So Rikas, should I start? One minute, sir. Everybody wants to build a career. And that too, once if he's a professional in the legal fraternity. He believes that what is the best way forward to build a career as an arbitration. And who else can better explain this aspect than Mr. Heeru Adwani, who is the founder and the chairman, Adwani law and authority on international and domestic arbitrations. If we just watch the, or look into the judgment, wherein a substantial question of law in respect of arbitration has been discussed. Some way or the other, we find Mr. Adwani's role as a lawyer and in a lot of judgments, his name has been appreciated regarding the contribution. I will not take much time and ask Mr. Adwani to take over the, over to you, sir. Thank you very much, Rikas. But I think it is important that we all consider at the beginning, at the start, that is arbitration in India effective and a good worthwhile career, or does it have problems? I think the answer has to be a mixed question, because I have now been hearing all the way from our Chief Justice of India and several judges of the Supreme Court, several judges of the High Court, a very imminent panel of lawyers and judges who recently held the Delhi arbitration week, all talking about the virtues of arbitration. A lot of them are very learned, a lot of them are very knowledgeable and a lot of them have very good intentions. But the questions that sometimes we need to ask ourselves are good intentions sufficient and are these good intentions being translated into action or are they just being lip service for reality? Arbitration has been very popular all over the world starting off with the US, Europe and then of course came the Asian Giants, Hong Kong, Singapore and now of course attempts are being made in Dubai, Abu Dhabi and more recently in Riyadh in Saudi Arabia. Typhus recently is speaker at the Paris arbitration week which is all of last week and I asked myself one question, we have so many imminent lawyers, so many imminent judges who all extoll the virtues of arbitration and Paris which is considered or was considered the centre of global arbitration, how come I was the only Indian speaker there, there was nobody else and there must be some historical background to this as to why in so to speak the centre of arbitration, there is only one Indian speaker on arbitration and for me it was exceedingly disappointing not to find a large number of my colleagues, meet lawyers, meet judges also talking to arbitration. Of course arbitration was in Paris because the ICC headquarters is in Paris and so far the ICC probably, International Chamber of Commerce has been the most successful arbitration institute in the world. The maximum number of arbitration are done by ICC but of course not necessarily in Paris, it could be in London, it could be in France, it could be in Germany, it could be in Sweden, it could be Dubai, it could be Hong Kong, it could be Singapore and ICC is at least was considered a forerunner of all arbitrations. Now we have known historically in India, we had the 1940 Act and of course when the UN Central Model came out very nicely, we all got on to the UN Central Model in 1996, we had an excellent new arbitration act in India which is now been amended three times in 1915, 2015, 2019 and 2020. All very progressive signs that India is serious about arbitration, wants to attract arbitrations and was making efforts to do so. You still ask yourself as lawyers, if we had international clients, would you recommend India as an arbitration seat? We have a very progressive Supreme Court, many high courts, which give very, very strong pro-arbitration decisions and one particular decision in particular about the group of company doctor and I shall refer to it later, which is a very progressive decision which probably one of the first few times broke away from English law, although English laws consider the bed and the father of common law litigation but India chose to go one step ahead and broke away with this common law tradition and this particular decision. So now arbitration, we have an arbitration law in India which contemplates arbitrations completed in a certain particular time and by and large it's being followed. Sometimes the courts grant extensions rather liberally I think instead of saying that if you do not finish within the time of the arbitration act we will simply replace you as an arbitrator. But I have seldom seen that being done. Courts will simply grant extensions and say, no we understand it has to be done etc etc and there's a pro and con to that. The pro is of course the link of the arbitration then broken. People don't have to have a second round of hearing and have the same thing third second time and third time. The con is that unless you are willing to lift your standard and say look we have fixed the time limit, if you don't finish in the time limit I'm sorry we are going to remove you. We are going to change you and replace you in the arbitration and so that will set a new tone to all arbitrators please finish your arbitration in time. If you do not finish the courts will remove you and once they do that your name as an arbitrator will be spoiled and courts will not appoint you again. There are several reasons behind this and one of them is probably in India is the only place in the world at least as far as I know I could stand corrected there towards the other places where the courts appoint the arbitrators. You want an arbitrator for a domestic arbitration. You have to file a section 11 application in the high court of India and incredible if you want an arbitrator in an international arbitration you have to go to the supreme court of India the highest court in the world which fight the self on