Mr Alok Vajpeyi on Arbitration in India

The Legal Arc Volume 1 Issue 1 Interviews

Mr Alok Vajpeyi

Interviewed by Rashi Goel

Mr Alok Vajpeyi is an associate, working with the Disputes Team at Khaitan & Co based in Mumbai, and a qualified Tribunal Secretary certified by Hong Kong International Arbitration Centre. He is an LL.B from the Institute of Law, Nirma University, Ahmedabad.

His core practice areas are commercial arbitration, litigation under Indian Arbitration and Conciliation Act, 1996, and general commercial litigation before the National Company Law Tribunal. He also volunteers as a Remote Coach at the Moot Academy of Swiss International Law School and has adjudicated several Alternate Dispute Resolution Moots, including the Frankfurt Investment Arbitration Moot.

INTERVIEWER

What drew you to the world of arbitration and when did you start laying the foundation for a career in this field?

MR ALOK VAJPEYI

In the third year of my law school, I was allotted NLS-Trilegal International Arbitration Moot which is organized by NLS, Bangalore. Arbitration was a completely new field for me, and numerous seniors in my college told me that it is a very tough moot and arbitration in itself is very tough. We were adjudged as Semi-Finalists in the moot and in hindsight, I think that moot defined me. Prior to the release of the problem; I read about International Arbitration, domestic arbitration, and Investment Treaty Arbitration, and during this process, my interest developed towards arbitration. I understood how important it is for India considering the huge backlog of cases and how important it is for any investor investing in any other country. So, conceptually, I liked arbitration.

Considering a bright future of arbitration in India, I improved my understanding of the subject and did internships involving arbitration related work.

INTERVIEWER

What do you think is the future of Arbitration and Alternate Dispute Resolution in India? Do you think there are any legislative aspects that need to be ironed out to make arbitration more feasible, accessible, and popular?

MR ALOK VAYPEYI

In India, there are numerous problems when it comes to arbitration. Indian courts have struggled a lot with regard to concepts of seat and venue in arbitration. Consequently, there are parallel legal regimes which are running. The general impression of India has been that it carries a lot of uncertainty when it comes to arbitration procedure. Lately, Indian courts are trying hard to portray India to be a pro-arbitration jurisdiction. However, considering frequent amendments to the Indian Arbitration Act, a level of uncertainty remains. So, as an investor who wants to decide whether we need to choose a particular jurisdiction as a seat of arbitration or not, I’ll prefer those countries whose arbitration procedure does not changes frequently.

Considering the huge backlog of cases, the future of ADR in India seems to be promising but there’s a lot of groundwork which is required to be done, for example, in India the mindset of people is that arbitration is mostly a weekly affair or an evening affair; so it’s not running parallel to litigation. There is a hierarchy, you still see litigation to be more promising. In several foreign jurisdictions, there is a dedicated arbitration bar. There are practitioners who only do arbitration, unlike India. In India also, there is a conscious effort to make an arbitration bar but it’s still under process because people who are doing litigation and arbitration are the same.

We need institutions to train the arbitrators. I think the legislature as well as the judiciary is trying hard to push institutions in India. Mediation has also got a lot of push through legislation. And there’s a committee appointed which is working on the mediation law in India as India has signed the Singapore Mediation Convention. So, there are a lot of efforts in that arena. We can anticipate that India might have a bright future in ADR but the stakeholders have to work diligently to achieve that goal.

INTERVIEWER

What are some skills that a successful arbitrator must have, and how are they different from that of a conventional lawyer, advocate, or judge?

MR ALOK VAYPEYI

Well, numerous tool kits and guides are available which contemplate the qualities of an arbitrator. I will just mention four or five skills that an arbitrator must have. I think the role of the arbitrator is quite similar to the role of a judge. As an arbitrator, you need to have a subject-area expertise. For all the young practitioners who want to be future arbitrators, you need to understand that arbitration in itself is a procedure. You need to develop a subject-area expertise to become an arbitrator.  So, the first quality is subject-area expertise.

Knowing the arbitration procedure, what powers you have, how you can expedite the arbitration and what interim measures you can give, what kind of jurisdiction you have; I think all of these things the arbitrator needs to be aware of.

Another important quality would be strong communication skills as throughout the arbitration, no party should feel, or no lawyer should feel, that the arbitrator is biased towards a particular party.  The arbitrator has to conduct himself or herself in such a way that it is apparent that he’s giving equal opportunities to everyone.

