the Allahabad High Court Justice (Retd.) Ferdino Rebello, Osborne Partners principal Ishani Vora, and JSA Advocates & Solicitors partner Pratik Pawar. 

The panelists examined damages valuation, instructions to quantum experts, and the risks of putting forth inflated claims. Justice Rebello stressed that damages are not a windfall, observing that parties frequently fail to produce critical path delay software analysis or formulate fallback claims under Section 73 of the Contract Act.

The second session on asset recovery in arbitration amid the age of digital assets. It was moderated by 39 Essex Chambers barrister Karishma Vora. The panel comprised Cecil Abraham & Partners partner Aniz Ahmad Amirudin, Khaitan & Co partner Manavendra Mishra, Trilegal partner Juhi Mathur, and EY Forensic partner Vinay Garodia. 

The speakers discussed tracing stolen cryptocurrency, digital forensics, and obtaining court-assisted disclosure remedies like Norwich Pharmacal and John Doe orders. The discussion also explored worldwide freezing injunctions and emergency arbitration mechanisms such as tribunal-controlled multi-signature escrow wallets.

The third session concluded with an Oxford-style debate on whether ethics in international arbitration should be codified. It was moderated by Fountain Court Chambers barrister Zal Andhyarujina SA. 

Chambers of Naresh Thacker independent counsel Naresh Thacker and Linklaters counsel Jacqueline Chaplin spoke for the motion, arguing that soft law guidelines create an unenforceable accountability vacuum that leaves international arbitration an ‘ethical no-man's land’. 

Rajah & Tann partner Devathas Satianathan and AZB & Partners partner Priyanka Shetty opposed the motion, contending that a rigid universal code would erode party autonomy, encourage guerrilla tactics, and over-regulate the arbitral process.