deciding constitutional matters and lot of other very very important matters to appoint an arbitrator. It just seems incredible that although the Indian arbitration act has been amended to somehow permit institutions to appoint arbitrators India is the only place in the world and if I want an arbitrator pointing I need to go to the supreme court in India to appoint an arbitrator and if you look at it realistically do they have a base do they have some kind of panel or record of arbitrators who they should appoint who have experience in particular subject matters or who have a point in particularly important matters the answers no. They go back to the old fashioned way let's appoint retired judges and don't get me wrong some of our judges are very fine and do an excellent job in arbitrators but they're not the only people who can do arbitration you have to bring up a whole generation of lawyers who not only set as counsel in arbitration but who are fully capable of deciding disputes as an arbitrator you just do not have a generation of arbitrators in India you only have retired judges and the same retired judges barring a few exceptions has zero experience in our international arbitration no other institution globally be it Hong Kong institution of arbitration Singapore, Dubai, LCI, London Court of International Arbitration ICA, Sweden, Switzerland, Finland appoint retired judges as arbitrators how come we are the only exception and why are we the only exception that cannot find young outstanding lawyers and I mean what I say when I say outstanding I mean what I say when I'm young alright if you don't find young why not older lawyers you have a large number of senior counsels you have a large number of experienced lawyers why aren't courts appointing them as arbitrators because if you look at it realistically a supreme court judge retired at the age of 65 he is continually appointed as an arbitrator till 70-75 and because each arbitration takes so long so you have an older generation of arbitrators what about a younger generation of lawyers who have practiced who are serious who have worked so hard or worked their hearts out why aren't they appointed as arbitrators when are you going to give them experience when they are 80 years old, 90 years old these are the kind of hard questions we ask in arbitration in India the other harder question is look, realistically the court system in India is broken down and I mean that it has broken down to an extent then if you had a commercial suit they have a simple claim of 50 lakhs or rupees, 5 crores, 10 crores, 50 crores or rupees how long will it take to be heard for speaking for older lawyers not in their lifetime so we have a system of courts which are broken down to such an extent that commercial work just does not go on there and I am going to give a prime example if you have an arbitration award we know that in India domestic arbitration virtually every award is challenged in a court of law good, bad or indifferent parties will challenge it now we made a giant step a giant step in the amendment of our act to say that if you want to challenge the arbitration award then you will be required to deposit the award amount in court for a large part of it so that once it is done at least the party knows once I go through the hardest process of courts I'll have to see the color of money now you look at it on an average to get an application heard in court to deposit the money now talking two to three years how long would it take to have an award challenged under section 34 heard in courts to court at varies I know in Bombay which used to be considered the premier commercial court in India you have one judge hearing these matters how long is it going to take you eight or ten years for a single judge here is your challenge whether you are awarded a good award or not a good award you first take three years to get a challenge to deposit the money in court then you go another six, seven years to understand whether that's a good award not a bad award should be set aside not be set aside our supreme court has signed large number of decisions do not interfere with the world do not interfere with the world do not interfere with the world sometimes when you appear in the courts be the district court or be some high court you almost get the feeling that they have not read the supreme court judgments they start with give me a list of dates give me the facts what happened what didn't happen and almost hear it like an appeal the premier courts in Delhi are somewhat better and they will hear it much more concisely precisely and within a better time limit then you have a first time of appeal you go to division bench if you come from a district judge you will go up into the high court another five years seven years then you will go to the supreme court having said that the improvement in the supreme court is so much by and large they will reject it at the SLP stage by and large some important matters of course they will hear a sin and in one matter I agree it's an important matter and I agree the supreme court judges are very good no complaint about it they were hearing a five judge bench was hearing a curative petition which means it has been heard by a single judge and affirmed it has been heard by a division bench then affirmed it is heard by a supreme court judge and the court award is affirmed then there was a review petition and now a five judge bench of the supreme court hearing a curative petition and an arbitration award I mean would you find this in any other court in the world 10, 15, 20 years to hear whether you are awarded a good award or not a good award I mean I know what is our alternative you can't file a claim in court that will take you another 15 years but why are