13 October 2017
YSIAC Oral Advocacy Workshop 2017

By Vibhor Jain, Associate, Luthra & Luthra Law Offices

On the evening of Friday, 13 October 2017, a room full of arbitration luminaries and enthusiasts engaged in an open dialogue on the “art” of oral advocacy and conducted a mock application for emergency interim relief.

The Emergency Arbitrators for the mock scenario comprised Mr Gary Born (President, SIAC Court of Arbitration; Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP), Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers), Mr Ciccu Mukhopadhaya, SC (Supreme Court of India), and Mr Harish Salve, SC (Member, SIAC Court of Arbitration; Blackstone Chambers).

Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC) kicked off the workshop charting how SIAC had become a major player among international arbitral institutions, and one of the preferred arbitral institutions amongst Indian parties. This was followed by a brief introduction to the mock case scenario by Mr Rishab Gupta (Member, YSIAC Committee; Partner, Shardul Amarchand Mangaldas & Co). Thereafter, the ball started rolling and the Preliminary Objections Session began.

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Left to Right: Gary Born, Toby Landau QC and Ciccu Mukhopadhaya, SC

Members of the audience

The first three sets of counsel dealt with three jurisdictional objections raised in the mock case scenario: (i) whether, by the reference to “Singapore Chamber of Commerce”, a non-existent entity, the parties had intended to choose SIAC as the administering institution for arbitration; (ii) whether mediation talks between the parties were a pre-condition to arbitration and had been satisfied; and (iii) who were the proper parties to the arbitration.

On the first jurisdictional objection, counsel for the Claimant, Mr Sonal Kumar Singh (Partner, M/s A. K. Singh & Co.), stressed how certain arbitral institutions had become synonymous with geographical areas, and that the reference to “Singapore” must signify SIAC. On this point, Mr Landau QC was quick to point out that by the same token, the words “Chamber of Commerce” could signify the parties’ intent to choose the ICC. Counsel for the Respondent, Mr Moazzam Khan (Member, YSIAC Committee; Co-Head, International Disputes Practice, Nishith Desai Associates), argued that it was not possible to infer from the clause any intention as to “which institution” and “where”, and was only possible to infer that there was an intention to arbitrate.

On the second jurisdictional objection, Mr Prateek Bagaria (Partner, Singularity Legal), argued that the arbitration clause would only “mature” upon the activation of the temporal jurisdiction of the tribunal after the stipulated time period for mediation talks had expired. This led Mr Born to wonder aloud, “Are arbitration clauses teenagers that they would ‘mature’?”, which led to much laughter from the audience, including Mr Bagaria. Next, counsel for the Claimant, Mr Anirban Bhattacharya (Partner, Luthra & Luthra Law Offices) submitted that the agreement to mediate, being an agreement to agree, was not enforceable under the governing law, which in his submission was Indian law. Mr Landau QC inquired whether it was artificial to submit that the “agreement to mediate” was illegal, and separate it from the “agreement to arbitrate”, when both the arbitration and mediation clauses were subordinate clauses of the same clause in the agreement. Mr Bhattacharya responded that while both subordinate clauses were related, only the latter was an arbitration agreement, and hence, different laws would in his opinion apply to both.

On the third jurisdictional objection, submissions were made for the Respondent by Mr Lomesh Kiran Nidumuri (Partner, IndusLaw) and for the Claimant by Ms Sheila Ahuja (Of Counsel, Allen & Overy). The discussion between the counsel and the arbitrators revolved around exceptions to the rule of privity of contract, and how, given that the emergency arbitration mechanism was a provisional measure, the emergency arbitrator (EA) was only required to take a prima facie view on proper parties.

