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Alternative Dispute Resolution (ADR) industry is an ever-evolving domain in legal services which provides the resolution of disputes through mediation, arbitration, conciliation, and negotiation. In recent times, there has been a surge in demand for cost-effective, flexible and less time-consuming solutions to legal disputes especially in the corporate sector and this leads to numerous growth opportunities for coming law students and legal professionals.
On a Sunday afternoon, experts in a panel discussed the various aspects of ADR to simplify the complexities of the industry and deliver their experiential wisdom to navigate the tumultuous ride of this coming-of-age career in the legal field.
The panel started churning their insights in a post-lunch session humorously addressed as a “graveyard session” by one of the speakers Divyam Agrawal, Equity Partner, J Sagar And Associates.
He further delved deeper and painted the broader picture of the good, bad, and ugly aspects of recent developments in the ADR industry. The setup of the arbitration forum of India by the Supreme Court and institutionalisation of arbitration are some of the developments that show the grass is greener on the other side but on the other hand there is the recent judgment of the Supreme Court of India in Delhi Metro Rail Corporation (DMRC) Vs Delhi Airport Metro Express (DAMEPAL) case in which it set aside the arbitral award by exercising its extraordinary curative jurisdiction power under Article 142.
This judgment has set an anti-arbitration environment and somewhat goes against the initial intent of the Arbitration Amendment Act, of 2015 enacted to minimise court interference in the arbitration. However, the experts' concerns are not limited to this only. One of the recent developments raised by most of the experts in the discussion is the circular issued by the Ministry of Finance which recommended the restriction of the arbitration clauses in government procurement contracts to disputes less than Rs 10 crore. The majority of experts regard this circular as a red flag for the ADR industry.
Tejas Karia, Partner and Head Arbitration, Shardul Amarchand Mangaldas explains further the paradoxical dilemma of this circular recently issued which questions the intent of the government to make India the global hub of arbitration and mediation.
He adds that the Ministry of Law and the Ministry of Finance are on different grounds on this circular as the Law Ministry says that they have nothing to do with this circular which seems implausible because such a circular can not be issued without taking them in the loop.
The rationale of the government that this circular is only for public procurement contracts is also confusing because all EPC contracts include procurement and most of the construction contracts are EPC. Therefore, Tejas Karia finds this circular surprising. However, He adds that CII has written communication to the government to look into this circular. He also suggested solutions for the government's concerns which are drafting good arbitration clauses, going for institutional arbitration, and having dedicated benches in the court.
Post-Covid, there is a drastic change in work culture in the legal industry, and technology intervention is increasing in document management, drafting, and pleading. Therefore the coming professionals in ADR also need to equip themselves with the necessary skill sets.
Mehak Oberoi, Legal Head, Hydro APAC, GE, Vernova prescribes to students, “What’s got up to you here not going to take you there.” She emphasised that students need to be geared up and brace themselves for a new era. There is a whole new set of crafts that needs to be cultivated by students because there is much more is about to come shortly like legal proceedings in Metaverse and only long-term farsightedness with the necessary skills can make you a successful professional in ADR.
On a similar note, Iram Majid, Standing Counsel, Central Government, Executive Director APCAM remarked that good training and accreditations from reputed institutions are required to develop the pool of exemplary arbitrators and mediators. She stressed that any short-term certification is not enough for students to have a career in ADR. They must analyse the efficacy of the certification before enrolling in it. She adds that networking is an important aspect of ADR professionals.
She says, “Your network is equally important as your work”
Pavit Singh Katoch, Group General Counsel, Inshorts says that with the advent of smart technology, disputes are going to be complex. Indian courts are not on similar levels as their foreign counterparts therefore most tech disputes are referred to ADR forums, also there are privacy breach concerns attached to such disputes so these cannot be discussed in open court. He advised budding students who want to make a career in ADR to adopt technology and try to get a hang of arbitration and mediation through internships.
In conclusion, the entire panel discussion moderated by Kanika Arora, Founder And Managing Partner, Nirka Law Advisory enriches the student community with some golden pieces of advice.