arbitration being dragged out the same way as if it's a claim in court for another 10, 15 years by the time the court is satisfied that a very imminent supreme court judge retired supreme court judge has now managed to write a correct award I mean I think that and you go to any conference you will hear imminent supreme court judges saying India has now improved its arbitration system we are going to have a hub of international arbitration and all good they say all these good right things and conferences but they just refuse to look at the reality on the ground you cannot get an award affirmed in India for less than 10 years and at 10 years you are lucky so the whole arbitration atmosphere in India so to speak is taken apart by the standard feelings of our court is there so slow okay now let me talk a little bit more realistically of a career in arbitration once again you know every supreme court judge say we must have an arbitration bar and a bar of lawyers who a bar separate bar which is only specializing in arbitration the same we have an NCL team the same we have an income tax same we have in labor courts very wide variety of tribunals and courts and there is a specialized bar there is no specialized arbitration bar it is the biggest solution for commercial work but there is no arbitration bar and it is because the courts are a blockage but having said that now let me try and encourage young lawyers to take away some of the negative feelings that I've been expressing and say why not now encourage young lawyers to go to arbitration how do we do it one of the issues is lawyers practicing in different high courts have no experience in cross examination they argue matters they argue repetitions they argue motions they argue all kinds of matters but arbitration work requires cross examination of witnesses and how many lawyers have had experience of that yes some have had in a criminal court in a magistrate's court session's court we have but they are doing specialized criminal work as civil lawyers unfortunately less and less of us lawyers have experience in cross examination so so to speak in the arbitration when you go very often for the first time you are doing a cross examination when you're doing an arbitration so my first advice to lawyers is please don't ask him you can practice in the supreme court and tomorrow morning saying I want to be an arbitration lawyer the supreme court is the highest court of the land best of lawyers are practicing there best of judges are there but that does not mean you have experience in arbitration you must essentially get some level of practice in cross examination preferably in civil matters to see that you are able to make points which will impress arbitrators and don't forget the arbitrators are very experienced be they retired judges be it whoever they are they are very experienced they understand cross examination and they understand the importance of factual representation not necessarily the law look what are the facts first before we get into the law how do we impress a tribunal with facts except through cross examination yes good pleadings very essential then you go to the next most important thing in large arbitrations is documentation where have you had experience in putting together a voluminous documentation in one of the most important aspects in India which is a growing country a lot of our arbitrations are based on infrastructure be it construction of roads railways airports refineries it's all a question of construction law and construction law is based on a record of events that have been taking place throughout the project and throughout the project these projects sometimes the smaller projects I agree in larger projects there are four five thousand ten thousand pages of documents so it becomes important that we all get somewhat familiar with digitalization so that we can digitalize the documents because obviously you would not look at ten thousand documents but there be one out of ten out of these ten thousand documents which are important and some arbitrator will point it out to you some witness are pointed out to you don't forget the witness will know all these documents they've created the document they're familiar with them and as a arbitration council you have to be even more familiar with them because you have not experienced the actual project but you've got a cross exam and the witnesses on documents he has created or your team has created as to what went wrong in the project because arbitration is about disputes the disputes exist because things have gone wrong so first essence of arbitration lawyers please understand your backup documents are the most important part of your arbitration it's not like in a court you can say also okay I'm going to my client I'll get the documents tomorrow I'll get them after a week I'll get them after a month arbitrator and experienced arbitrators would expect you to have all the documents filed in advance when in advance in India they still although the evidence act does not apply civil procedure act doesn't apply they still go to the process of file affidavit or document proving documents knowledge is completely unnecessary but it's something we understand that that all the arbitrators are retired judges all that they're doing is bringing a courtroom practice here in court room it will done file affidavit of documents prove documents deny documents in an international and an international arbitration has unheard of is there a serious doubt on some documents yes you certainly will bring it up but you don't have to go through masses of 10,000 documents admitting denying admitting denying and taking six months about it you have to be a little more practical and say that look the evidence act does not apply