“No one has the appetite for litigation” following the COVID-19 crisis: Harish Salve during Shardul Amarchand Mangaldas panel discussion

A panel discussion on Effective Management of Litigation and Arbitration hosted by Shardul Amarchand Mangaldas on Tuesday saw Senior Advocate, former Solicitor General of India and Queen's Counsel Harish Salve make pertinent remarks on the future of legal practice after the COVID-19 pandemic..The discussion also featured various partners of Shardul Amarchand Mangaldas (SAM). The session was moderated by the firm's Managing Partner, Pallavi Shroff..Shroff kickstarted the discussion by posing queries on litigation management, the role of in-house counsel, the strategy to be adopted by in-house counsel, and the role of external counsel. .She also asked Salve to share his his thoughts on how the courts are likely to function post-COVID-19.."No one has the appetite for litigation".Salve observed that the pandemic has put life into perspective for a lot of people, who have also started to re-evaluate whether disputes should be taken to courts. In this regard, Salve remarked,.“People have realised that litigation is the most worthless exercise. Budgets for litigation has gone down. Never in my life have I experienced clients telling me ‘do you mind cutting your fee back?’ It’s happening for the first time. Normally I would throw a tantrum, but now I say, ‘for sure, of course, I understand.’ … Believe me, no one has the appetite for litigation. Litigation is the last thing on anyone’s mind.”.He further noted,.“If you can live without something for 6 months, you can live without it. If the world has lived with minimal litigation for six months, people will be looking for ways in which they can live without litigation.”Harish Salve.He opined that the role of lawyers may change from “putting something together” at the early stages of a transaction on the belief that problems, if any, can be resolved if they arise in the future. Rather, the lawyer may have to focus on avoiding such conflict, thereby “pushing litigation to the last possible option”, Salve said..Ameya Gokhale, Partner at SAM, pointed out that disputes tend to be rooted at the inception stage of a transaction..These can be solved, at times, by clarifications or the use of simple language at the stage of drafting a contract. In this view, Gokhale remarked that it is important for lawyers to enter at the stage of contract drafting..SAM Partner Ajit Warrier also spoke on the role of in-house counsel when it comes to managing litigation..He highlighted the need for evolving an early crisis management system, so that in-house expertise is brought in to guide the parties to a favourable outcome upon the detection of early warning signs of a possible dispute..While earlier, litigation had a “winner takes all” approach, Warrier said that now, instead of staking "your all" in a litigation, you can have parties trying to resolve elements of a dispute through other Alternative Dispute Resolution (ADR) mechanisms..The irreconcilable part of the dispute may be left to litigation or arbitration, Warrier added..Need to ensure focused litigation post-COVID-19.Salve opined that after COVID-19, it is important to ensure that litigation is focused, compact and efficient, rather than to let it fall back to the “conventional ‘slow dance’ that litigation tends to become.”.The approach of all sides should be to spot trouble and open dialogue. In this regard, he noted that the COVID-19 pandemic has ushered in an atmosphere of more cooperation and understanding..“I am not minimising (the difficulties)”, he clarified, acknowledging that the pandemic period has been terrible for young lawyers.."But that too shall pass”, Salve said, adding that, “What hopefully will not pass is this better understanding of each other and this sense of trying to reduce conflict wherever possible. This should be the new mantra going forward for all of us.”.SAM Partner Siddhartha Datta opined that litigation strategy should be done upfront. Salve agreed with this, adding that this strategy must be charted out right at the beginning of a dispute. This strategy should “live with you till the day you receive the judgment”, he said..Datta also echoed Salve’s views that litigation has to become more focused so that “exaggerated claims and inflated reactions” are avoided and the real issue is taken to court. .He recalled remarks made by United States Chief Justice Roberts to emphasise that,“You have to narrow the decision-making window for the court.”.On virtual court hearings.Regarding the prospects of virtual court hearings, Salve pointed out that "Some of the judges have openly said, this has come to stay.".He cited the example of commercial courts in the United Kingdom, which have declared their inclination to continue virtual hearings where there is no need for the examination of witnesses..While some judges are reluctant to adopt the technology, others have embraced it. Some of the Supreme Court judges have also observed that they could get used to virtual hearings, Salve noted..He added that there were advantages to virtual hearings. For one, courts are able to focus on one hearing at a time, and the general phenomenon of lawyers crowding the courtroom is not encountered..However, Salve acknowledged that good software for conducting such virtual hearings is important. He noted that it would be ideal if the software is such that it allows the communication of body language..“If you have a good software, where you can see the body language… you do manage to tune into the judge, for want of a better phrase”, he explained..However, he added, “It is not as good as in a live courtroom.”.Incorporating virtual proceedings in arbitration.While responding to SAM Partner Tejas Karia, Salve noted that it is quite possible in arbitrations to have a greater role for virtual cross-examination..Salve pointed out that not every witness in an arbitral proceeding needs to be challenged heavily. Such witnesses can be examined virtually as well..Another query posed was whether arbitrators can compel parties to go for a virtual hearing. SAM Partner Rishabh Gupta opined that that there is no reason why an arbitral tribunal cannot compel a virtual hearing..He noted, “I have never seen arbitration agreements that say an ‘in-person’ hearing is required. There are agreements now that say that virtual proceedings should be allowed.”.Salve observed that an element of informality may have to be introduced in order to incorporate virtual hearings in arbitration..He added that procedural aspects of arbitral proceedings should completely be dealt with through virtual means. Moreover, post-evidence closing submissions can also be conducted virtually..He further noted that there was “no need for everyone to assemble again in one place for three days. That is a permanent change that should be made..During the discussion, SAM Partner Ila Kapoor also spoke of her experience being part of an arbitration case that was conducted virtually, recounting that aspects such as document management and witness management were efficiently carried out. She opined that while there are challenges, it can be overcome with the evolution of technology..On the need to change mindset of appointing judges with no domain expertise as arbitrators.SAM Partner Nitesh Jain observed that in selecting an arbitrator, it is crucial that the person has relevant expertise, is sufficiently available to complete the process within statutory time limits, and is independent..Pertinently, the first criterion now is also whether the proposed arbitrator is comfortable with conducting a virtual hearing, he noted..While agreeing with Jain that the selection of an arbitrator was crucial to the arbitration process, Salve also took critical note of the general tendency to appoint retired judges of the Supreme Court or the High Courts as arbitrators in India, even if they do not have relevant domain expertise..This is a mindset that needs to change in India, Salve opined. .In international commercial arbitrations, for instance, he pointed out that arbitrators with zero domain knowledge and absolutely no commercial experience are picked. On the other hand, their international counterparts "come virtually like barristers prepared for a case”, Salve said..To explain the difficulties that would arise in cases where arbitrators without domain experience are picked, Salve referred to his experience before the Bombay High Court in the Enron suit, as well as a more recent example concerning a hearing in the Franklin Templeton case before the Supreme Court..He went on to observe,.“In arbitration, you have to remember, it is a remedy without recourse...So selecting an arbitrator is extremely important. He must have domain knowledge, he (should) have an attitude to come prepared...”.The discussion concluded after a question and answer session.