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Left to Right: Moazzam Khan, Prateek Bagaria and Lomesh Kiran Nidumuri Left to Right: Sonal Kumar Singh, Anirban Bhattacharya and Sheila Ahuja

After a short break, the Workshop proceeded to the fourth session, with counsel making submissions on the applicable test for interim relief. Ms Elodie Dulac (Partner, King & Spalding), who acted as counsel for the Claimant, submitted that the essential conditions were fulfilled: there being presence of risk, causation of irreparable harm, and a prima facie case on the merits. She also submitted that the test of urgency was also satisfied, namely “whether harm could happen before an award was passed on the merits”. However, Mr Born was of the view that such tests would make the threshold for the grant of interim relief too low. Acting for the Respondent, Mr Promod Nair (Founding Partner, Arista Chambers) submitted that the three jurisdictional objections submitted previously showed the absence of a prima facie case, and that the EA ought to pass an order that was “necessary”, not “appropriate”, thereby signifying a higher threshold for grant of interim relief.

The fifth session pertained to whether or not emergency interim relief should be granted by the EA. Mr P.V. Kapur, SC, argued for interim relief to be granted since there were risks involved as one of the Respondents did not own any known assets. Acting for the Respondent was Mr Landau QC (who had switched from being an EA to counsel), who submitted that there was no prima facie case on the merits, to which Mr Salve, SC, intervened and asked how the EA could possibly decide at the present stage that there was no prima facie case on the merits from the Claimant’s side. Mr Landau QC responded by saying the burden to prove the same, as well as the burden to prove that the Respondent was ill-intentioned and there was a risk involved if the relief was not granted, lay solely with the Claimant.

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Left to Right: P.V. Kapur, SC and Elodie Dulac Application for Emergency Relief Session

With that, the mock arbitration hearing concluded. In short, these five sessions were thoroughly enlightening. What followed was even more exciting: the feedback by the Tribunal, moderated by Mr Kabir Singh (Member, YSIAC Committee; Partner, Clifford Chance). Mr Born was extremely impressed by the performance of the various counsel under fire from what he admitted was “not an easy tribunal”. Mr Landau QC, with a good sense of humour, chimed in with a remark that given the time allotted and the complexity of the problem, “everyone was brilliant, except counsel for the Respondent in the last session (himself)”!

The panellists then discussed the challenges affecting the growth of arbitration globally. Mr Landau QC and Mr Salve, SC emphasised the need to “unlearn”, noting that there needed to be more attempts to make a departure from “litigation advocacy” towards “arbitral advocacy”.

Talking further about such a transition, especially for young professionals, Mr Mukhopadhaya, SC, and Mr Born said that young professionals should enter into the world of arbitration from the very beginning, but never leave courtroom lawyering behind.

“Litigation and arbitration have as many similarities as dissimilarities”, Mr Born added. Mr Salve, SC spoke about how to “read” a tribunal, by trying to sell it an idea and understand their thought process. Mr Landau QC emphasised that the audience was neither the opponent, nor the client, but the tribunal. Mr P.V. Kapur, SC, spoke about the need for more cross-examination experience for young professionals, with Mr Salve, SC, noting that no case should be too small and every opportunity should be seized by young professionals.

On language barriers in arbitrations, Live Note service providers and transcriptions were recommended as the expensive and cheap options respectively. The panellists were also asked to recount their “best as well as worst experience professionally” to much interest and laughter.

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Left to Right: Gary Born, Harish Salve, SC, Kabir Singh, Toby Landau QC, P.V. Kapur, SC and Ciccu Mukhopadhaya, SC

Toby Landau QC and Rajiv K. Luthra with members of the audience

In the Closing Remarks, Mr Nish Shetty (Partner, Clifford Chance) applauded SIAC for organising the workshop which offered invaluable insights into the practice of arbitration through the mock arbitration. He also mentioned that the growing practice of arbitration in India will lead to the emergence of an “arbitration bar” and that such events were contributing to the same. He expressed hope that arbitration would go from being an “extra-curricular” to a full-time career. He expressed gratitude to the counsel and members of the EA Tribunal for taking time from their busy schedules for what was, indeed, a unique night of learning.

(The YSIAC Oral Advocacy Workshop was well-received by the Indian legal and business community and attracted a total of 145 delegates, comprising practitioners, in-house counsel and academics.)
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