it does not mean it does not apply but I'll apply it in principle which is what most arbitrators do civil procedure code doesn't apply but I will apply it because we've all grown up with the civil procedure code we've grown up with the evidence act it's almost like you're sometimes going to train the arbitrators and say so but he's understand the civil act civil procedure act the evidence act does not apply for a good reason we want to speed up thing we want to expedite thing we want to move on and that is why because it's very very unnecessary the civil procedure act does not apply and everything why do I need to file an affidavit of documents admission and denial and goes on for months on end but you have to live with the arbitrators so if you wanted to do it you have to go through the process so get ready with your documents and fortunately they've at least cut down something they will accept affidavit and examination chief by way of affidavits you don't have to orderly read examination chief and affidavit but what instead of making an affidavit on facts most lawyers simply copy out the claim each each witness evidence will come there will be one more copy of the statement of claim or statement of defense please please try and get beyond that please try and get down to a narrow thing where you have look these are the relevant points those are the relevant points that will decide the issue let your affidavits be concise precise so that you know exactly the issues involved you know the issue that you are proving and then know the issues that are are critical you do not have to repeat the entire statement of claim in the affidavit and have the affidavit witness cross-examination go on for days on end just to give you examples when you do an international arbitration most Indian lawyers will be taken by a little bit of a surprise when the arbitrator say we fix a time limit okay you want six days for cross-examination of your witness is fine you divide the time how you want but it will not go beyond six days under six days it will end and if you have not brought some witnesses come not come and you have not brought important witnesses too bad you are left out but in India it is not done like that you have to cross the examination endlessly carry on and on with the arbitrator the exercising virtually no control sitting back as like a judge and listening to everything and saying we will see later alright ask whatever you want we will see why can't we ask we pay our arbitrators quite well they are paid for their job why can't they read the papers in advance why can't they have knowledge of the matter enough to control the arbitration to say look I think this is completely irrelevant to satisfy me it is relevant and I will let you ask as many questions as you want I will not let you keep asking questions just because you have a good time or just because the council is being paid on an early basis or a daily basis or whatever you have and so these arbitrations drag on and on and on as young arbitrators who are developing a career in arbitration please monitor your time please monitor that you want to finish the arbitration as soon as possible please understand your client does not interest in dragging it out your client wants a result he wants to see the award he wants to see the award in six months one year he does not want to see it in five years and so therefore concentrate concentrate on your time concentrate concentrate on your quality of cross examination you are not required to ask him questions on every sentence how do you know this where did you get this you have documents to back it if the documents are there they are there if they are not there they are not there you are not forced to put every document to the witness yes a critical one certainly you have to so it's a question of developing judgment it's a question now of younger lawyers pushing out older lawyers and saying we are going to do this much faster if the court says six months for pleadings and in one year finish the arbitration we will finish in one year we owe it to our clients to finish in that one year and give them as good a result as we can nothing is perfect some things will be forgotten some things may be missed but we have time limits and let's exercise those time limits then let's go to the commercial court judges and say so you also are on a time limit the commercial court says you will finish this in 18 months please finish my case in 18 months well I don't have an answer for my client why are they taking 5 years why are they taking 10 years by the time you see the color of money so we want younger lawyers to push it hard some of the laws are in place some of them are not some of them will keep improving over time and these will happen so as young lawyers who are going to arbitration your first emphasis first emphasis on time how fast can we do it not how slow how long it is your clients will approve it they'll be happy they'll be happy to pay you better money for it and say look please finish our arbitration ultimately we want a result we are an arbitration because Indian litigation is a mess it's going to take me 10 15 years 20 years to finish a case we're not interested in that I'd rather settle the matter and work away so please emphasize the time element is very important it is very important to your client these are commercial matter these are not issues of principle that are to be fought all the way to the supreme court you simply have to be finished in arbitration and so as and when you go and get more and more experience in arbitration first learn the art of putting a brief together which is paperwork put in a digital thing and then the arbitrate is put in your computer and go and read it I don't have to hand you