Fourth point is that the person should be of integrity. In international arbitration as well as in domestic arbitration, we see numerous conflicts arising. There are IBA guidelines on conflict of interest in International Arbitration which gives guidance on such relationships which can be a ground for challenge for the arbitrator. The arbitrator should ensure adequate disclosure of any such relationship.

Fifth is the commitment towards arbitration procedure. In arbitration statute of India, certain time-limits are prescribed for several stages and the Arbitrator should be committed to all the timelines and the deadlines which he gives to the parties as well as for himself for giving the award.

Finally, I think the Arbitrator should have sound judgement and is a pro at critical reasoning because once he writes the award, he needs to back it up with reasoning. It has to be a reasoned order with proper analysis of all the evidence which the parties have given. These are the broad skills which an arbitrator must have.

INTERVIEW

How has the pandemic altered work and working environment in your opinion?

MR ALOK VAJPEYI

The working environment has been affected to a great extent because you don’t have the network of people around you, there is no professional environment. When you are at home, you are managing everything: washing clothes, washing utensils, etc., which luckily, I am not doing now. So, to manage all those things with your work is not that easy. Earlier, I use to think that work from home would be the best thing but that’s not true, because the work is going on continuously in your mind and there is no start-time and end-time, it goes on throughout. You need to be ready whenever your senior/partner says that you need to get this. So, I think there’s less time for yourself because you need to divide time between your personal life and your professional life.

INTERVIEWER

How adequate do you think virtual proceedings are? According to you, what are the advantages and limitations of conducting legal procedures over virtual platforms?

MR ALOK VAJPEYI

Principally or theoretically, virtual/online dispute resolutions are effective, and it has been in discussion prior to the pandemic. However, every change requires certain time, there’s a transition time for every change. Similarly, if the litigation proceedings are happening through virtual platforms, there will be certain time which will be required by the stakeholders to adjust with it.

In the Indian scenario, adoption of virtual hearing has been there, and the courts are hearing various matters through remote hearing. I personally believe that there would be some kind of virtual court which would remain active after the pandemic as well, hearing certain kinds of disputes. There are numerous advantages of virtual proceedings:

First being accessibility, people or witnesses don’t have to travel, they are just a laptop away. I think accessibility has increased to a great extent. 

Second is the reduction in time with regard to filing of the proceedings since physical filing of documents consumes more time. Further, it will save your physical space with respect to physical legal proceedings. In courts, a lot of files are kept and the whole court is filled with files. However, if we do it on a virtual platform, then everything is electronically stored. So, you can save one room which is filled with files if all those files can be stored electronically. I think it would lead to better accountability because everything is uploaded virtually, so you can see who has removed what things and who has uploaded what. So, the accountability will be increased to a greater extent which is another plus point in doing virtual hearings.

Now coming to the cons or the problems, there are certain limitations to virtual proceedings. First is the technology. You need better technology which can work throughout the country giving great support to all the lawyers with not many disruptions. One doesn’t want a situation where lawyers have bad network and there are technical glitches throughout. For the implementation of virtual hearings, you need a very strong network across the country wherein every lawyer cannot come up with the excuses that they don’t have a good internet connection. More importantly, the government should also come up with certain free WiFi spaces. Otherwise, access to justice will be dependent on having a WiFi connection, we don’t want that scenario to happen. There has to be a continuous supply of electricity and power, you cannot imagine a virtual hearing going on and then the power goes off and then everything goes off.

The courts and lawyers will require a lot of investment in the hardware and software. Moreover, there is requirement of frequent training sessions for the lawyers in terms of using the technology, that is, how to upload different soft files on the platforms given by the courts. So, training for lawyers is a must. Then, translation-related services on platforms need to be stringent because there would be some witnesses speaking in regional languages. So, you need to have some translators on the virtual platform itself. The courts should also ensure that there is no misuse of documents since all the documents are on a virtual platform, there is a chance that some hacker can just take all of the documents. So, there has to be a very stringent policy in terms of maintaining confidentiality and security of the documents. And I think these are the broad areas where the government needs to work.

INTERVIEWER

What was law school like for you? Looking back, is there something that you wish you had done differently?

