We have not yet achieved what Singapore, Hong Kong and London have achieved: Justice Tejas Karia on India's arbitration prospects

Trust in India as an arbitration seat cannot be created by legislation alone, Delhi High Court Justice Tejas Karia said at an ICC debate on India’s arbitration reforms and foreign lawyer participation.

"...trust building cannot happen by way of legislation. It has to come from within,” he said during an Oxford-style debate titled Two steps forward, one step sideways: can India’s arbitration modernisation co-exist with the continuing uncertainty under the BCI Rules?

The debate, moderated by Viren Mascarenhas, Founding Partner, Mascarenhas Law PLLC, saw Senior Advocates Diya Kapur and Saurabh Kirpal argue in favour of the motion, while PSL Advocates and Solicitors Founder and Managing Partner Sameer Jain and independent arbitrator Mariel Dimsey opposed it.

Justice Karia said that though India has made significant progress in arbitration over the past decade-and-a-half, building confidence in India as a preferred seat requires a broader ecosystem beyond legislative reform.

He stressed that collaboration between Indian and foreign lawyers strengthens credibility and capability in arbitration.

“I have seen in my previous work as a law firm partner, coordinating and collaborating with foreign law firms always enhances the capabilities and credibility of the services which clients expect.”

Justice Karia also underscored the importance of party autonomy and acknowledged that India has yet to match established arbitration hubs.

“However, India has not yet achieved what Singapore, Hong Kong and London have—having arbitrations seated in Indian cities. We already have the pool of lawyers and a court system that supports the arbitration process. What we need is a seat that offers certainty in timelines and processes, and inspires trust among parties choosing India as the venue for arbitration.”

Concluding his remarks, Justice Karia said that modernisation and regulation are not mutually exclusive and that the framework may require refinement as India continues to progress.

Kapur argued that India’s arbitration ecosystem has already undergone significant modernisation and that the Bar Council of India (BCI) Rules on entry of foreign lawyers and law firms do not stand in the way of further progress.

She said that the BCI Rules simply clarify that foreign lawyers cannot practise Indian law and rejected the suggestion that BCI rules pose an obstacle to progress.

“I don’t think there’s anything in the Bar Council rules which prevents modernisation of Indian arbitration.”

Sher emphasised that Indian arbitration now rests on a strong arbitration bar and sophisticated arbitrators who are fully capable of handling Indian law issues before arbitral tribunals.

Kapur also pointed out that the BCI Rules allow collaboration between Indian and foreign law firms, which enables knowledge sharing and cross-border cooperation without undermining domestic regulation.

Kirpal supported the motion and cautioned against equating modernisation with deregulation.

“Modernisation is not absolute deregulation.”

He rejected the suggestion that India would lose its appeal as an arbitration destination because of the BCI framework, noting that the country’s growing economy itself attracts disputes.

Kirpal also warned that unrestricted entry of foreign law firms could create structural and economic imbalances affecting the domestic bar. He said Indian lawyers face regulatory constraints such as restrictions on advertising, while large international firms may have financial and structural advantages.

He stressed that gradual liberalisation has been the norm globally and that India should follow a similar incremental path that allows the domestic arbitration bar to develop.

Arguing against the motion, Jain said that India cannot become a globally competitive arbitration seat while foreign lawyer participation remains restricted or uncertain.

Jain framed the issue as one of client choice and party autonomy, arguing that even in disputes without substantive Indian law questions, foreign counsel face regulatory ambiguity.

Dimsey highlighted the practical impact of regulatory complexity and approval requirements for foreign lawyers.

“If there is a fear of coming into India to work because you might fall foul of these ambiguous rules, the result will be in the midterm that parties will simply look elsewhere."

She said that leading arbitration hubs provide clearer carve-outs for foreign participation in international commercial arbitration.

Another session examined the practical and enforcement challenges posed by defaulting parties in arbitration Senior Advocate Gaurav Pachnanda, who was the moderator, framed the discussion around the tension between minimal court interference and the need to preserve procedural fairness when parties refuse to participate or adopt obstructive tactics.

DSK Legal Partner Dinesh Pardasani outlined common forms of non-participation - including complete non-appearance, intermittent engagement and delays in filings or payment of institutional fees. He emphasised the need for tribunals to document procedural steps carefully, provide reasonable opportunities to participate and adopt pragmatic measures to keep proceedings moving while safeguarding fairness.

Cyril Amarchand Mangaldas Partner Amita Gupta Katragadda discussed the growing overlap between arbitration and court proceedings, noting that anti-arbitration and anti-suit injunctions often require coordinated litigation and arbitration strategies. She highlighted the importance of ensuring that procedural decisions withstand judicial scrutiny.

Linklaters Partner Andrew Battisson focused on enforcement risks under the New York Convention. He stressed that tribunals cannot treat default as a shortcut and must still examine jurisdiction, test evidence and assess the merits of the participating party’s case to protect the enforceability of awards.

Senior Judge of the Singapore Supreme Court Judith Prakash emphasised the judicial perspective, stressing the need to balance efficiency with due process so that awards remain robust when reviewed by courts at the enforcement stage.

In her opening remarks, ICC International Court of Arbitration President Claudia Salomon highlighted India’s growing importance in global arbitration and the ICC’s role in ensuring enforceable awards. She said that India has become one of the ICC Court’s top priorities and noted that it is among the countries she has visited most frequently since taking office.