master master three thousand four thousand piece of paper you have a chief justice of India who is emphasizing digitalization digitalization you have a large number of judges who are saying that why can't arbitrate and adopt the same philosophy just give me a pen drive I'll put it in my laptop and I'll read it you want to show the witness a document put it up on the screen and show it to him why do we need masses and masses of paperwork just to show a client what a good job we are doing we want to step back a little bit and try and finish this within a reasonable time and you can't change the courts you're not the judges you can't make them speed up everything you can try and I have tried very hard notoriously unsuccessfully but we all as Indians who are very proud of our country who also see that the changes are happening in our country want to make them happen push why don't we have a better institution why do I have to go to the supreme court to appoint an arbitrator and who the supreme court says has decided nothing he says the primary phase she just seems arbitrable now you go to the arbitration and decide whether it's arbitrable or not arbitrable you have section sixteen applications whether this particular issue for the arbitration not a supreme court of India should not be hearing these matters it should be an institution and I'm saying this with experience I was a member originally of the CAC arbitration center court now what does the CAC court do you have a board of directors who promotes the arbitration institution the court simply decides administratively we do not hear parties we do not have judicial powers simply decide though can we combine these arbitrations can we take a view whether the non-security should be party to the arbitration not party to the arbitration can't we give directions then let the arbitration finish in so much time it can't be as a court be efficient and appoint an arbitrator in 30 days and not take five years to appoint an arbitrator do it in 15 days in fact the president of the arbitral institution in Singapore when I was a member of the court they know it will never take more than one week to appoint an arbitrator he would sit throughout the weekend and finish whatever on his table by Monday morning is clear all arbitral appointments are cleared one week we have a similar system in the Divine National arbitration center once again where we've taken upon ourselves that whatever the issues involved are whether to combine arbitration bring in non-signatories whether the arbitration clause or proper clause we do it in 72 hours the president will ask I'm making a subcommittee please confirm to me that you have these 72 hours and you will give me an answer in 72 hours because you do not give me an answer in 72 hours you will never get another appointment in the court I will never ask you a question again with that level of efficiency you have arbitrators appointed by institutions you can have Indian institutions which are they are trying to build but please give them some powers to appoint arbitrators to take decisions to move on to catch up with a modern international world where it's being done everywhere in the world and like I said only in India are we appointing arbitrators in the supreme court or the high courts are taking time and I can understand the high courts are busy they have a lot of important matter they have a lot of issues to discuss so all of arbitration takes a back seat to hear a section 34 matter it's heard like an appeal give me a list of dates give me facts file affidavits file more affidavits file more replies then you go to an appeal in section 37 again another round of division ben does exactly the same work again so that by the time your award leaves the high court you have good 7 or 8 years down the line maybe 10 so as young arbitrators who are now trying to bring about a new culture first element is speed that's why you are going to an arbitration you want to do it as fast as possible as quickly as possible we have built enormous laws now and excellent laws about conflicts of interest as arbitration arbitration for the same party etc you also give a declaration I have time to do it with the time fixed within the act not time when you have time so the laws are getting more and more progressive get familiar with them if you want to be an arbitration lawyer you cannot go to the arbitrator and say look sorry sir I've got a matter in court can you adjourn my arbitration sorry sir I can't come all day because I'm in court all day I can only come in the evening you should as an arbitration lawyer telling we are arbitrated this is not acceptable I'm not willing to come in the evening we have whole day 11 o'clock to 5 o'clock with our standard time or 10 o'clock 10 30 to 5 I want to do the arbitration whole day I want to finish it if I as a lawyer can do it why can't the arbitrator why can't you insist on the arbitrator so we will insist on a whole day hearing if you're not free this week let's do it next week but please do not go to the arbitrator then say I want an adjournment sir I'm busy I've got a court matter here I've got a court matter there and decide whether or not you want to be an arbitration lawyer if you want to be an arbitration lawyer it takes priority over your court work your court work is put aside and you say to the other side if you apply for adjournments I'm going to oppose it I'm sorry I've kept the whole day free the day I kept it free we booked a room also which costs money the clients are paying for all this clients are paying for our time we will do the work the whole day if you can't do it you go where you have to and come back we are going to carry on the work so I request young lawyers to do that some of you get