MR ALOK VAYPEYI

There are a lot of things which I wish I would’ve done differently. I hardly interacted with people when I was in my law school. So that’s definitely one thing which I would have changed: to network with more people, to know more people, to interact with more people because this profession requires a lot of networking; it’s part and parcel of a lawyer’s work to network with people. Your client referral comes through networking, your invitation to conduct guest lectures, etc. comes through networking.

The second thing which I believe is of immense importance is reading judgements. In law school, we hear that from all our teachers, and in fact, during our internships also. I think it’s an art, it’s so important that it cannot be emphasized enough. Whoever wants to do well in law should read at least a couple of judgements in a day. Your learning improves by reading judgements.

I think these are the two key things I would’ve worked upon. Of course, there are other small things as well, but these are the two major things. 

INTERVIEWER

Do you have any memorable experiences in your experience with arbitration mooting? Could you divulge stratagems to be deployed to ensure victory in these tournaments?

MR ALOK VAYPEYI

Okay, the second part of this question is a little tough, nothing can ensure victory. Be it actual cases or be it moot court, the world is subjective; the judges sitting there in the courts, the judges sitting in arbitration moots, the arbitrator sitting, everybody has their subjective viewpoint. There is nothing which can ensure your victory.

Coming to the first part of the question, a memorable experience would be my first arbitration moot where I went till semi-finals, and the best part was that our semi-finals were conducted at the Taj, Bangalore. I was delighted to argue before Murli Neelakantan, Rishabh Gupta, and Anuradha Agnihotri. It was a great experience which I had in my mooting journey. There are few others as well, I went to Kuala Lumpur and Hong Kong to represent my college in different moots.

Coming to what should be done to perform well, as I said, it’s very subjective. People have different opinions, and the sooner you accept this fact, the better it is for you. So, how I would recommend people to do well in moots would be firstly, to work on your oral skills. If you enter international moots, there is one thing which is extremely important, and that’s your oral skills which is not the case with the domestic moots. In domestic moots, you need to have great subject-area knowledge because the judges will grill you a lot. So, mostly they’re hot benches asking you numerous questions, and they test you on the concepts involved. Therefore, you should be well-versed with the concepts and its related issues involved, and should know the case of the opposite party. Because mostly, judges sitting in a moot court, or in actual court also, would question relating to the case of the opposite party.

Structuring your arguments and laying down a road map in front of the judges is extremely important too.

The third point, which is of immense importance, would be how you tackle the questions of the judges. So, one smart way of doing that is to use various fillers to avoid any kind of abrupt pauses. Let’s say the judges ask some questions, you can say “The counsel understands the concern of the tribunal/the court”. When you say that line, you get time to think. Various participants, when the question is asked, take a moment and they are silent for a good five to ten seconds. To avoid that, you can use certain fillers. Do not overdo it. But yes, using fillers is a good strategy.

The other strategy could be to structure your arguments in such a way that the question of the judge takes you to your other submission. Just imagine you’re anticipating a question from the judge, and the judge asks you that question, you can say “and that precisely brings me to the second part of my argument”. So, this is how the structuring has to be done for your whole issue which you are arguing. A lot of time goes into it.

The final point is wait and see if the tribunal or the court is with you. Don’t follow a rigid speech because I have seen participants reading a speech without even noticing whether the tribunal or the judge is with them. Same goes for the courts as well. Wait until the bench opens that page of the judgement, and then you proceed. These are broad areas, there are a lot of things to talk about. Mooting in itself requires a separate session altogether. But these are the broad points.

INTERVIEWER

Is there any additional advice or insight that you would like to share for students who want to enter the field of arbitration or are contemplating arbitration as a career?

MR ALOK VAJPEYI

I would give a word of caution to all those who want to venture into the field of arbitration or ADR. If you’re fascinated by seeing the success stories of people who are into arbitration, be ready to read a lot. Moreover, written advocacy is extremely important because arbitration is more about written advocacy, that needs to be worked upon.

That could be a starting point if you have interest in arbitration. I think there’s no one who can tell you that this is the right way, because it depends on what’s the best scenario at that particular point of time; let’s say you are in your fifth year, how is the market, which kind of matters are increasing, accordingly you have to strategize. Also, working on subject-area expertise is important. Seeing that construction law matters are coming up, you need to build a knowledge of construction law. Similarly, maritime law, sports law, so on and so forth.



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