appointed the arbitrator insist on that and say I'm sorry I've kept the day free there's no way I'm giving an adjournment you're not ready you don't have paper you've got court work I can understand medical emergencies we all have we all have some personal emergencies we are required to take time but otherwise by and large follow the policies of international arbitration simply no adjournments and from day one fix the whole period for the arbitration okay you'll file your statement of claim in six weeks replied six weeks counterclaim in the same six weeks affidavits and so and so time and the hearings will be on so and so date and the hearing dates will not change if the witness is not there then I won't hear him simple as that I will not hear that like I said there are always exceptions on medical emergencies and some personal emergencies we understand but not that I'm busy somewhere else I've got something else to do I've got something happening here please be firm there will be no adjournments when not a court arbitration of adjournments when arbitration for hearing and there will be no adjournments if you you've got your timetable set whether six months in advance make your timetable be responsible be responsible to yourself to your clients your witnesses have respect for your arbitrations and do not ask for adjournments because an adjournment can disturb us and can cause six months adjournments that's the last thing you want to do is an arbitration to give it worse and worse the answer is to sum up what I'm saying if you want to do arbitration as a lawyer first learn some cross examination whether you learn it with a senior an arbitration whether you learn it in a quarter floor it'll depend on person to person your own circumstances and how you are situated but please learn that tomorrow or day after a young dog you will have to do that cross examination yourself and whenever a senior says I'm busy it's very good I'm very happy I'll do the cross examination and force him to let you do it it's the only way you will learn you will not learn only by watching others do it you'll learn it by doing it yourself and be prepared as much as your senior is prepared you must be more prepared than him give a list of questions to ask give a list of potential answers that he will get and if we get this kind of answer then your whole cross examination may be irrelevant how do you divert it to some other subject what are the relevant topics give 10 relevant topics so we need to deal with these if he gives you admission on five of them let's concentrate on the other five it's like anything else it's a study study study and cross examination frankly is an art which unfortunately you will not learn in court you will have to learn that in the arbitration or maybe district courts or maybe criminal courts I'm not sure where each will have their own set of circumstances where he can do it having given a broad picture let me just give you a little bit of a hint of where India has gone a lot more progressive you have the concept of a group of company doctrine what is a group of company doctrine which says that even if you're not a signatory to the arbitration but you've been involved either in negotiations or in the contract in a termination then you can be made a party to the arbitration and this was invented in France my own original case called now chemicals and it's arbitration law arbitrators made this law not the court the arbitrators permitted it and the courts then confirmed it England takes a different view and they said look it seems to be wrong why do you think we have companies that ring-fenced I have a company I have a corporate entity so if I'm not a signatory to the arbitration I shouldn't be made a party and therefore you cannot make non-security the party in England in England India took up the view they took up the French view say no you can make then one learned judge and very sensibly put the view look I'm not sure the decision is right is there a legal basis to this argument or is it an economic basis you're saying that these very often in India what happens is a very small subsidiary company doing end drink into the contract sign the machinery is coming from the parent company which is not a signature to the arbitration the technology is coming from a third company the commissioning is coming from a fourth company and if there are delays or defects what do you do the company sign a contract say look I have nothing to do with all this I just had to construct that's all my job was in the machinery came later in other parts so India took a very pragmatic view no we'll make all the company the party to the arbitration so that it's a responsible whole of the parent company if it's not done properly there's a dispute the arbitrator will decide who's right who's wrong in England and you have a divided view in India Singapore unfortunately is followed the English view the French view is followed in Germany Switzerland and more of the European countries the bigger issue here is how do I enforce my international award after all in England the public policy is there non-cigarette cannot be joined so if I have non-cigarette joined in India and I go to enforce it in England are the English scores going to give you that you are non-cigarette they're not allowed in by the public policy in England you can't enforce your award here irrespective of the fact that you're all parties to the New York convention I only bring this up and this is an issue going across international markets across the world I don't have a right answer if you wish is the correct view which is the wrong view but many countries permit non-cigarettes to be joined other countries following English command or don't permit it can you enforce the awards in both countries I guess time will tell I don't have an answer yet for you so I thought I'll give an overall picture of arbitration and see whether some of you think that arbitration is a career for you I can assure you it is the most rewarding career it's the most satisfying career and I have done it for many many years and so have several other arbitration practitioners internationally than domestic the MS admit but have had a very satisfying career over this with great success because otherwise you cannot do commercial work in India there is no other solution you're not going to get any decisions in court with that because I think I've given a broad picture of that yes advising people commercial and I will now I think you have put it across and in my own way if I can submit what you have said that you have said that one should understand how you have to appreciate the time because time according to you is the best essence to make a mark as an arbitrator then you have said that cross examination is an art which you have to do because I have also examined we are doing arbitration the art of cross examination has to be learned in the best settled manner then you have given the fact that one should understand the speed and the time should be considered then the work balance how it has to be maintained in the right manner so that your image doesn't carry forward or the delay on the part of the lawyer or the arbitrator itself doesn't give a good handling and we have also explained to the how one has to examine the different aspects I would just like to understand from you your experience once you are the lead counsel in the latest constitutional judgment of the arbitration what has been ultimately laid down if you could just explain it in the five minutes and what is the caption of the judgment that follows a dark chemical vision then look if a party is involved in the arbitration either by way of some form of supplier some form of technology and has participated possibly in the negotiations definitely in the working of the contract then you can make them in the parties to the arbitration and the supreme court had originally taken that view and Justice Ramana when you were supreme court judge sitting the bench and look I have some doubt on this view but this seems an economic concept you are not a legal concept the economic concept because under section 45 first it was done only in foreign arbitration based on the word that section 45 had the words claiming through and then the arbitration act with amended and section 48 for the domestic arbitration also had the words claiming through so we argued before the bench this words claiming through may not be enough a judge of the supreme court and a three judgment has put some doubt on it or why don't we look at the definition under section 7 or what is an agreement because the court describes agreement has been writing using the words whether written or not which means there must be an agreement in writing and the or not applies to parties who are participating in the contract but are not submitted to the arbitration so for some of them there is a written agreement but they may not be signatories to the written agreement and then applied the group of companies doctor and so in India as with the parent company sitting in America or US on basis of whose technology or machinery you actually entered into the contract but they're not signatories now they say you can make them party to the arbitration so some of the claims in infrastructure will be large and you want to enforce against them you can't enforce it only against a small Indian company which may be a consortium and may have a capilla or just two or three crores of rupees you can't enforce it against them so now you can enforce it against the parent companies also because they participate in the arbitration whether they are signatories or not we argued this was the supreme court and fortunately the supreme court accepted our view and what I said is the real doubt is and I'm still have a doubt can you enforce it in England which takes a completely different view saying the whole idea is to have a company that has regulated boundaries and if it is not a signatory and doesn't want to be a signatory you can't make them party to an arbitration some countries have taken the contrary view some countries have taken a view some countries you have multiple contracts when you have large infrastructure projects somebody doing the cementing somebody doing the supply of goods some other company is providing some technology so you have six different companies doing the contracts you can even combine the contracts into one arbitration the problem is some of them A don't have an arbitration clause some of them an arbitration clause one will say I want CAC arbitration one will say I want Dubai arbitration and say Hong Kong if the clauses are not incompatible like one says you have a sole arbitrate or one says you have three arbitrate contemplate the general feeling on transnational law is you can combine all those arbitrations into one contract we've done that in Dubai we've done that in Singapore regularly the courts you know all these five contracts will be heard by a sole arbitrator now who not a sole arbitrator or a panel now who would appoint the panel each party has a right to appoint their own arbitrator we say we want five arbitrators do we say no CAC court will appoint a panel of three as a CAC court will appoint a panel of three so you have no choice I'm giving a full panel and arbitrator to arbitrator will consider whether each party can have independent counsel or not or force to choose a single counsel with a single point of view and then once the award is over they may have an interstate arbitration among themselves say this is the award now how much belongs to me how it belongs to you how much belongs to you the arbitrator who dealing with a larger contract can't decide that issue then you can decide we say you decide amongst ourselves who is responsible for how much delay or who is responsible for so much money so this transnationary has evolved in the world India fortunately is keeping up with the world and permitting this in some cases not permitting this in some cases appropriate or not they can't quite be a hard and fast about that it has to be done on a case-to-case basis in regards I hope I answer your question on that I thought that we should as they say straight from the process mouth so thank you sir for sharing your knowledge we look forward so that we can learn the nuances of arbitration from a person who is well known not only across the globe thank you sir for sharing your knowledge thank you very much everybody thank you for your time and attention and if you have any questions you can please send them to Vikas by email Vikas share with me what you think are the important questions and happy to respond to them sir there is one question it says in view of the mediation act 2023 do you think that the statute will take over the arbitration ecosystem especially due to the no just repeat that Vikas I didn't quite Vikas do you feel that the mediation act 2023 will take away the effect of arbitration act because mediation you know works on a different tangent than arbitration and it can have a settlement ultimately rather than section 34 37 okay let me let me tell you my experience in mediation two fold one is in large in larger arbitration mediation seems unlikely for the reason that the companies at the most senior level have already discussed the issue whether they can solve it or not if they cannot solve it at that highest level when right down to the co level etc it's unlikely the mediation will work for smaller mediation if you have a good meet and I repeat and I'm saying this with a sense of responsibility because I've been to one of two mediation conferences and I asked the mediators there what kind of training do you have they said what do we need for training so we are loyal we try and get them together I said no you're not going there to do strike a bargain somebody says I want 100 you are somebody says I'm going to give 20 you are saying no to give 35 40 I said no the art of mediation very different the art of mediation is you understand each case the claimants and the defendants when you have a mediation you first have a room claimants say this case defendants say this case then you go to the claimant and say listen I studied your case these particular claims are unlikely to fly they seem completely stretched pushing your luck it won't happen so why don't you consider dropping these claims then you go to the defense and say look some of the defenses aren't going to work some of these counter claims may not work but they are very very unlikely so why don't you reduce your expectation so you try and build a rapport with them based on their case not just on a gamble of numbers you are saying 20 I said 25 somebody said 30 the way if you have studied their case as a mediator and you have some experience you say look at these claims are unlikely to be granted they are exaggerated I think these claims have some sense tell me how much are they worth and why do you think they are worth so much are you willing to give up a little bit of that then you are going to talk to the defendants always separately not in their presence because if the mediation doesn't work it will go into the arbitration it is not fair to give each one defenses and claims away so you talk to the defendants separately say look you have no defense against this claim the man has done the work you short pay them you have to pay him as per the contract I am not saying pay him more than the contract value he has supplied this then you found you could not use it that is not his fault if you sell it in the market you will get some money so reduce your claim reduce it so you can bring a balance between the claimant and the defendant if you understand their claims and defenses in some detail so please treat the mediator almost like an arbitrator so he was studied it and says if I was an arbitrator I wouldn't grant this claim I wouldn't grant this defense so he knows what he is talking about then only the parties are impressed that you studied their case you evaluated their cases as to what are likely to succeed what are not then mediation works like a charm it works relatively for smaller claims in my own experience for large claims this has already been discussed at the co-level and not worked and it's unlikely as a mediator or a lawyer you can bring about any settlement that's a little quick background so thank you sir for sharing your knowledge and I am quite sure that a lot of people will continue to be in this knowledge sharing process thank you everyone stay safe thank you very much


Jack Daniels is suing this dog toy manufacturer, trademark infringement and dilution. Here with Natalie, she's our in-house trademark expert. Parity is a defense to infringement. If it's clear to consumers that somebody making fun of a brand that may provide a defense to this. True, but I would be on the side of Jack Daniels where I would put out that other people using it even with Parity can dilute the mark. Which I know Jack Daniels has definitely been upholding over many, many years. Looking at them side by side, like if you saw that, would it immediately, like you think of Jack Daniels? If I saw this in Petco, Yes. I would just think it was a liquor bottle. I wouldn't think Jack Daniels. I would think Jack Daniels. Bad Spaniels, yes.